[ ]
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
OR
|
||
[X]
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
For the fiscal year ended
December 31, 2018
|
||
OR
|
||
[ ]
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
For the transition period from _________________ to _________________
|
||
OR
|
||
[ ]
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
Date of event requiring this shell company report _________________
|
||
TOP SHIPS INC.
|
(Exact name of Registrant as specified in its charter)
|
(Translation of Registrant's name into English)
|
Republic of the Marshall Islands
|
(Jurisdiction of incorporation or organization)
|
1 Vasilisis Sofias and Megalou Alexandrou Str, 15124 Maroussi, Greece
|
(Address of principal executive offices)
|
Alexandros Tsirikos, (Tel) +30 210 812 8180, atsirikos@topships.org, (Fax) +30 210 614 1273,
1 Vasilisis Sofias and Megalou Alexandrou Str, 15124 Maroussi, Greece
|
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
|
Title of each class
|
Name of each exchange
on which registered
|
|
Common Stock, par value $0.01 per share
|
Nasdaq Capital Market
|
|
Preferred Stock Purchase Rights
|
Nasdaq Capital Market
|
NONE
|
(Title of class)
|
NONE
|
(Title of class)
|
Yes
|
No
|
X
|
Yes
|
No
|
X
|
Yes
|
X
|
No
|
Yes
|
X
|
No
|
Large accelerated filer
☐
|
Accelerated filer
☐
|
Non-accelerated filer
☒
|
Emerging growth company ☐
|
X
|
U.S. GAAP
|
International Financial Reporting Standards as issued by the International Accounting Standards Board
|
|
Other
|
________ Item 17
|
________ Item 18
|
|||
Yes
|
No
|
X
|
Yes
|
No
|
X
|
Page
|
||
PART I
|
3
|
|
ITEM 1
|
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
|
3
|
ITEM 2.
|
OFFER STATISTICS AND EXPECTED TIMETABLE
|
3
|
ITEM 3.
|
KEY INFORMATION
|
3
|
ITEM 4.
|
INFORMATION ON THE COMPANY
|
34
|
ITEM 4A.
|
UNRESOLVED STAFF COMMENTS
|
57
|
ITEM 5.
|
OPERATING AND FINANCIAL REVIEW AND PROSPECTS
|
57
|
ITEM 6.
|
DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
|
83
|
ITEM 7.
|
MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
|
87
|
ITEM 8.
|
FINANCIAL INFORMATION.
|
89
|
ITEM 9.
|
THE OFFER AND LISTING.
|
90
|
ITEM 10.
|
ADDITIONAL INFORMATION
|
90
|
ITEM 11.
|
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
109
|
ITEM 12.
|
DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
|
110
|
PART II
|
110
|
|
ITEM 13.
|
DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
|
110
|
ITEM 14.
|
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
|
110
|
ITEM 15.
|
CONTROLS AND PROCEDURES
|
111
|
ITEM 16A.
|
AUDIT COMMITTEE FINANCIAL EXPERT
|
112
|
ITEM 16B.
|
CODE OF ETHICS
|
113
|
ITEM 16C.
|
PRINCIPAL AUDITOR FEES AND SERVICES
|
113
|
ITEM 16D.
|
EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
|
113
|
ITEM 16E.
|
PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
|
113
|
ITEM 16F.
|
CHANGE IN REGISTRANT'S CERTIFYING ACCOUNTANT
|
113
|
ITEM 16G.
|
CORPORATE GOVERNANCE
|
113
|
ITEM 16H.
|
MINE SAFETY DISCLOSURE
|
114
|
PART III
|
114
|
|
ITEM 17.
|
FINANCIAL STATEMENTS
|
114
|
ITEM 18.
|
FINANCIAL STATEMENTS
|
114
|
ITEM 19.
|
EXHIBITS
|
114
|
|
· |
In addition to these assumptions and matters discussed elsewhere herein and in the documents incorporated by reference herein, important factors that, in our
view, could cause actual results to differ materially from those discussed in the forward-looking statements include the following:
|
|
· |
our ability to maintain or develop new and existing customer relationships with major refined product importers and exporters, major crude oil companies and
major commodity traders, including our ability to enter into long-term charters for our vessels;
|
|
· |
our future operating and financial results
;
|
|
· |
oil and chemical tanker industry trends, including charter rates and vessel values and factors affecting vessel supply and demand;
|
|
· |
our ability to take delivery of, integrate into our fleet, and employ any newbuildings we may order in the future and the ability of shipyards to deliver
vessels on a timely basis;
|
|
· |
the aging of our vessels and resultant increases in operation and dry-docking costs;
|
|
· |
the ability of our vessels to pass classification inspections and vetting inspections by oil majors and big chemical corporations;
|
|
· |
significant changes in vessel performance, including increased vessel breakdowns;
|
|
· |
the creditworthiness of our charterers and the ability of our contract counterparties to fulfill their obligations to us;
|
|
· |
our ability to repay outstanding indebtedness, to obtain additional financing and to obtain replacement charters for our vessels, in each case, at
commercially acceptable rates or at all;
|
|
· |
changes to governmental rules and regulations or actions taken by regulatory authorities and the expected costs thereof;
|
|
· |
potential liability from litigation and our vessel operations, including discharge of pollutants;
|
|
· |
changes in general economic and business conditions;
|
|
· |
general domestic and international political conditions, potential disruption of shipping routes due to accidents, political events or acts by terrorists;
|
|
· |
changes in production of or demand for oil and petroleum products and chemicals, either globally or in particular regions;
|
|
· |
the strength of world economies and currencies, including fluctuations in charterhire rates and vessel values; and
|
|
· |
and other important
factors
described from time to time in the reports filed by us with the U.S. Securities and Exchange Commission, or the SEC
.
|
U.S. Dollars in thousands, except per share data
|
||||||||||||||||||||
STATEMENT OF COMPREHENSIVE (LOSS)/INCOME
|
2014
|
2015
|
2016
|
2017
|
2018
|
|||||||||||||||
Time charter revenues
|
3,602
|
13,075
|
28,433
|
39,363
|
39,442
|
|||||||||||||||
Time charter revenues from related parties
|
-
|
-
|
-
|
-
|
1,606
|
|||||||||||||||
Total time charter revenue
|
3,602
|
13,075
|
28,433
|
39,363
|
41,048
|
|||||||||||||||
|
||||||||||||||||||||
Voyage expenses
|
113
|
370
|
736
|
999
|
1,020
|
|||||||||||||||
Bareboat charter hire expense
|
-
|
5,274
|
6,299
|
6,282
|
6,282
|
|||||||||||||||
Amortization of prepaid bareboat charter hire
|
-
|
1,431
|
1,577
|
1,657
|
1,657
|
|||||||||||||||
Vessel operating expenses
|
1,143
|
4,789
|
9,913
|
13,444
|
14,826
|
|||||||||||||||
Management fees-related parties
|
703
|
1,621
|
1,824
|
4,730
|
7,765
|
|||||||||||||||
General and administrative expenses
|
2,335
|
2,983
|
2,906
|
5,805
|
6,997
|
|||||||||||||||
Other operating (income)/loss
|
(861
|
)
|
274
|
(3,137
|
)
|
(914
|
)
|
-
|
||||||||||||
Vessel depreciation
|
757
|
668
|
3,467
|
5,744
|
6,390
|
|||||||||||||||
Impairment on vessels
|
-
|
3,081
|
-
|
-
|
-
|
|||||||||||||||
|
||||||||||||||||||||
Operating (loss)/income
|
(588
|
)
|
(7,416
|
)
|
4,848
|
1,616
|
(3,
889
|
)
|
||||||||||||
|
||||||||||||||||||||
Interest and finance costs
|
(450
|
)
|
(719
|
)
|
(3,093
|
)
|
(15,793
|
)
|
(9,662
|
)
|
||||||||||
(Loss)/gain on derivative financial instruments
|
3,866
|
(392
|
)
|
(698
|
)
|
(301
|
)
|
1,821
|
||||||||||||
Interest income
|
74
|
-
|
-
|
13
|
130
|
|||||||||||||||
Other (expense)/income, net
|
(6
|
)
|
20
|
(5
|
)
|
1,120
|
180
|
|||||||||||||
|
||||||||||||||||||||
Net (loss)/income and comprehensive (loss)/income
|
2,896
|
(8,507
|
)
|
1,052
|
(13,345
|
)
|
(11,420
|
)
|
||||||||||||
Deemed dividend for beneficial conversion feature of Series B convertible preferred stock
|
-
|
-
|
(1, 403
|
)
|
-
|
-
|
||||||||||||||
Equity (losses)/gains on investments
|
-
|
-
|
-
|
(27
|
)
|
291
|
||||||||||||||
Net (loss)/income attributable to common shareholders
|
2,896
|
(8,507
|
)
|
(351
|
)
|
(13,372
|
)
|
(11,129
|
)
|
|||||||||||
Attributable to:
|
||||||||||||||||||||
Common stock holders
|
2,896
|
(8,507
|
)
|
(351
|
)
|
(13,404
|
)
|
(11,134
|
)
|
|||||||||||
Non-controlling interests
|
-
|
-
|
-
|
32
|
5
|
|||||||||||||||
|
||||||||||||||||||||
Earnings/(Loss) per share, basic
|
$
|
413,714
|
$
|
(773,364
|
)
|
$
|
(15,955
|
)
|
$
|
(12.57
|
)
|
$
|
(0.61
|
)
|
||||||
Earnings/(Loss) per share, diluted
|
$
|
362,000
|
$
|
(773,364
|
)
|
$
|
(15,955
|
)
|
$
|
(12.57
|
)
|
$
|
(0.61
|
)
|
||||||
Weighted average common shares outstanding, basic
|
7
|
11
|
22
|
1,063,381
|
18,181,456
|
|||||||||||||||
Weighted average common shares outstanding, diluted
|
8
|
11
|
22
|
1,063,381
|
18,181,456
|
U.S. dollars in thousands, unless otherwise stated
|
2014
|
2015
|
2016
|
2017
|
2018
|
|||||||||||||||
BALANCE SHEET DATA
|
||||||||||||||||||||
Current assets
|
1,227
|
5,269
|
4,541
|
29,055
|
5,288
|
|||||||||||||||
Total assets
|
75,575
|
74,006
|
143,317
|
220,448
|
258,488
|
|||||||||||||||
Current liabilities, including current portion of long-term debt
|
9,334
|
17,577
|
20,033
|
25,581
|
36,819
|
|||||||||||||||
Non-current liabilities
|
23,712
|
22,276
|
76,022
|
87,593
|
117,388
|
|||||||||||||||
Total debt
|
19,419
|
24,226
|
84,539
|
103,949
|
140,655
|
|||||||||||||||
Stockholders' equity
|
42,529 | 34,153 | 45,521 | 107,274 | 104,281 | |||||||||||||||
Preferred stock
|
-
|
-
|
-
|
1
|
1
|
|||||||||||||||
Common stock
|
-
|
-
|
-
|
89
|
230
|
2014
|
2015
|
2016
|
2017
|
2018
|
||||||||||||||||
FLEET DATA
|
||||||||||||||||||||
Total number of vessels at end of period (including leased vessels)
|
1.0
|
3.0
|
6.0
|
7.0
|
8.0
|
|||||||||||||||
Average number of vessels
(1)
|
0.5
|
2.2
|
5.0
|
6.8
|
7.3
|
|||||||||||||||
Total calendar days for fleet
(2)
|
195
|
810
|
1,812
|
2,496
|
2,670
|
|||||||||||||||
Total available days for fleet
(3)
|
195
|
805
|
1,812
|
2,495
|
2,668
|
|||||||||||||||
Total operating days for fleet
(4)
|
195
|
796
|
1,799
|
2,491
|
2,663
|
|||||||||||||||
Total time charter days for fleet
|
195
|
796
|
1,799
|
2,491
|
2,663
|
|||||||||||||||
Fleet utilization
(5)
|
100.00
|
%
|
98.91
|
%
|
99.28
|
%
|
99.81
|
%
|
99.81
|
%
|
|
2014
|
2015
|
2016
|
2017
|
2018
|
|||||||||||||||
AVERAGE DAILY RESULTS
|
||||||||||||||||||||
Time charter equivalent
(6)
|
$
|
17,892
|
$
|
15,961
|
$
|
15,396
|
$
|
15,403
|
$
|
15,031
|
||||||||||
Vessel operating expenses
(7)
|
$
|
5,862
|
$
|
5,914
|
$
|
5,470
|
$
|
5,386
|
$
|
5,552
|
||||||||||
General and administrative expenses
(8)
|
$
|
11,974
|
$
|
3,684
|
$
|
1,604
|
$
|
2,323
|
$
|
2,620
|
U.S. dollars in thousands
|
2014
|
2015
|
2016
|
2017
|
2018
|
|||||||||||||||
Adjusted EBITDA
(9)
|
$
|
163
|
$
|
3,058
|
$
|
16,186
|
$
|
16,405
|
$
|
10,910
|
(1) |
Average number of vessels is the number of vessels that constituted our fleet (including chartered in vessels) for the relevant period, as measured by the sum
of the number of days each vessel was a part of our fleet during the period divided by the number of calendar days in that period.
|
(2) |
Calendar days are the total days the vessels were in our possession for the relevant period. Calendar days are an indicator of the size of our fleet over the
relevant period and affect both the amount of revenues and expenses that we record during that period.
|
(3) |
Available days are the number of calendar days less the aggregate number of days that our vessels are off-hire due to scheduled repairs or scheduled guarantee
inspections in the case of newbuildings, vessel upgrades or special or intermediate surveys and the aggregate amount of time that we spend positioning our vessels. Companies in the shipping industry generally use available days to
measure the number of days in a period during which vessels should be capable of generating revenues.
|
(4) |
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 technical
circumstances. The shipping industry uses operating days to measure the aggregate number of days in a period that our vessels actually generate revenue.
|
(5) |
Fleet utilization is calculated by dividing the number of operating days during a period by the number of available days during that period. The shipping
industry uses fleet utilization to measure a company's efficiency in finding suitable employment for its vessels and minimizing the number of days that its vessels are off-hire for reasons other than scheduled repairs or scheduled
guarantee inspections in the case of newbuildings, vessel upgrades, special or intermediate surveys and vessel positioning.
|
(6) |
Time charter equivalent rate, or TCE rate, is a measure of the average daily revenue performance of a vessel on a per voyage basis. Our method of calculating
TCE rate is determined by dividing TCE revenues by operating days for the relevant time period. TCE revenues are revenues minus voyage expenses. Voyage expenses primarily consist of port, canal and fuel costs that are unique to a
particular voyage, which would otherwise be paid by the charterer under a time charter contract, as well as commissions. TCE revenues and TCE rate, which are non-U.S. GAAP measures, provide additional supplemental information in
conjunction with shipping revenues, the most directly comparable U.S. GAAP measure. We use TCE rates and TCE revenues to compare period-to-period changes in our performance and it assists investors and our management in evaluating our
financial performance. The following table below reflects the reconciliation of TCE revenues to revenues as reflected in the consolidated statements of operations and our calculation of TCE rates for the periods presented.
|
U.S. dollars in thousands, except average daily time charter equivalent and total operating days
|
2014
|
2015
|
2016
|
2017
|
2018
|
|||||||||||||||
On a consolidated basis
|
||||||||||||||||||||
Revenues*
|
$
|
3,602
|
$
|
13,075
|
$
|
28,433
|
$
|
39,363
|
$
|
41,048
|
||||||||||
Less:
|
||||||||||||||||||||
Voyage expenses
|
(113
|
))
|
(370
|
)
|
(736
|
)
|
(999
|
)
|
(1,020
|
)
|
||||||||||
Time charter equivalent revenues
|
$
|
3,489
|
$
|
12,705
|
$
|
27,697
|
$
|
38,364
|
$
|
40,028
|
||||||||||
Total operating days
|
195
|
796
|
1,799
|
2,491
|
2,663
|
|||||||||||||||
Average Daily Time Charter Equivalent (TCE)
|
$
|
17,892
|
$
|
15,961
|
$
|
15,396
|
$
|
15,403
|
$
|
15,031
|
(7) |
Daily vessel operating expenses, which include crew costs, provisions, deck and engine stores, lubricating oil, insurance, maintenance and repairs are
calculated by dividing vessel operating expenses by fleet calendar days for the relevant time period.
|
(8) |
Daily general and administrative expenses are calculated by dividing general and administrative expenses by fleet calendar days for the relevant time period.
|
(9) |
Adjusted Earnings Before Interest, Taxes, Depreciation, Amortization (Adjusted EBITDA), is not a measure prepared in accordance with U.S. GAAP. We define
Adjusted EBITDA as earnings before interest, taxes, depreciation and amortization, vessel bareboat charter hire expenses (including amortization of prepaid hire), vessel impairments, gains on sale of vessels, gains on disposal of
subsidiaries and gains/losses on derivative financial instruments. Adjusted EBITDA is a non-U.S. GAAP financial measure that is used as a supplemental financial measure by management and external users of financial statements, such as
investors, to assess our financial and operating performance. We believe that this non-GAAP financial measure assists our management and investors by increasing the comparability of our performance from period to period. This is
achieved by excluding the potentially disparate effects between periods of interest, gain/loss on financial instruments, depreciation and amortization, vessel bareboat charter hire expenses (including amortization of prepaid
hire), vessel impairments and which items are affected by various and possibly changing financing methods, capital structure and historical cost basis and which items may significantly affect results of operations between periods. This
non-U.S. 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. In evaluating Adjusted EBITDA, you should be aware that in the future we
may incur expenses that are the same as or similar to some of the adjustments in this presentation. Our definition of Adjusted EBITDA may not be the same as reported by other companies in the shipping industry or other industries.
Adjusted EBITDA does not represent and should not be considered as an alternative to operating income or cash flow from operations, as determined in accordance with U.S. GAAP.
|
U.S. dollars in thousands
|
2014
|
2015
|
2016
|
2017
|
2018
|
|||||||||||||||
Net income/(loss) and comprehensive income/(loss)
|
2,896
|
(8,507
|
)
|
1,052
|
(13,372
|
)
|
(11,129
|
)
|
||||||||||||
Add: Bareboat charter hire expenses
|
-
|
5,274
|
6,299
|
6,282
|
6,282
|
|||||||||||||||
Add: Amortization of prepaid bareboat charter hire
|
-
|
1,431
|
1,577
|
1,657
|
1,657
|
|||||||||||||||
Add: Vessel depreciation
|
757
|
668
|
3,467
|
5,744
|
6,389
|
|||||||||||||||
Add: Impairment on vessel
|
-
|
3,081
|
-
|
-
|
-
|
|||||||||||||||
Add: Interest and finance costs
|
450
|
719
|
3,093
|
15,793
|
9,662
|
|||||||||||||||
Add: Loss/(gain) on derivative financial instruments
|
(3,866
|
)
|
392
|
698
|
301
|
(1,821
|
)
|
|||||||||||||
Less: Interest income
|
(74
|
)
|
-
|
-
|
-
|
(130
|
)
|
|||||||||||||
Adjusted EBITDA
|
163
|
3,058
|
16,186
|
16,405
|
10,910
|
|
· |
supply and demand for petroleum products and chemicals carried;
|
|
· |
changes in oil production and refining capacity resulting in shifts in trade flows for oil products;
|
|
· |
the distance petroleum products and chemicals are to be moved by sea;
|
|
· |
global and regional economic and political conditions, including developments in international trade, national oil reserves policies, fluctuations in
industrial and agricultural production, armed conflicts and work stoppages;
|
|
· |
increases in the production of oil in areas linked by pipelines to consuming areas, the extension of existing, or the development of new pipeline systems in
markets we may serve, or the conversion of existing non-oil pipelines to oil pipelines in those markets;
|
|
· |
environmental and other legal and regulatory developments;
|
|
· |
currency exchange rates;
|
|
· |
weather, natural disasters and other acts of God;
|
|
· |
competition from alternative sources of energy, other shipping companies and other modes of transportation; and
|
|
· |
international sanctions, embargoes, import and export restrictions, nationalizations, piracy and wars.
|
|
· |
the number of newbuilding deliveries;
|
|
· |
current and expected newbuilding orders for vessels;
|
|
· |
the scrapping rate of older vessels;
|
|
· |
vessel freight rates, which are affected by factors that may affect the rate of newbuilding, swapping and laying up of vessels;
|
|
· |
the price of steel and vessel equipment;
|
|
· |
technological advances in the design and capacity of vessels;
|
|
· |
potential conversion of vessels for alternative use;
|
|
· |
changes in environmental and other regulations that may limit the useful lives of vessels;
|
|
· |
port or canal congestion;
|
|
· |
the number of vessels that are out of service at a given time; and
|
|
· |
changes in global petroleum and chemical production.
|
|
· |
general economic and market conditions affecting the shipping industry;
|
|
· |
prevailing level of charter rates;
|
|
· |
competition from other shipping companies;
|
|
· |
types, sizes and ages of vessels;
|
|
· |
the availability of other modes of transportation;
|
|
· |
supply and demand for vessels;
|
|
· |
shipyard capacity;
|
|
· |
cost of newbuildings;
|
|
· |
price of steel;
|
|
· |
governmental or other regulations; and
|
|
· |
technological advances.
|
|
· |
maintain a consolidated leverage ratio of not more than 75%; and
|
|
· |
maintain minimum free liquidity of $0.75 million per owned vessel and $0.5 million per bareboated chartered-in vessel.
|
|
· |
our interests could diverge from our partners' interests or we may not agree with our strategic partners on ongoing activities or on the amount, timing or
nature of further investments in the relationship;
|
|
· |
we do not control the operations of City of Athens Inc. and ECO Nine Inc. as we have joint control;
|
|
· |
due to financial constraints, our strategic partners may be unable to meet their commitments to us;
|
|
· |
due to differing long-term business goals, our partners may decide not to join us in funding capital investment by our business ventures, which may result in
higher levels of cash expenditures by us;
|
|
· |
we may experience difficulties or delays in collecting amounts due to us from our strategic partners;
|
|
· |
the terms of our arrangements may turn out to be unfavorable; and
|
|
· |
changes in tax, legal or regulatory requirements may necessitate changes in the agreements with our strategic partners.
|
|
· |
incur or guarantee indebtedness outside of our ordinary course of business;
|
|
· |
provide guarantees other than for financing of new vessels;
|
|
· |
pay any dividends or distribute any of our capital or redeem any class of our shares;
|
|
· |
charge, pledge or encumber our vessels;
|
|
· |
change the flag, class, management or ownership of our vessels;
|
|
· |
change the commercial and technical management of our vessels; and
|
|
· |
sell or change the beneficial ownership or control of our vessels.
|
|
· |
increase our vulnerability to general economic downturns and adverse competitive and industry conditions;
|
|
· |
require us to dedicate a substantial portion, if not all, of our cash flow from operations to payments on our indebtedness, thereby reducing the availability
of our cash flow to fund working capital, capital expenditures and other general corporate purposes;
|
|
· |
limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;
|
|
· |
place us at a competitive disadvantage compared to competitors that have less debt or better access to capital;
|
|
· |
limit our ability to raise additional financing on satisfactory terms or at all; and
|
|
· |
adversely impact our ability to comply with the financial and other restrictive covenants of our current or future financing arrangements, which could result
in an event of default under such agreements.
|
|
· |
generate excess cash flow for investment 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 business successfully with our existing operations;
|
|
· |
hire, train and retain qualified personnel and crew to manage and operate our growing business and fleet;
|
|
· |
enhance our customer base; and
|
|
· |
manage expansion.
|
|
· |
fluctuations in interest rates;
|
|
· |
fluctuations in the availability or the price of oil and chemicals;
|
|
· |
fluctuations in foreign currency exchange rates;
|
|
· |
announcements by us or our competitors;
|
|
· |
changes in our relationships with customers or suppliers;
|
|
· |
actual or anticipated fluctuations in our semi-annual and annual results and those of other public companies in our industry;
|
|
· |
changes in United States or foreign tax laws;
|
|
· |
actual or anticipated fluctuations in our operating results from period to period;
|
|
· |
shortfalls in our operating results from levels forecast by securities analysts;
|
|
· |
market conditions in the shipping industry and the general state of the securities markets;
|
|
· |
mergers and strategic alliances in the shipping industry;
|
|
· |
changes in government regulation;
|
|
· |
a general or industry-specific decline in the demand for, and price of, shares of our common stock resulting from capital market conditions independent of our
operating performance;
|
|
· |
the loss of any of our key management personnel;
|
|
· |
our failure to successfully implement our business plan; and
|
|
· |
issuance of shares.
|
|
· |
actual or anticipated fluctuations in our quarterly and annual results and those of other public companies in our industry;
|
|
· |
mergers and strategic alliances in the shipping industry;
|
|
· |
market conditions in the shipping industry and the general state of the securities markets;
|
|
· |
changes in government regulation;
|
|
· |
shortfalls in our operating results from levels forecast by securities analysts; and
|
|
· |
announcements concerning us or our competitors.
|
|
· |
our existing shareholders' proportionate ownership interest in us will decrease;
|
|
· |
the amount of cash available for dividends payable on the shares of our common stock may decrease;
|
|
· |
the relative voting strength of each previously outstanding common share may be diminished; and
|
|
· |
the market price of the shares of our common stock may decline.
|
|
· |
authorizing our Board of Directors to issue "blank check" preferred stock without shareholder approval;
|
|
· |
providing for a classified Board of Directors with staggered, three-year terms;
|
|
· |
prohibiting cumulative voting in the election of directors;
|
|
· |
authorizing the removal of directors only for cause and only upon the affirmative vote of the holders of at least 80% of the outstanding shares of our capital
stock entitled to vote for the directors;
|
|
· |
prohibiting shareholder action by written consent unless the written consent is signed by all shareholders entitled to vote on the action;
|
|
· |
limiting the persons who may call special meetings of shareholders; and
|
|
· |
establishing advance notice requirements for nominations for election to our Board of Directors or for proposing matters that can be acted on by shareholders
at shareholder meetings.
|
|
· |
continue to operate our vessels and service our customers;
|
|
· |
renew existing charters upon their expiration;
|
|
· |
obtain new charters;
|
|
· |
obtain financing on commercially acceptable terms;
|
|
· |
obtain insurance on commercially acceptable terms;
|
|
· |
maintain satisfactory relationships with our customers and suppliers; and
|
|
· |
successfully execute our growth strategy.
|
|
· |
100% of the issued and outstanding shares of PCH Dreaming Inc., a Marshall Islands company that has entered into a new building contract for a high
specification 50,000 dwt Medium Range ("MR") product/chemical tanker under construction at Hyundai Mipo Dockyard Co., Ltd. in South Korea and scheduled for delivery during March 2019. We acquired the shares from an entity affiliated
with our Chief Executive Officer for an aggregate purchase price of $3.95 million.
|
|
· |
100% of the issued and outstanding shares of South California Inc., a Marshall Islands company that has entered into a new building contract for a high
specification, scrubber-equipped, 157,000 dwt Suezmax Crude Oil Carrier under construction at Hyundai Samho Heavy Industries Co. Ltd. in South Korea and scheduled for delivery during April 2019. We acquired the shares from an entity
affiliated with our Chief Executive Officer for an aggregate purchase price of $8.95 million.
|
|
· |
100% of the issued outstanding shares of Malibu Warrior Inc., a Marshall Islands company that has entered into a new building contract for a high
specification, scrubber-equipped, 157,000 dwt Suezmax Crude Oil Carrier under construction at Hyundai Samho Heavy Industries Co. Ltd. in South Korea and scheduled for delivery during May 2019. We acquired the shares from an entity
affiliated with our Chief Executive Officer for an aggregate purchase price of $8.95 million.
|
|
· |
10% of the issued and outstanding shares of Eco Seven Inc., a Marshall Islands company that owns M/T Stena Elegance, a high specification 50,000 dwt MR
product/chemical tanker delivered in February 2017 at Hyundai Vinashin. We acquired the shares from an entity affiliated with our Chief Executive Officer for an aggregate purchase price of $1.6 million. As a result of the transaction
we own 100% of the issued and outstanding shares of Eco Seven Inc.
|
Name
|
Deadweight
|
Delivery date
|
Shipyard
|
M/T Eco Bel Air (Hull No 874)
|
159,000
|
April 2019
|
Hyundai Samho S. Korea
|
M/T Eco Beverly Hills (Hull No 875)
|
159,000
|
May 2019
|
Hyundai Samho S. Korea
|
Name
|
Deadweight
|
Vessel Type
|
Charterer
|
End of firm period
|
Charterer's Optional Periods
|
Gross Rate fixed period/ options
|
|||
M/T Stenaweco Energy
|
50,000
|
Medium Range (“MR”) Tanker
|
Stena Weco A/S
|
February 2021
|
1+1 years
|
$15,616 / $17,350 / $18,100
|
|||
M/T Stenaweco Evolution
|
50,000
|
Medium Range (“MR”) Tanker
|
Stena Weco A/S
|
October 2021
|
1+1 years
|
$15,516 / $17,200 / $18,000
|
Name
|
Deadweight
|
Vessel Type
|
Charterer
|
End of firm period
|
Charterer's Optional Periods
|
Gross Rate fixed period/ options
|
M/T Eco Fleet
|
39,000
|
Medium Range (“MR”) Tanker
|
Clearlake Shipping Pte Ltd
|
April 2022
|
1+1 years
|
$12,600 1
st
year, $13,100 2
nd
year and $13,600 3
rd
year / $14,350 / $15,600
|
M/T Eco Revolution
|
39,000
|
Medium Range (“MR”) Tanker
|
BP Shipping Limited
|
January 2021
|
1+1 years
|
$13,500 / $16,000 / $16,750
|
M/T Stenaweco Excellence
|
50,000
|
Medium Range (“MR”) Tanker
|
Stena Weco A/S
|
November 2020
|
1+1 years
|
$15,000 until June 2019 and $16,200 after / $17,200 / $18,000
|
M/T Nord Valiant
|
50,000
|
Medium Range (“MR”) Tanker
|
DS Norden A/S
|
August 2021
|
1+1 years
|
$16,800 / $17,600 / $18,400
|
M/T Stenaweco Elegance
|
50,000
|
Medium Range (“MR”) Tanker
|
Stena Weco A/S
|
March 2021
|
1+1 years
|
$16,500 / $17,500 / $18,500
|
M/T Eco Palm Desert
|
50,000
|
Medium Range (“MR”) Tanker
|
Central Tankers Chartering Inc
|
September 2021
|
1+1 years
|
$14,750 / $15,250 / $15,750
|
M/T Eco California
|
50,000
|
Medium Range (“MR”) Tanker
|
Shell Tankers Singapore Private Limited
|
January 2021
|
1 year
|
$13,750 plus 50% profit share/ $13,950 plus 50% profit share
|
M/T Eco Marina Del Ray
|
50,000
|
Medium Range (“MR”) Tanker
|
Cargill
|
March 2020
|
1+1 years
|
$16,000 / $17,000 / $18,000
|
Name
|
Deadweight
|
Vessel Type
|
Charterer
|
End of firm period
|
Charterer's Optional Periods
|
Gross Rate fixed period/ options
|
|||
M/T Eco Holmby Hills
|
50,000
|
Medium Range (“MR”) Tanker
|
Clearlake Shipping Pte Ltd
|
March 2021
|
1+1 years
|
$14,100 1
st
year, $14,600 2
nd
year and $15,025 3
rd
year / $15,400 / $16,400
|
|||
M/T Eco Palm Springs
|
50,000
|
Medium Range (“MR”) Tanker
|
Clearlake Shipping Pte Ltd
|
May 2021
|
1+1 years
|
$14,250 1
st
year, $14,750 2
nd
year and $15,175 3
rd
year / $15,550 / $16,550
|
Name
|
Deadweight
|
Vessel Type
|
Charterer
|
End of firm period
|
Charterer's Optional Periods
|
Gross Rate fixed period/ options
|
Delivery date
|
Shipyard
|
|||
M/T Eco Bel Air
|
159,000
|
Suezmax Tanker
|
BP Shipping Limited
|
April 2022
|
1+1 years
|
$24,500 / $27,500 / $29,000
|
April 2019
|
Hyundai Samho S. Korea
|
|||
M/T Eco Beverly Hills
|
159,000
|
Suezmax Tanker
|
BP Shipping Limited
|
May 2022
|
1+1 years
|
$24,500 / $27,500 / $29,000
|
May 2019
|
Hyundai Samho S. Korea
|
A. |
Operating Results
|
|
· |
Calendar days
. We define calendar days as the total
number of days the vessels were in our possession for the relevant period. Calendar days are an indicator of the size of our fleet during the relevant period and affect both the amount of revenues and expenses that we record during that
period.
|
|
· |
Available days
. We define available days as the number
of calendar days less the aggregate number of days that our vessels are off-hire due to scheduled repairs, or scheduled guarantee inspections in the case of newbuildings, vessel upgrades or special or intermediate surveys and the
aggregate amount of time that we spend positioning our vessels. Companies in the shipping industry generally use available days to measure the number of days in a period during which vessels should be capable of generating revenues.
|
|
· |
Operating days
. We define operating days as the number
of available days in a period less the aggregate number of days that our vessels are off-hire due to unforeseen technical circumstances. The shipping industry uses operating days to measure the aggregate number of days in a period that
our vessels actually generate revenues.
|
|
· |
Fleet utilization
. We calculate fleet utilization by
dividing the number of operating days during a period by the number of available days during that period. The shipping industry uses fleet utilization to measure a company's efficiency in finding suitable employment for its vessels and
minimizing the number of days that its vessels are off-hire for reasons other than scheduled repairs or scheduled guarantee inspections in the case of newbuildings, vessel upgrades, special or intermediate surveys and vessel
positioning.
|
|
· |
Bareboat Charter Rates.
Under a bareboat charter
party, all operating costs, voyage costs and cargo-related costs are covered by the charterer, who takes both the operational and the shipping market risk.
|
|
· |
TCE Revenues / TCE Rates
. We define TCE revenues as
revenues minus voyage expenses. Voyage expenses primarily consist of port, canal and fuel costs that are unique to a particular voyage, which would otherwise be paid by a charterer under a time charter, as well as commissions. We
believe that presenting revenues net of voyage expenses neutralizes the variability created by unique costs associated with particular voyages or the deployment of vessels on the spot market and facilitates comparisons between periods
on a consistent basis. We calculate daily TCE rates by dividing TCE revenues by operating days for the relevant time period. TCE revenues include demurrage revenue, which represents fees charged to charterers associated with our spot
market voyages when the charterer exceeds the agreed upon time required to load or discharge a cargo.
|
|
· |
obtain the charterer's consent to us as the new owner;
|
|
· |
obtain the charterer's consent to a new technical manager;
|
|
· |
in some cases, obtain the charterer's consent to a new flag for the vessel;
|
|
· |
arrange for a new crew for the vessel, and where the vessel is on charter, in some cases, the crew must be approved by the charterer;
|
|
· |
replace all hired equipment on board, such as gas cylinders and communication equipment;
|
|
· |
negotiate and enter into new insurance contracts for the vessel through our own insurance brokers; and
|
|
· |
register the vessel under a flag state and perform the related inspections in order to obtain new trading certificates from the flag state.
|
|
· |
employment and operation of tankers; and
|
|
· |
management of the financial, general and administrative elements involved in the conduct of our business and ownership of tankers.
|
|
· |
vessel maintenance and repair;
|
|
· |
crew selection and training;
|
|
· |
vessel spares and stores supply;
|
|
· |
contingency response planning;
|
|
· |
onboard safety procedures auditing;
|
|
· |
accounting;
|
|
· |
vessel insurance arrangement;
|
|
· |
vessel chartering;
|
|
· |
vessel security training and security response plans (ISPS);
|
|
· |
obtain ISM certification and audit for each vessel within the six months of taking over a vessel;
|
|
· |
vessel hire management;
|
|
· |
vessel surveying; and
|
|
· |
vessel performance monitoring.
|
|
· |
management of our financial resources, including banking relationships,
i.e.
, administration of bank loans and bank accounts;
|
|
· |
management of our accounting system and records and financial reporting;
|
|
· |
administration of the legal and regulatory requirements affecting our business and assets; and
|
|
· |
management of the relationships with our service providers and customers.
|
|
· |
charter rates and periods of charter hire for our tankers;
|
|
· |
utilization of our tankers (earnings efficiency);
|
|
· |
levels of our tanker's operating expenses and dry-docking costs;
|
|
· |
depreciation and amortization expenses;
|
|
· |
financing costs; and
|
|
· |
fluctuations in foreign exchange rates.
|
Year Ended December 31,
|
Change
|
|||||||||||||||||||||||||||
YE17 v YE16
|
YE18 v YE17
|
|||||||||||||||||||||||||||
2016
|
2017
|
2018
|
$
|
|
%
|
$
|
|
%
|
||||||||||||||||||||
($ in thousands)
|
||||||||||||||||||||||||||||
Time charter revenues
|
28,433
|
39,363
|
39,442
|
10,930
|
38.4
|
%
|
79
|
0.2
|
%
|
|||||||||||||||||||
Time charter revenue from related parties
|
-
|
-
|
1,606
|
-
|
-
|
%
|
1,606
|
100
|
%
|
|||||||||||||||||||
Total time charter revenues
|
28,433
|
39,363
|
41,048
|
10,930
|
38.4
|
% |
1,685
|
4.3
|
%
|
|||||||||||||||||||
Voyage expenses
|
736
|
999
|
1,020
|
263
|
35.7
|
%
|
21
|
2.1
|
%
|
|||||||||||||||||||
Bareboat charter hire expenses
|
6,299
|
6,282
|
6,282
|
(17
|
)
|
-0.3
|
%
|
-
|
0.0
|
%
|
||||||||||||||||||
Amortization of prepaid bareboat charter hire
|
1,577
|
1,657
|
1,657
|
80
|
5.1
|
%
|
-
|
0.0
|
%
|
|||||||||||||||||||
Vessel operating expenses
|
9,913
|
13,444
|
14,826
|
3,531
|
35.6
|
%
|
1,382
|
10.3
|
%
|
|||||||||||||||||||
Vessel depreciation
|
3,467
|
5,744
|
6,390
|
2,277
|
65.7
|
%
|
646
|
11.2
|
%
|
|||||||||||||||||||
Management fees-related parties
|
1,824
|
4,730
|
7,765
|
2,906
|
159.3
|
%
|
3,035
|
64.2
|
%
|
|||||||||||||||||||
Other operating (income) / loss
|
(3,137
|
)
|
(914
|
)
|
-
|
2,223
|
-70.9
|
%
|
914
|
-100
|
%
|
|||||||||||||||||
General and administrative expenses
|
2,906
|
5,805
|
6,997
|
2,899
|
99.8
|
%
|
1,192
|
20.5
|
%
|
|||||||||||||||||||
Expenses
|
23,585
|
37,747
|
44,937
|
14,162
|
60.0
|
%
|
7,190
|
19.0
|
%
|
|||||||||||||||||||
Operating income / (loss)
|
4,848
|
1,616
|
(3,889
|
)
|
(3,232
|
)
|
-66.7
|
%
|
(5,505
|
)
|
-340.7
|
%
|
||||||||||||||||
Interest and finance costs
|
(3,093
|
)
|
(15,793
|
)
|
(9,662
|
)
|
(12,700
|
)
|
410.6
|
%
|
6,131
|
-38.8
|
%
|
|||||||||||||||
(Loss)/Gain on derivative financial instruments
|
(698
|
)
|
(301
|
)
|
1,821
|
397
|
-56.9
|
%
|
2,122
|
-705
|
%
|
|||||||||||||||||
Interest income
|
-
|
13
|
130
|
13
|
-
|
117
|
900
|
%
|
||||||||||||||||||||
Other, net
|
(5
|
)
|
1,120
|
180
|
1,125
|
-22,500.0
|
%
|
(940
|
)
|
-83.9
|
%
|
|||||||||||||||||
Total other (expenses) / income, net
|
(3,796
|
)
|
(14,961
|
)
|
(7,531
|
)
|
(11,165
|
)
|
294.1
|
%
|
7,430
|
-49.7
|
%
|
|||||||||||||||
Net income/(loss)
|
1,052
|
(13,345
|
)
|
(11,420
|
)
|
(14,397
|
)
|
-1368.5
|
%
|
1,925
|
-14.4
|
%
|
|
1. |
Time Charter Revenues
|
|
2. |
Time charter revenues from related parties
|
|
3. |
Vessel operating expenses
|
|
4. |
Vessel depreciation
|
|
5. |
Management fees—related parties
|
|
6. |
Other operating income
|
|
7. |
General and administrative expenses
|
|
8. |
Interest and Finance Costs
|
|
a) |
A decrease of $5.8 million in amortization of debt discount, mainly due to the absence in 2018 of the $7.5 million debt discount amortization relating to the
convertibility features of the Series C convertible preferred shares that we incurred in 2017. This was offset by an increase of $1.7 million in the debt discount amortization relating to the convertibility features of the Family
Trading facility (please see "Item 18. Financial Statements—Note 9—Debt.").
|
|
b) |
A decrease of $0.4 million in amortization of finance fees that is mainly due to the decrease by $0.9 million of the amortization of finance fees of the
Family Trading facility, offset by increases of $0.5 million relating to the amortization of finance fees of the first and Second AT Bank and Alpha Bank predelivery facilities (please see "Item 18. Financial Statements—Note 9—Debt.").
|
|
c) |
A decrease of $0.2 million in commitment fees of the Family Trading facility, since in 2018 we drew down most of the remaining balance of the facility, hence
the undrawn part on which the commitment fee was calculated upon in 2018 was less than the undrawn part of 2017.
|
|
d) |
These decreases were offset by an increase of $0.3 million in loan interest expense, mainly relating to the increase in the Three-Month Libor rate in 2018
that resulted in an aggregate increase of about $0.4 million in our ABN Amro Bank, NORD/LB Bank and Alpha Bank senior loan facilities, an increase of $0.3 million in the Alpha Bank Facility due to the fact that we incurred interest
expense in 2017 only for 10 months as opposed to 2018, were we incurred for twelve months and an increase of $0.5 million in the AT Bank senior facility present in 2018, but absent in 2017. These increases were offset by a decrease in
capitalized interest of $0.9 million.
|
|
a) |
An increase of $8.3 million in amortization of debt discount, $7.5 million relating to the convertibility features of the Series C convertible preferred
shares and $0.8 million relating to the convertibility features of the Family Trading facility, both absent in the same period of 2016 (please see "Item 18. Financial Statements—Note 9—Debt.").
|
|
b) |
An increase of $2.7 million in loan interest expense, since in 2017 we had senior loan facilities with ABN Amro Bank, NORD/LB Bank, Alpha Bank and At Bank for
the financing of the vessels M/T Eco Revolution, M/T Eco Fleet, M/T Nord Valiant, M/T Stenaweco Excellence, M/T Stenaweco Elegance and M/T Eco Palm desert as well as the Family Trading Facility, while in the same period of 2016 we only
incurred interest expense for M/T Eco Fleet for twelve months, M/T Eco Revolution for eleven months, M/T Nord Valiant for four months(ABN Facility), and M/T Stenaweco Excellence (NORD/LB facility) for approximately seven months.
|
|
c) |
An increase of $1.5 million in amortization of finance fees mainly due to the fact that in 2017 we accelerated the amortization of arrangement fees of four of
our short term notes due to their prepayment ($0.6 million), we incurred additional amortization expenses relating to the Amended Family Trading Facility ($0.3 million) and the Series C convertible preferred shares we treated as debt
($0.3 million) and incurred increased amortization expenses due to the fact that we had more senior debt facilities in place compared to the same period in 2016 ($0.3 million).
|
|
d) |
An increase of $0.2 million in other financial costs.
|
|
9. |
(Loss)/Gain on derivative financial instruments
|
|
· |
reports by industry analysts and data providers that focus on our industry and related dynamics affecting vessel values;
|
|
· |
news and industry reports of similar vessel sales;
|
|
· |
news and industry reports of sales of vessels that are not similar to our vessels where we have made certain adjustments in an attempt to derive information
that can be used as part of our estimates;
|
|
· |
approximate market values for our vessels or similar vessels that we have received from shipbrokers, whether solicited or unsolicited, or that shipbrokers
have generally disseminated;
|
|
· |
offers that we may have received from potential purchasers of our vessels; and
|
|
· |
vessel sale prices and values of which we are aware through both formal and informal communications with shipowners, shipbrokers, industry analysts and
various other shipping industry participants and observers.
|
B. |
Liquidity and Capital Resources
|
|
a) |
ABN Facility
|
|
· |
First priority mortgage over M/T Eco Fleet, M/T Eco Revolution and M/T Nord Valiant;
|
|
· |
Assignment of insurance and earnings of the mortgaged vessels;
|
|
· |
Specific assignment of any time charters with duration of more than 12 months;
|
|
· |
Corporate guarantee of TOP Ships Inc.;
|
|
· |
Pledge of the shares of the shipowning subsidiaries; and
|
|
· |
Pledge over the earnings account of the vessels.
|
|
b) |
NORD/LB Facility
|
|
· |
First priority mortgage over M/T Stenaweco Excellence;
|
|
· |
Assignment of insurance and earnings of the mortgaged vessel;
|
|
· |
Specific assignment of any time charters with duration of more than 12 months;
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Pledge of the shares of the shipowning subsidiary;
|
|
· |
Pledge over the earnings account of the vessel.
|
|
c) |
Alpha Bank Facility
|
|
· |
First priority mortgage over M/T Stenaweco Elegance;
|
|
· |
Assignment of insurance and earnings of the mortgaged vessel;
|
|
· |
Specific assignment of any time charters with duration of more than 12 months;
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Pledge of the shares of the shipowning subsidiary;
|
|
· |
Pledge over the earnings account of the vessel.
|
|
d) |
AT Bank Senior Facility
|
|
· |
First priority mortgage over M/T Eco Palm Desert;
|
|
· |
Assignment of insurance and earnings of the mortgaged vessel;
|
|
· |
Specific assignment of any time charters with duration of more than 12 months;
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Pledge of the shares of the shipowning subsidiary;
|
|
· |
Pledge over the earnings account of the vessel.
|
|
e) |
AT Bank Predelivery Facility
|
|
· |
Assignment to the bank of the newbuilding contract and of the respective refund guarantee of M/T Eco Palm Desert;
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Pledge of the shares of the subsidiary owning the newbuilding contract;
|
|
f) |
AT Bank Second Predelivery Facility
|
|
· |
Assignment to the bank of the newbuilding contract and of the respective refund guarantee of M/T Eco California;
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Pledge of the shares of the subsidiary owning the newbuilding contract;
|
|
g) |
Alpha Bank Predelivery Facility
|
|
· |
Assignment to the bank of the newbuilding contract and of the respective refund guarantee of M/T Eco Marina Del Ray;
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Pledge of the shares of the subsidiary owning the newbuilding contract;
|
|
h) |
Amended and Restated Family Trading Credit Facility
|
|
i) |
Unsecured Promissory Notes
|
Year ending December 31,
|
$ millions
|
|||
2019
|
6.3
|
|||
2020
|
6.3
|
|||
2021
|
6.3
|
|||
2022
|
1.0
|
|||
Total
|
19.9
|
C. |
Research and Development, Patents and Licenses, Etc.
|
D. |
Trend Information
|
E. |
Off-Balance Sheet Arrangements
|
F. |
Tabular Disclosure of Contractual Obligations
|
|
Payments due by period
|
|||||||||||||||||||
|
1-3
|
3-5
|
More than
|
|||||||||||||||||
Contractual Obligations
:
|
Total
|
Less than 1 year
|
years
|
years
|
5 years
|
|||||||||||||||
|
||||||||||||||||||||
(i) Long term debt
A
|
$
|
138.9
|
$
|
10.7
|
$
|
30.7
|
$
|
58.7
|
$
|
38.8
|
||||||||||
(ii) Interest
B
|
$
|
49.1
|
$
|
10.3
|
$
|
18.4
|
$
|
12.2
|
$
|
8.2
|
||||||||||
(i) Short term debt
C
|
$
|
13.5
|
$
|
13.5
|
$
|
0.0
|
$
|
0.0
|
$
|
0.0
|
||||||||||
(ii) Interest
D
|
$
|
1.0
|
$
|
1.0
|
$
|
0.0
|
$
|
0.0
|
$
|
0.0
|
||||||||||
Operating leases
E
|
$
|
19.9
|
$
|
6.3
|
$
|
12.6
|
$
|
1.0
|
$
|
0.0
|
||||||||||
Vessel Management Fees to CSM
F
|
$
|
0.9
|
$
|
0.9
|
$
|
0.0
|
$
|
0.0
|
$
|
0.0
|
||||||||||
Vessel acquisitions
G
|
$
|
147.6
|
$
|
147.6
|
$
|
0.0
|
$
|
0.0
|
$
|
0.0
|
||||||||||
Total
|
$
|
370.6
|
$
|
190.0
|
$
|
61.7
|
$
|
71.9
|
$
|
47.0
|
A. |
Relates to the principal repayments of our Long term debt (see "Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Debt
Facilities").
|
B. |
Relates to estimated interest payments of our Long term debt, based on our average outstanding debt. In the cases there are no Interest Rate Swap agreements
in place, we have assumed a LIBOR of 3.5% going forward (see "Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Debt Facilities" and "Item 11. Quantitative and qualitative disclosures about market
risk—Interest Rate Risk").
|
C. |
Relates to the repayment of our Short term debt. (see "Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Debt
Facilities").
|
D. |
Relates to estimated interest payments of our Short term debt. (see "Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital
Resources—Debt Facilities").
|
E. |
Relates to the bareboat hire payable for M/T Stenaweco Energy and M/T Stenaweco Evolution.
|
F. |
Relates to our obligation for monthly management fees under our letter agreement with CSM for all the vessels in our fleet. These fees also cover the
provision of services rendered in relation to the maintenance of proper books and records, services in relation to financial reporting requirements under SEC and NASDAQ rules as well as newbuilding supervision services. Please see "Item
7. Major Shareholders and Related Party Transactions—B. Related Party Transactions—Central Shipping Monaco Letter Agreement, Management Agreements, and Other Agreements."
|
G. |
Relates to the remaining installments for the acquisition of our four newbuilding vessels in 2019. Please see "Item 7. Major Shareholders and Related Party
Transactions—B. Related Party Transactions—Newbuilding Acquisitions".
|
G. |
Safe Harbor
|
Name
|
Age
|
Position
|
|||
Evangelos J. Pistiolis
|
46
|
Director, President, Chief Executive Officer
|
|||
Alexandros Tsirikos
|
45
|
Director, Chief Financial Officer
|
|||
Konstantinos Patis
|
45
|
Chief Technical Officer
|
|||
Vangelis G. Ikonomou
|
54
|
Chief Operating Officer
|
|||
Konstantinos Karelas
|
46
|
Independent Non-Executive Director
|
|||
Stavros Emmanuel
|
76
|
Independent Non-Executive Director
|
|||
Paolo Javarone
|
45
|
Independent Non-Executive Director
|
Name and Address of Beneficial Owner
|
|
Number of Shares Owned
|
Percent of Class
|
||||||
Lax Trust
(1)
|
46,427,516
|
65.0
|
%
|
(1) |
The above information is derived, in part, from the Schedule 13D/A filed with the SEC on March 12, 2019. The Lax Trust is an irrevocable trust established for
the benefit of certain family members of Evangelos J. Pistiolis, our President, Chief Executive Officer and Director. The business address of the Lax Trust is Level 3, 18 Stanley Street, Auckland 1010, New Zealand. The above percentage
ownership is based on 71,391,967 common shares outstanding, which is calculated for this Schedule 13D/A purposes by taking the sum of (i) 24,964,467 common shares outstanding, (ii) 5,187,500 common shares issuable upon the exercise of
all of the 1,250,000 2014 Warrants currently held by Race Navigation and (iii) 41,240,000 common shares issuable upon the conversion of $24.7 million of outstanding debt held by Family Trading Inc. under the Amended and Restated Family
Trading Credit Facility, all figures being as of March 12, 2019. The Lax Trust may also be deemed to hold all of the 100,000 outstanding shares of our Series D Preferred Stock. Each Series D Preferred Share carries 1,000 votes. By its
ownership of 100% of our Series D Preferred Shares, Lax Trust has control over our actions.
|
The New Letter Agreement can only be terminated on eighteen months’ notice, subject to a termination fee equal to twelve months of fees payable under the New Letter Agreement.
Pursuant to the New Letter Agreement, management fees remain the same except for the fact that the technical and the commercial management fees have been consolidated into one daily management fee and this has been reduced from $923 to $550 per day. Furthermore the fee per day for superintendent visits has been reduced from $541 to $500.
The New Letter Agreement and the management agreements have an initial term of five years, after which they will continue to be in effect until terminated by either party subject to an eighteen month advance notice of termination.
|
· |
prior to the date of the transaction that resulted in the shareholder becoming an interested shareholder, the Board approved either the business combination
or the transaction that resulted in the shareholder becoming an interested shareholder;
|
|
· |
upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction commenced;
|
|
· |
at or subsequent to the date of the transaction that resulted in the shareholder becoming an interested shareholder, the business combination is approved by
the Board and authorized at an annual or special meeting of shareholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested shareholder; and
|
|
· |
the shareholder became an interested shareholder prior to the consummation of the initial public offering.
|
|
· |
not be redeemable;
|
|
· |
entitle holders to quarterly dividend payments in an amount per share equal to the aggregate per share amount of all cash dividends, and the aggregate per
share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in our common shares or a subdivision of the our outstanding common shares (by reclassification or otherwise), declared on our
common shares since the immediately preceding quarterly dividend payment date; and
|
|
· |
entitle holders to one vote on all matters submitted to a vote of our shareholders.
|
|
· |
Flip In.
If an Acquiring Person obtains beneficial
ownership of 15% or more of our common shares, then each Right will entitle the holder thereof to purchase, for the Exercise Price, a number of our common shares (or, in certain circumstances, cash, property or other of our securities)
having a then-current market value of twice the Exercise Price. However, the Rights are not exercisable following the occurrence of the foregoing event until such time as the Rights are no longer redeemable by us, as further described
below.
|
|
· |
Flip Over
. If, after an Acquiring Person obtains 15% or more of our common shares, (i) we merge into another entity; (ii) an acquiring entity
merges into us; or (iii) we sell or transfer 50% or more of its assets, cash flow or earning power, then each Right (except for Rights that have previously been voided as set forth above) will entitle the holder thereof to purchase,
for the Exercise Price, a number of our common shares of the person engaging in the transaction having a then-current market value of twice the Exercise Price.
|
|
· |
Notional Shares
. Shares held by affiliates and associates of an Acquiring Person, including certain entities in which the Acquiring Person beneficially
owns a majority of the equity securities, and Notional Common Shares (as defined in the Rights Agreement) held by counterparties to a Derivatives Contract (as defined in the Rights Agreement) with an Acquiring Person, will be deemed
to be beneficially owned by the Acquiring Person.
|
|
(1) |
we are organized in a foreign country, or our country of organization, that grants an "equivalent exemption" to corporations organized in the United States;
and
|
|
(2) |
either
|
|
A. |
more than 50% of the value of our stock is owned, directly or indirectly, by individuals 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 (each such individual a "qualified shareholder" and such individuals collectively, "qualified shareholders"), which we refer to as the
"50% Ownership Test," or
|
|
B. |
our stock is "primarily and regularly traded on an established securities market" in our country of organization, in another country that grants an
"equivalent exemption" to U.S. 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 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.
|
|
· |
is a U.S. citizen or resident, U.S. corporation or other U.S. entity taxable as a corporation, an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or a trust if a court within the United States is able to exercise primary jurisdiction over the administration of the trust and one or more U.S. persons have the authority to control all substantial
decisions of the trust;
|
|
· |
owns the common stock as a capital asset, generally, for investment purposes; and
|
|
· |
owns less than 10% of our common stock for U.S. federal income tax purposes.
|
|
· |
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 Holder's aggregate holding period for the common stock;
|
|
· |
the amount allocated to the current taxable year and any taxable year before we became a PFIC 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 tax deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
|
· |
the gain is effectively connected with a trade or business conducted by the Non-U.S. Holder in the United States. If the Non-U.S. Holder is entitled to the
benefits of a U.S. income tax treaty with respect to that gain, that gain is taxable only if it is attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States; or
|
|
· |
the Non-U.S. Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are
met.
|
|
· |
fail to provide an accurate taxpayer identification number;
|
|
· |
are notified by the IRS that you have failed to report all interest or dividends required to be shown on your U.S. federal income tax returns; or
|
|
· |
in certain circumstances, fail to comply with applicable certification requirements.
|
SWAP Number (Nr)
|
Counterparty
|
Notional amount
as of December 31, 2018
|
Start Date
|
End Date
|
Fixed Rate Payable
|
Fair Value – Liability as of December 31, 2018
|
|||||||||||
1
|
ABN Amro
|
15,663
|
April 13, 2018
|
July 13, 2021
|
1.4425
|
%
|
459
|
||||||||||
2
|
ABN Amro
|
16,575
|
December 21, 2016
|
January 13, 2022
|
2.0800
|
%
|
231
|
||||||||||
3
|
ABN Amro
|
15,050
|
December 21, 2016
|
August 10, 2022
|
2.1250
|
%
|
205
|
||||||||||
4
|
NORD/LB Bank
|
18,071
|
May 17, 2017
|
May 17, 2023
|
2.1900
|
%
|
259
|
||||||||||
5
|
Alpha Bank
|
20,700
|
March 29, 2018
|
February 25, 2025
|
2.9700
|
%
|
(359)
|
||||||||||
Total
|
86,059
|
795
|
ITEM 14. |
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
|
|
· |
Pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets;
|
|
· |
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted
accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of Company's management and directors; and
|
|
· |
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material
effect on the financial statements.
|
U.S. dollars in thousands,
|
Year Ended
|
|||||||
2017
|
2018
|
|||||||
Audit Fees
|
274.1
|
218.1
|
|
· |
Majority Independent Board.
Nasdaq requires, among
other things, that a listed company has a Board of Directors comprised of a majority of independent directors. As permitted under Marshall Islands law, our Board of Directors is comprised of four independent directors, one
non-independent, non-executive director and three executive directors.
|
|
· |
Audit Committee
. Nasdaq requires, among other things,
that a listed company has an audit committee with a minimum of three independent members, at least one of whom meets certain standards of financial sophistication. As permitted under Marshall Islands law, our audit committee consists
of four independent directors but we do not designate any one audit commit member as meeting the standards of financial sophistication.
|
|
· |
As a foreign private issuer, we are not required to hold regularly scheduled board meetings at which only independent directors are present.
|
|
· |
In lieu of obtaining shareholder approval prior to the issuance of designated securities, we will comply with provisions of the BCA, which allows our Board of
Directors to approve share issuances.
|
Number
|
Description of Exhibits
|
1.1
|
|
1.2
|
|
1.3
|
|
1.4
|
1.5
|
|
1.6
|
|
1.7
|
|
1.8
|
|
1.9
|
|
1.10
|
|
1.11
|
|
2.1
|
|
2.2
|
|
2.3
|
|
2.4
|
|
2.5
|
|
2.6
|
|
2.7
|
|
2.8
|
|
2.9
|
|
4.1
|
|
4.2
|
|
4.3
|
|
4.4
|
|
4.5
|
4.6
|
|
4.7
|
|
4.8
|
|
4.9
|
|
4.10
|
|
4.11
|
|
4.12
|
|
4.13
|
|
4.14
|
|
4.15
|
|
4.16
|
|
4.17
|
|
4.18
|
|
4.19
|
|
4.20
|
|
4.21
|
|
4.22
|
|
4.23
|
|
4.24
|
|
4.25
|
|
4.26
|
4.27
|
|
4.28
|
|
4.29
|
|
4.30
|
|
4.31
|
|
4.32
|
|
4.33
|
|
4.34
|
|
4.35
|
|
4.36
|
|
4.37
|
|
4.38
|
|
4.39
|
|
4.40
|
|
4.41
|
|
4.42
|
|
4.43
|
|
4.44
|
|
4.45
|
4.46
|
|
4.47
|
|
4.48
|
|
4.49
|
|
4.50
|
|
4.51
|
|
4.52
|
|
4.53
|
|
4.54
|
|
4.55
|
|
4.56
|
|
4.57
|
|
4.58
|
|
4.59
|
|
4.60
|
|
4.61
|
|
4.62
|
|
4.63
|
|
4.64
|
|
4.65
|
|
4.66
|
4.67
|
|
4.68
|
|
4.69
|
|
4.70
|
|
4.71
|
|
4.72
|
|
4.73
|
|
4.74
|
|
4.75
|
|
4.76
|
|
4.77
|
Confirmation of Interest Rate Swap Transaction dated as
of March 29, 2017 between Norddeutsche Landesbank Gironzentrale and Monte Carlo Seven Shipping Limited
|
4.78
|
|
4.79
|
|
4.80
|
|
4.81
|
|
4.82
|
|
4.83
|
|
4.84
|
|
4.85
|
|
4.86
|
$10,140,000 Loan Agreement between Alpha Bank A.E., as
lender and PCH Dreaming Inc. as borrower, dated as of July 11, 2018
|
4.87 |
Memorandum of Agreement in respect of M/T Eco Bel Air,
dated as of December 3, 2018
|
4.88
|
4.89
|
|
4.90
|
|
4.91
|
|
4.92
|
|
4.93
|
|
4.94
|
|
4.95
|
|
4.96
|
|
4.97
|
|
4.98
|
|
4.99
|
|
4.100
|
|
4.101
|
|
4.102
|
|
4.103
|
|
4.104
|
|
4.105
|
|
4.106
|
|
4.107
|
|
4.108
|
|
4.109
|
|
4.110
|
4.111
|
|
4.112
|
|
4.113
|
|
4.114
|
|
4.115
|
|
4.116
|
|
4.117
|
|
4.118
|
|
4.119
|
|
8.1
|
List of subsidiaries of the Company
|
12.1
|
Rule 13a-14(a)/15d-14(a) Certification of the Company's
Principal Executive Officer
|
12.2
|
Rule 13a-14(a)/15d-14(a) Certification of the Company's Principal Financial Officer
|
13.1
|
|
13.2
|
|
15.1
|
|
101
|
The following materials from the Company's Annual Report on Form 20-F for the fiscal year ended December 31, 2018, formatted in
eXtensible Business Reporting Language (XBRL): (i) Consolidated Balance Sheets as of December 31, 2017 and 2018; (ii) Consolidated Statements of Comprehensive Income/(Loss) for the years ended December 31, 2016, 2017 and 2018; (iii)
Consolidated Statements of Stockholders' Equity for the years ended December 31, 2016, 2017 and 2018; (iv) Consolidated Statements of Cash Flows for the years ended December 31, 2016, 2017 and 2018; and (v) Notes to Consolidated Financial
Statements
|
(1) |
Incorporated by reference to Exhibit 99.2 of the Company's Current Report on Form 6-K, filed on June 24, 2011
|
(2) |
Incorporated by reference to Exhibit 99.1 of the Company's Current Report on Form 6-K, filed on April 18, 2014
|
(3) |
Incorporated by reference to Exhibit 1.3 of the Company's Annual Report on Form 20-F, filed on April 26, 2016
|
(4) |
Incorporated by reference to Exhibit 99.1 of the Company's Current Report on Form 6-K filed on March 9, 2007
|
(5) |
Incorporated by reference to Exhibit 1 of the Company's Current Report on Form 6-K filed on November 28, 2014
|
(6) |
Incorporated by reference to Exhibit 2.1 of the Company's Annual Report on Form 20-F, filed on June 29, 2009
|
(7) |
Incorporated by reference to Exhibit 2.2 of the Company's Annual Report on Form 20-F, filed on March 14, 2017
|
(8) |
Incorporated by reference to Exhibit 4.3 of the Company's Post-Effective Amendment No. 1 to the Registration Statement on Form F-1, filed on May 9, 2016 (File
No. 333-194690)
|
(9) |
Incorporated by reference to Exhibit 4.1 of the Company's Pre-Effective Amendment No. 2 to the Registration Statement on Form F-1, filed on May 13, 2014 (File
No. 333-194690)
|
(10) |
Incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 6-K, filed on September 22, 2016
|
(11) |
Incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 6-K, filed on November 23, 2016
|
(12) |
Incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 6-K, filed on February 21, 2017
|
(13) |
Incorporated by reference to Exhibit 4.1 of the Company's Current Report on Form 6-K, filed on May 8, 2017
|
(14) |
Incorporated by reference to Exhibit 4.1 of the Company's Annual Report on Form 20-F, filed on April 26, 2016
|
(15) |
Incorporated by reference to Exhibit 4.1 of the Company's Current Report on Form 6-K, filed on September 22, 2016
|
(16) |
Incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 6-K, filed on November 23, 2016
|
(17) |
Incorporated by reference to Exhibit 10.2 of the Company's Current Report on Form 6-K, filed on November 23, 2016
|
(18) |
Incorporated by reference to Exhibit 10.42 of the Company's Registration Statement on Form F-1, filed on March 19, 2014, as amended (File No. 333-194960)
|
(19) |
Incorporated by reference to Exhibit 10.43 of the Company's Registration Statement on Form F-1, filed on March 19, 2014, as amended (File No. 333-194960)
|
(20) |
Incorporated by reference to Exhibit 4.29 of the Company's Annual Report on Form 20-F, filed on April 29, 2015
|
(21) |
Incorporated by reference to Exhibit 4.30 of the Company's Annual Report on Form 20-F, filed on April 29, 2015
|
(22) |
Incorporated by reference to Exhibit 4.33 of the Company's Annual Report on Form 20-F, filed on April 29, 2015
|
(23) |
Incorporated by reference to Exhibit 4.31 of the Company's Annual Report on Form 20-F, filed on April 29, 2015
|
(24) |
Incorporated by reference to Exhibit 4.32 of the Company's Annual Report on Form 20-F, filed on April 29, 2015
|
(25) |
Incorporated by reference to Exhibit 4.34 of the Company's Annual Report on Form 20-F, filed on April 29, 2015
|
(26) |
Incorporated by reference to Exhibit 4.37 of the Company's Annual Report on Form 20-F, filed on April 26, 2016
|
(27) |
Incorporated by reference to Exhibit 4.38 the Company's Annual Report on Form 20-F, filed on April 26, 2016
|
(28) |
Incorporated by reference to Exhibit 4.18 of the Company's Annual Report on Form 20-F, filed on March 14, 2017
|
(29) |
Incorporated by reference to Exhibit 4.39 of the Company's Annual Report on Form 20-F, filed on April 26, 2016
|
(30) |
Incorporated by reference to Exhibit 4.40 of the Company's Annual Report on Form 20-F, filed on April 26, 2016
|
(31) |
Incorporated by reference to Exhibit 4.41 of the Company's Annual Report on Form 20-F, filed on April 26, 2016
|
(32) |
Incorporated by reference to Exhibit 4.42 of the Company's Annual Report on Form 20-F, filed on April 26, 2016
|
(33) |
Incorporated by reference to Exhibit 10.40 of the Company's Post-Effective Amendment No. 2 to the Registration Statement on Form F-1, filed on June 23, 2016
(File No. 333-194690)
|
(34) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on February 2, 2017
|
(35) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on March 20, 2017
|
(36) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on March 27, 2017
|
(37) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on April 5, 2017
|
(38) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on April 28, 2017
|
(39) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on February 7, 2017
|
(40) |
Incorporated by reference to Exhibit 1.2 of the Company's Current Report on Form 6-K, filed on February 7, 2017
|
(41) |
Incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 6-K, filed on February 21, 2017
|
(42) |
Incorporated by reference to Exhibit 4.28 of the Company's Annual Report of Form 20-F, filed on March 14, 2017
|
(43) |
Incorporated by reference to Exhibit B of the Schedule 13D/A of Family Trading Inc., Sovereign Holdings Inc., Epsilon Holdings Inc., Oscar Shipholding Ltd,
Race Navigation Inc., Tankers Family Inc., and the Lax Trust, filed on March 1, 2017
|
(44) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on March 22, 2017
|
(45) |
Incorporated by reference to Exhibit 1.2 of the Company's Current Report on Form 6-K, filed on March 22, 2017
|
(46) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on March 28, 2017
|
(47) |
Incorporated by reference to Exhibit 1.2 of the Company's Current Report on Form 6-K, filed on March 28, 2017
|
(48) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on April 5, 2017
|
(49) |
Incorporated by reference to Exhibit 1.2 of the Company's Current Report on Form 6-K, filed on April 5 2017
|
(50) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on May 15, 2017
|
(51) |
Incorporated by reference to Exhibit 1.2 of the Company's Current Report on Form 6-K, filed on May 15, 2017
|
(52) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on September 15, 2017
|
(53) |
Incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 6-K, filed on May 8, 2017
|
(54) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on November 8, 2017
|
(55) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on November 14, 2017
|
(56) |
Incorporated by reference to Exhibit 1.2 of the Company's Current Report on Form 6-K, filed on November 14, 2017
|
(57) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on December 11, 2017
|
(58) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on December 15, 2017
|
(59) |
Incorporated by reference to Exhibit 1.2 of the Company's Current Report on Form 6-K, filed on December 15, 2017
|
(60) |
Incorporated by reference to Exhibit 1.1 of the Company's Current Report on Form 6-K, filed on January 8, 2018
|
(61) |
Incorporated by reference to Exhibit 1.2 of the Company's Current Report on Form 6-K, filed on January 8, 2018
|
(62) |
Incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 6-K, filed on October 24, 2018
|
(63) |
Incorporated by reference to Exhibit 10.2 of the Company's Current Report on Form 6-K, filed on October 24, 2018
|
(64) |
Incorporated by reference to Exhibit 99.1 of the Company's Current Report on Form 6-K, filed on October 24, 2018
|
(65)
|
Incorporated by reference to Exhibit 99.1 of the Company's Current Report on Form 6-K, filed on January 11, 2019
|
(66) |
Incorporated by reference to Exhibit 1.4 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(67) |
Incorporated by reference to Exhibit 1.5 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(68) |
Incorporated by reference to Exhibit 1.6 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(69) |
Incorporated by reference to Exhibit 1.7 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(70) |
Incorporated by reference to Exhibit 1.8 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(71) |
Incorporated by reference to Exhibit 1.9 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(72) |
Incorporated by reference to Exhibit 4.5 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(74) |
Incorporated by reference to Exhibit 4.6 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(74) |
Incorporated by reference to Exhibit 4.7 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(75) |
Incorporated by reference to Exhibit 4.8 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(76) |
Incorporated by reference to Exhibit 4.20 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(77) |
Incorporated by reference to Exhibit 4.26 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(78) |
Incorporated by reference to Exhibit 4.27 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(79) |
Incorporated by reference to Exhibit 4.28 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(80) |
Incorporated by reference to Exhibit 4.38 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(81) |
Incorporated by reference to Exhibit 4.39 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(82) |
Incorporated by reference to Exhibit 4.40 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(83) |
Incorporated by reference to Exhibit 4.41 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(84) |
Incorporated by reference to Exhibit 4.47 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(85) |
Incorporated by reference to Exhibit 4.48 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(86) |
Incorporated by reference to Exhibit 4.49 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(87) |
Incorporated by reference to Exhibit 4.50 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(88) |
Incorporated by reference to Exhibit 4.53 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(89) |
Incorporated by reference to Exhibit 4.56 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(90) |
Incorporated by reference to Exhibit 4.57 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(91) |
Incorporated by reference to Exhibit 4.60 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(92) |
Incorporated by reference to Exhibit 4.61 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(93) |
Incorporated by reference to Exhibit 4.62 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(94) |
Incorporated by reference to Exhibit 4.71 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(95) |
Incorporated by reference to Exhibit 4.72 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(96) |
Incorporated by reference to Exhibit 4.73 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(97) |
Incorporated by reference to Exhibit 4.74 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(98) |
Incorporated by reference to Exhibit 4.75 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(99) |
Incorporated by reference to Exhibit 4.76 of the Company's Annual Report of Form 20-F, filed on March 29, 2018
|
(100) |
Incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 6-K, filed on October 3, 2018.
|
(101) |
Incorporated by reference to Exhibit F of the Schedule 13D/A of Family Trading Inc., Sovereign Holdings Inc., Epsilon Holdings Inc., Race Navigation Inc.,
Tankers Family Inc., and the Lax Trust, filed on March 12, 2019.
|
(102) |
Incorporated by reference to Exhibit G of the Schedule 13D/A of Family Trading Inc., Sovereign Holdings Inc., Epsilon Holdings Inc., Race Navigation Inc.,
Tankers Family Inc., and the Lax Trust, filed on March 12, 2019.
|
(103) |
Incorporated by reference to Exhibit H of the Schedule 13D/A of Family Trading Inc., Sovereign Holdings Inc., Epsilon Holdings Inc., Race Navigation Inc.,
Tankers Family Inc., and the Lax Trust, filed on March 12, 2019.
|
TOP SHIPS INC.
|
||
(Registrant)
|
||
Date: March 27, 2019
|
By:
|
/s/ Evangelos J. Pistiolis
|
Evangelos J. Pistiolis
|
||
President, Chief Executive Officer, and Director
|
|
Page
|
Report of Independent Registered Public Accounting Firm
|
F-2
|
|
|
Consolidated Balance sheets as of December 31, 2017 and 2018
|
F-3
|
|
|
Consolidated Statements of Comprehensive loss for the years ended December 31, 2016, 2017 and 2018
|
F-5
|
|
|
Consolidated Statements of Stockholders' equity for the years ended December 31, 2016, 2017 and 2018
|
F-6
|
|
|
Consolidated Statements of Cash flows for the years ended December 31, 2016, 2017 and 2018
|
F-8
|
|
|
Notes to consolidated financial statements
|
F-10
|
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have audited the accompanying consolidated balance sheets of Top Ships Inc. and subsidiaries (the “Company”) as of December 31, 2018 and 2017, the related consolidated statements of comprehensive loss, stockholders’ equity and cash flows, for each of the three years in the period ended December 31, 2018 and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.
Basis
for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Deloitte Certified Public Accountants S.A.
Athens, Greece
March 27, 2019
We have served as the Company's auditor since 2006.
TOP SHIPS INC.
|
CONSOLIDATED BALANCE SHEETS
|
DECEMBER 31, 2017 AND 2018
|
|
(Expressed in thousands of U.S. Dollars - except share and per share data)
|
COMMITMENTS AND CONTINGENCIES (Note 10)
|
||||||||
|
||||||||
Total liabilities
|
113,174
|
154,207
|
||||||
|
||||||||
STOCKHOLDERS’ EQUITY:
|
||||||||
|
||||||||
Preferred stock, $0.01 par value; 20,000,000 shares authorized; of which 100,000 Series D shares were outstanding at December 31,
2017 and 2018 (Note 11)
|
1
|
1
|
||||||
Common stock, $0.01 par value; 1,000,000,000 shares authorized; 8,923,617 and 23,017,467 shares issued and outstanding at
December 31, 2017 and 2018 (Note 11)
|
89
|
230
|
||||||
Additional paid-in capital (Note 11)
|
402,644
|
411,829
|
||||||
Accumulated deficit
|
(296,645
|
)
|
(307,779
|
)
|
||||
|
||||||||
Total stockholders’ equity
|
106,089
|
104,281
|
||||||
|
||||||||
Non-controlling Interests
|
1,185
|
-
|
||||||
Total equity
|
107,274
|
104,281
|
||||||
Total liabilities and stockholders’ equity
|
220,448
|
258,488
|
||||||
|
|
||||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||
Preferred Stock
|
Common Stock
|
|
|
|||||||||||||||||||||||||||||
# of Shares
|
Par Value
|
# of Shares*
|
Par Value*
|
Additional
Paid in
Capital*
|
Accumulated Deficit
attributable to common stockholders
|
Non-controlling interest
|
Total
|
|||||||||||||||||||||||||
BALANCE, December 31, 2015
|
11
|
-
|
318,446
|
(284,293
|
)
|
-
|
34,153
|
|||||||||||||||||||||||||
Net income and comprehensive income
|
|
1 |
-
|
-
|
-
|
1,052
|
-
|
1,052
|
||||||||||||||||||||||||
Stock-based compensation (Note 12)
|
-
|
239
|
-
|
-
|
239
|
|||||||||||||||||||||||||||
Common shares issued in exchange of assumption of Delos Termination Fee (Note 5)
|
8
|
-
|
3,796
|
-
|
-
|
3,796
|
||||||||||||||||||||||||||
Issuance of common stock due to exercise of 2014 Warrants (Note 11)
|
12
|
6,281
|
-
|
-
|
6,281
|
|||||||||||||||||||||||||||
Deemed dividend for Series B convertible preferred stock’s beneficial conversion feature (Note 19)
|
-
|
-
|
(1,403
|
)
|
-
|
-
|
(1,403
|
)
|
||||||||||||||||||||||||
Beneficial conversion feature of Series B convertible preferred stock (Note 19)
|
-
|
-
|
1,403
|
-
|
-
|
1,403
|
||||||||||||||||||||||||||
BALANCE, December 31, 2016
|
31
|
-
|
328,762
|
(283,241
|
)
|
-
|
45,521
|
|||||||||||||||||||||||||
Net loss
|
-
|
-
|
-
|
(13,404
|
)
|
32
|
(13,372
|
)
|
||||||||||||||||||||||||
Issuance of common stock pursuant to convertible related party loans (Note 9)
|
4
|
2,040
|
-
|
-
|
2,040
|
|||||||||||||||||||||||||||
Issuance of common stock pursuant to the Common Stock Purchase Agreement (Note 11)
|
632,775
|
6
|
38,383
|
-
|
-
|
38,389
|
||||||||||||||||||||||||||
Issuance of common stock pursuant to the Crede Common Stock Purchase Agreement (Note 11)
|
7,148,889
|
72
|
28,561
|
-
|
-
|
28,633
|
||||||||||||||||||||||||||
Issuance of common stock pursuant to Series C convertible preferred shares conversions (Note 9 and 11)
|
904,646
|
9
|
8,204
|
-
|
-
|
8,213
|
||||||||||||||||||||||||||
Series C convertible preferred stock's beneficial conversion feature (Note 9)
|
-
|
-
|
7,500
|
-
|
-
|
7,500
|
||||||||||||||||||||||||||
Issuance of common stock due to exercise of 2014 Warrants (Note 11)
|
219,250
|
2
|
1,538
|
-
|
-
|
1,540
|
||||||||||||||||||||||||||
Stock-based compensation (Note 12)
|
-
|
-
|
(25
|
)
|
-
|
-
|
(25
|
)
|
||||||||||||||||||||||||
Non-controlling interest on acquisition of Eco Seven Inc (Note 1)
|
5,278
|
5,278
|
||||||||||||||||||||||||||||||
Reduction of non-controlling interest arising from Company’s purchase of additional ownership interest in Eco Seven In. (Note 1)
|
(4,125
|
)
|
(4,125
|
)
|
||||||||||||||||||||||||||||
Excess of consideration over acquired assets (Note 1)
|
-
|
-
|
(12,909
|
)
|
(12,909
|
)
|
Cancellation of fractional shares due to reverse stock splits
|
(4
|
)
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||||||||||||
Issuance of common stock pursuant to Series B convertible preferred stock conversions reflected in Mezzanine equity (Note 19)
|
18,026
|
1,743
|
-
|
-
|
1,743
|
|||||||||||||||||||||||||||
Issuance of Series D preferred stock (Note 11)
|
100,000
|
1
|
-
|
-
|
-
|
-
|
-
|
1
|
||||||||||||||||||||||||
Additional paid-in capital attributed to non-controlling interests
|
-
|
-
|
(1,153
|
)
|
-
|
(1,153
|
)
|
|||||||||||||||||||||||||
BALANCE, December 31, 2017
|
100,000
|
1
|
8,923,617
|
89
|
402,644
|
(296,645
|
)
|
1,185
|
107,274
|
|||||||||||||||||||||||
Net loss
|
-
|
-
|
-
|
-
|
-
|
(11,134
|
)
|
5
|
(11,129
|
)
|
||||||||||||||||||||||
Issuance of common stock pursuant to the Crede Common Stock Purchase Agreement (Note 11)
|
-
|
-
|
8,050,000
|
81
|
14,708
|
-
|
-
|
14,789
|
||||||||||||||||||||||||
Issuance of common stock pursuant to Maxim ATM (Note 11)
|
-
|
-
|
2,490,853
|
25
|
2,589
|
-
|
-
|
2,614
|
||||||||||||||||||||||||
Issuance of common stock due to exercise of 2018 Warrants (Note 11)
|
-
|
-
|
1,553,000
|
16
|
2,162
|
-
|
-
|
2,178
|
||||||||||||||||||||||||
Issuance of common stock due to the 2018 Common Stock Offering (Note 11)
|
-
|
-
|
2,000,000
|
20
|
2,701
|
-
|
-
|
2,721
|
||||||||||||||||||||||||
Purchase of 10% of M/T Stenaweco Elegance (Note 1)
|
-
|
-
|
-
|
-
|
-
|
-
|
(1,190
|
)
|
(1,190
|
)
|
||||||||||||||||||||||
Stock-based compensation
|
-
|
-
|
-
|
-
|
(34
|
)
|
-
|
-
|
(34
|
)
|
||||||||||||||||||||||
Family Trading facility beneficial
conversion feature (Note 9)
|
-
|
-
|
-
|
-
|
15,028
|
-
|
-
|
15,028
|
||||||||||||||||||||||||
Elimination of beneficial
conversion feature with debt extinguishment (Note 9)
|
-
|
-
|
-
|
-
|
(3,451
|
)
|
-
|
-
|
(3,451
|
)
|
||||||||||||||||||||||
Deemed dividend due to debt extinguishment of FT facility (Note 9)
|
-
|
-
|
-
|
-
|
(2,258
|
)
|
-
|
-
|
(2,258
|
)
|
||||||||||||||||||||||
Excess of consideration over acquired assets (Note 1)
|
-
|
-
|
-
|
-
|
(22,260
|
)
|
-
|
-
|
(22,260
|
)
|
||||||||||||||||||||||
Cancellation of fractional shares due to reverse stock split
|
-
|
-
|
(3
|
)
|
(1
|
)
|
-
|
-
|
-
|
(1
|
)
|
|||||||||||||||||||||
BALANCE, December 31, 2018
|
100,000
|
1
|
23,017,467
|
230
|
411,829
|
(307,779
|
)
|
-
|
104,281
|
The accompanying notes are an integral part of these consolidated financial statements.
|
TOP SHIPS INC.
|
||||||||||||
CONSOLIDATED STATEMENTS OF CASH FLOWS
|
||||||||||||
FOR THE YEARS ENDED DECEMBER 31, 2016, 2017 AND 2018
|
||||||||||||
(Expressed in thousands of U.S. Dollars)
|
||||||||||||
2016
|
2017
|
2018
|
||||||||||
Cash Flows from Operating Activities:
|
||||||||||||
Net income/(loss)
|
1,052
|
(13,372
|
)
|
(11,129
|
)
|
|||||||
Adjustments to reconcile net income/(loss) to net cash
|
||||||||||||
provided by operating activities:
|
||||||||||||
Vessel depreciation (Note 4)
|
3,467
|
5,744
|
6,390
|
|||||||||
Other fixed assets depreciation
|
121
|
120
|
373
|
|||||||||
Equity losses/(gains) in unconsolidated joint ventures
|
-
|
27
|
(291
|
)
|
||||||||
Non-cash debt conversion expenses
|
-
|
842
|
-
|
|||||||||
Amortization and write off of deferred financing costs
|
163
|
1,640
|
1,305
|
|||||||||
Amortization of debt discount
|
-
|
7,500
|
2,504
|
|||||||||
Stock-based compensation expense (Note 12)
|
239
|
(25
|
)
|
(34
|
)
|
|||||||
Change in fair value of derivative financial instruments (Note 17)
|
682
|
(175
|
)
|
(1,821
|
)
|
|||||||
Write-off of short term debt (Note 9)
|
-
|
(1,118
|
)
|
(180
|
)
|
|||||||
Loss on sale of other fixed assets
|
22
|
-
|
-
|
|||||||||
Amortization of prepaid bareboat charter hire (Note 6)
|
1,577
|
1,657
|
1,657
|
|||||||||
Other operating income
|
(3,137
|
)
|
(914
|
)
|
-
|
|||||||
(Increase)/Decrease in:
|
||||||||||||
Trade accounts receivable
|
88
|
(602
|
)
|
(194
|
)
|
|||||||
Inventories
|
(181
|
)
|
(62
|
)
|
58
|
|||||||
Prepayments and other
|
(429
|
)
|
436
|
(380
|
)
|
|||||||
Due from related parties
|
(34
|
)
|
34
|
(75
|
)
|
|||||||
Increase/(Decrease) in:
|
||||||||||||
Due to related parties
|
14
|
(1,034
|
)
|
2,621
|
||||||||
Accounts payable
|
954
|
(207
|
)
|
695
|
||||||||
Accrued liabilities
|
128
|
1,196
|
203
|
|||||||||
Unearned revenue
|
1,978
|
(992
|
)
|
(986
|
)
|
|||||||
|
||||||||||||
Net Cash provided by Operating Activities
|
6,704
|
695
|
716
|
|||||||||
|
||||||||||||
Cash Flows used in Investing Activities:
|
||||||||||||
|
||||||||||||
Advances for vessels under construction and capitalized expenses (Note 4)
|
(73,383
|
)
|
(6,757
|
)
|
(63,555
|
)
|
||||||
Vessel acquisitions (Note 4)
|
-
|
(34,671
|
)
|
-
|
||||||||
Investments in unconsolidated joint ventures (Note 20)
|
-
|
(17,639
|
)
|
(3,681
|
)
|
|||||||
Purchase of 10% of M/T Stenaweco Elegance (Note 1)
|
-
|
-
|
(1,190
|
)
|
||||||||
Net proceeds from sale of other fixed assets
|
29
|
-
|
-
|
|||||||||
|
||||||||||||
Net Cash used in Investing Activities
|
(73,354
|
)
|
(59,067
|
)
|
(68,426
|
)
|
||||||
|
||||||||||||
Cash Flows from Financing Activities:
|
||||||||||||
|
||||||||||||
Proceeds from debt (Note 9)
|
65,385
|
24,849
|
28,500
|
|||||||||
Proceeds from short-term debt (Note 9)
|
-
|
68,790
|
32,783
|
|||||||||
Proceeds from related party debt (Note 9)
|
235
|
3,148
|
26,152
|
|||||||||
Principal payments of debt
|
(5,085
|
)
|
(9,546
|
)
|
(10,221
|
)
|
||||||
Proceeds from issuance of Series C convertible preferred stock (Note 9 and 11)
|
-
|
7,500
|
-
|
|||||||||
Prepayment of related party debt (Note 9)
|
-
|
(7,233
|
)
|
(1,408
|
)
|
|||||||
Prepayment of short term debt (Note 9)
|
-
|
-
|
(8,993
|
)
|
||||||||
Prepayment of short term Notes (Note 9)
|
-
|
-
|
(5,656
|
)
|
||||||||
Excess of purchase price over book value of vessels (Note 1)
|
-
|
(12,909
|
)
|
(22,260
|
)
|
|||||||
Proceeds from common issuance of common stock (Note 11)
|
-
|
9,726
|
5,781
|
|||||||||
Proceeds from warrant exercises (Note 11)
|
5,765
|
1,567
|
2,330
|
|||||||||
Proceeds from issuance of Series B convertible preferred stock
|
2,001
|
-
|
-
|
|||||||||
Equity offering issuance costs
|
(87
|
)
|
(1,342
|
)
|
(536
|
)
|
||||||
Payment of financing costs
|
(388
|
)
|
(1,159
|
)
|
(1,713
|
)
|
|
||||||||||||
Net Cash provided by Financing Activities
|
67,826
|
83,391
|
44,759
|
|||||||||
|
||||||||||||
Net increase/(decrease) in cash and cash equivalents and restricted cash
|
1,176
|
25,019
|
(22,951
|
)
|
||||||||
|
||||||||||||
Cash and cash equivalents and restricted cash at beginning of year
|
4,418
|
5,594
|
30,613
|
|||||||||
Cash and cash equivalents and restricted cash at end of the year
|
5,594
|
30,613
|
7,662
|
|||||||||
Cash breakdown
|
||||||||||||
Cash and cash equivalents
|
127
|
24,081
|
57
|
|||||||||
Restricted cash, current
|
1,257
|
1,283
|
1,290
|
|||||||||
Restricted cash, non-current
|
4,210
|
5,249
|
6,315
|
|||||||||
SUPPLEMENTAL CASH FLOW INFORMATION
|
||||||||||||
Capital expenditures included in Accounts payable/Accrued liabilities/Due to related parties
|
205
|
43
|
555
|
|||||||||
Interest paid, net of capitalized interest
|
2,434
|
5,103
|
6,322
|
|||||||||
Finance fees included in Accounts payable/Accrued liabilities/Due to related parties
|
67
|
372
|
2,109
|
|||||||||
Equity issuance costs included in liabilities
|
792
|
1,108
|
117
|
|||||||||
Shares issued as consideration for the assumption of liabilities
|
3,796
|
-
|
-
|
|||||||||
Beneficial conversion feature of Series B convertible preferred stock (Note 19)
|
1,403
|
-
|
-
|
|||||||||
Deemed dividend for beneficial conversion feature of Series B convertible preferred stock (Note 19)
|
(1,403
|
)
|
-
|
-
|
||||||||
Shares issued in exchange for converting debt, interest & finance fees
|
-
|
10,890
|
-
|
|||||||||
Settlement of notes with common stock issued (Note 9 and 11)
|
-
|
58,794
|
14,811
|
|||||||||
Elimination of beneficial conversion feature with debt extinguishment (Note 9)
|
-
|
-
|
(3,451
|
)
|
|
1. |
Basis of Presentation and General Information:
|
|
Companies
|
Date of
Incorporation
|
Country of
Incorporation
|
Activity
|
Top Tanker Management Inc.
|
May 2004
|
Marshall Islands
|
Management company
|
|
Wholly owned Shipowning Companies (“SPC”) with vessels in operation during years ended December 31, 2016, 2017
and 2018
|
Date of
Incorporation
|
Country of
Incorporation
|
Vessel
|
Delivery Date
|
|
1
|
Monte Carlo 71 Shipping Company Limited
|
June 2014
|
Marshall Islands
|
M/T Stenaweco Energy
|
July 2014
|
|
2
|
Monte Carlo One Shipping Company Ltd
|
June 2012
|
Marshall Islands
|
M/T Stenaweco Evolution
|
March 2015
|
|
3
|
Monte Carlo Seven Shipping Company Limited
|
April 2013
|
Marshall Islands
|
M/T Stenaweco Excellence
|
May 2016
|
|
4
|
Monte Carlo Lax Shipping Company Limited
|
May 2013
|
Marshall Islands
|
M/T Nord Valiant
|
August 2016
|
|
5
|
Monte Carlo 37 Shipping Company Limited
|
September 2013
|
Marshall Islands
|
M/T Eco Fleet
|
July 2015
|
|
6
|
Monte Carlo 39 Shipping Company Limited
|
December 2013
|
Marshall Islands
|
M/T Eco Revolution
|
January 2016
|
|
7
|
Eco Seven Inc.
|
February 2017
|
Marshall Islands
|
M/T Stenaweco Elegance
|
February 2017
|
|
8
|
Astarte International Inc.
|
April 2017
|
Marshall Islands
|
M/T Eco Palm Desert
|
September 2018
|
Wholly owned SPCs with vessels under construction during year ended December 31, 2018
|
Date of
Incorporation
|
Country of
Incorporation
|
Vessel
|
Scheduled delivery date
|
||
9
|
PCH77 Shipping Company Limited
|
September 2017
|
Marshall Islands
|
M/T Eco California
|
January 2019
|
|
10
|
PCH Dreaming Inc.
|
January 2018
|
Marshall Islands
|
M/T Eco Marina Del Ray
|
March 2019
|
|
11
|
South California Inc.
|
January 2018
|
Marshall Islands
|
M/T Eco Bel Air
|
April 2019
|
|
12
|
Malibu Warrior Inc.
|
January 2018
|
Marshall Islands
|
M/T Eco Beverly Hills
|
May 2019
|
SPC
|
Date of
Incorporation
|
Country of
Incorporation
|
Vessel
|
Built Date
|
|
1
|
City of Athens Pte. Ltd.
|
November 2016
|
Singapore
|
M/T Eco Holmby Hills
|
March 2018
|
2
|
Eco Nine Pte. Ltd.
|
March 2015
|
Singapore
|
M/T Eco Palm Springs
|
May 2018
|
|
a. |
100% of the issued and outstanding shares of PCH Dreaming Inc., a Marshall Islands company that had entered into a new building contract for a high
specification 50,000 dwt Medium Range (“MR”) product/chemical tanker (M/T Eco Marina Del Ray or Hull No 8242) under construction at Hyundai Mipo Dockyard Co., Ltd. in South Korea and delivered in March 2019. The Company acquired
the shares from an entity affiliated with the Company’s Chief Executive Officer, for an aggregate purchase price of $3,950. The transaction specified that following its delivery, the vessel was going to enter into a time charter
with an entity affiliated with the seller for a firm duration of one year at a gross daily rate of $16,000, with a charterer’s option to extend for two additional years at $17,000 and $18,000, respectively. In June 2018 the Company
cancelled without penalty the abovementioned time charter and entered into a new 5 year time charter with Cargill International SA (“Cargill”) at a gross daily rate of $15,100.
|
|
b. |
100% of the issued and outstanding shares of South California Inc., a Marshall Islands company that had entered into a new building contract for a high
specification, scrubber-equipped, 157,000 dwt Suezmax Crude Oil Carrier (M/T Eco Bel Air or Hull No 874) under construction at Hyundai Samho Heavy Industries Co. Ltd. in South Korea and scheduled for delivery during April 2019. The
Company acquired the shares from an entity affiliated with the Company’s Chief Executive Officer for an aggregate purchase price of $8,950. The transaction specified that following its delivery, the vessel was going to enter into a
time charter with an entity affiliated with the Seller for a firm duration of one year at a gross daily rate of $25,000, with a charterer’s option to extend for two additional years at $26,000 and $27,000, respectively. In June the
Company cancelled without penalty the abovementioned time charter and entered into a new 3 year time charter with BP Shipping Limited at a gross daily rate of $25,000, with a charterer’s option to extend for two additional years at
$28,000 and $29,500, respectively.
|
|
c. |
100% of the issued outstanding shares of Malibu Warrior Inc., a Marshall Islands company that had entered into a new building contract for a high
specification, scrubber-equipped, 157,000 dwt Suezmax Crude Oil Carrier (M/T Beverly Hills or Hull No 875) under construction at Hyundai Samho Heavy Industries Co. Ltd. in South Korea and scheduled for delivery during May 2019. The
Company acquired the shares from an entity affiliated with the Company’s Chief Executive Officer for an aggregate purchase price of $8,950. The transaction specified that following its delivery, the vessel was going to enter into a
time charter with an entity affiliated with the Seller for a firm duration of one year at a gross daily rate of $25,000, with a charterer’s option to extend for two additional years at $26,000 and $27,000, respectively. In June 2018
the Company cancelled without penalty the abovementioned time charter and entered into a new 3 year time charter with BP Shipping Limited at a gross daily rate of $25,000, with a charterer’s option to extend for two additional years
at $28,000 and $29,500, respectively.
|
|
d. |
10% of the issued and outstanding shares of Eco Seven Inc., the owner of M/T Stena Elegance. The Company acquired the shares from an entity affiliated
with the Company’s Chief Executive Officer for an aggregate purchase price of $1,600. As a result of the transaction the Company owns 100% of the issued and outstanding shares of Eco Seven Inc.
|
Consideration in cash
|
24,100
|
|||
Less: Carrying value of net assets of companies acquired
|
11,191
|
|||
Excess of consideration over acquired assets
|
12,909
|
Consideration in cash
|
23,450
|
|||
Less: Carrying value of net assets of companies acquired
|
1,190
|
|||
Excess of consideration over acquired assets
|
22,260
|
|
2. |
Significant Accounting Policies:
|
Description
|
Useful Life (years)
|
|||
Leasehold improvements
|
Until the end of the lease term (December 2024)
|
|||
Cars
|
6
|
|||
Office equipment
|
5
|
|||
Furniture and fittings
|
5
|
|||
Computer equipment
|
3
|
|
3. |
Going Concern:
|
|
4(a) |
Advances for vessels acquisitions / under construction:
|
Advances for vessels acquisitions / under construction
|
||||
Balance, December 31, 2016
|
-
|
|||
— Advances paid
|
5,995
|
|||
—Capitalized expenses
|
762
|
|||
Balance, December 31, 2017
|
6,757
|
|||
— Advances paid
|
60,731
|
|||
— Capitalized expenses
|
3,346
|
|||
— Transferred to Vessels
|
(32,090
|
)
|
||
Balance, December 31, 2018
|
38,744
|
|
4(b) |
Vessels, net:
|
|
Vessel Cost
|
Accumulated Depreciation
|
Net Book Value
|
|||||||||
Balance, December 31, 2016
|
130,185
|
(4,015
|
)
|
126,170
|
||||||||
— Acquisitions
|
34,509
|
-
|
34,509
|
|||||||||
— Depreciation
|
-
|
(5,744
|
)
|
(5,744
|
)
|
|||||||
Balance, December 31, 2017
|
164,694
|
(9,759
|
)
|
154,935
|
||||||||
— Transferred from advances for vessels acquisitions / under construction
|
32,090
|
-
|
32,090
|
|||||||||
— Depreciation
|
-
|
(6,390
|
)
|
(6,390
|
)
|
|||||||
Balance, December 31, 2018
|
196,784
|
(16,149
|
)
|
180,635
|
Vessel Name
|
Delivery Date
|
Yard Installments
|
Capitalized Expenses
|
Final Cost
|
|||||||||
M/T Stenaweco Elegance
|
February 28, 2017
|
33,935
|
574
|
34,509
|
|||||||||
M/T Eco Palm Desert
|
September 7, 2018
|
29,994
|
2,096
|
32,090
|
|
5. |
Transactions with Related Parties:
|
|
6. |
Leases
|
Current portion of Prepaid bareboat charter hire
|
1,656
|
|||
Non-current portion of Prepaid bareboat charter hire
|
3,621
|
|||
Total
|
5,277
|
Year ending December 31,
|
Bareboat Charter Lease Payments
|
|||
2019
|
6,282
|
|||
2020
|
6,299
|
|||
2021
|
6,282
|
|||
2022
|
1,034
|
|||
Total
|
19,897
|
Year ending December 31,
|
Time Charter receipts
|
|||
2019
|
43,875
|
|||
2020
|
43,400
|
|||
2021
|
19,052
|
|||
2022
|
272
|
|||
Total
|
106,599
|
Year ending December 31,
|
Time Charter receipts
|
|||
2019
|
21,842
|
|||
2020
|
28,860
|
|||
2021
|
24,188
|
|||
2022
|
10,937
|
|||
2023
|
5,512
|
|||
2024
|
1,102
|
|||
Total
|
92,441
|
|
7. |
Prepayments and other:
|
|
December 31, 2017
|
December 31, 2018
|
||||||
Prepaid expenses
|
140
|
350
|
||||||
Guarantees
|
17
|
16
|
||||||
Advances to various creditors
|
119
|
100
|
||||||
Other receivables
|
152
|
342
|
||||||
Total
|
428
|
808
|
|
8. |
Inventories:
|
December 31, 2017
|
December 31, 2018
|
|||||||
Lubricants
|
574
|
522
|
||||||
Consumable stores
|
71
|
65
|
||||||
Total
|
645
|
587
|
|
9. |
Debt:
|
Bank / Vessel(s)
|
December 31,
|
December 31,
|
||||||
2017
|
2018
|
|||||||
Total long term debt:
|
||||||||
ABN (M/T Eco Fleet, M/T Eco Revolution and M/T Nord Valiant)
|
53,538
|
52,288
|
||||||
NORD/LB (M/T Stenaweco Excellence)
|
20,116
|
18,071
|
||||||
Alpha Bank (M/T Stenaweco Elegance)
|
22,150
|
20,550
|
||||||
AT Bank (M/T Eco Palm Desert)
|
-
|
23,175
|
||||||
Total long term debt
|
95,804
|
114,084
|
||||||
Less: Deferred finance fees
|
(2,038
|
)
|
(2,516
|
)
|
||||
Total long term debt net of deferred finance fees
|
93,766
|
111,568
|
||||||
Presented:
|
||||||||
Current portion of long term debt
|
9,508
|
10,210
|
||||||
Long term debt
|
84,258
|
101,358
|
||||||
Long term debt from related parties:
|
||||||||
Family Trading facility
|
-
|
24,744
|
||||||
Less debt discounts
|
(9,073
|
)
|
||||||
Long term debt from related parties net of debt discounts
|
-
|
15,671
|
||||||
Short Term Debt:
|
||||||||
Unsecured Notes
|
8,878
|
-
|
||||||
AT Bank first predelivery facility (M/T Eco Palm Desert)
|
1,499
|
-
|
||||||
AT Bank second predelivery facility (M/T Eco California)
|
-
|
10,140
|
||||||
Alpha Bank predelivery facility
|
-
|
3,380
|
||||||
Less: Deferred finance fees
|
(194
|
)
|
(104
|
)
|
||||
Current portion of loans net of deferred finance fees
|
10,183
|
13,416
|
||||||
Total Debt net of deferred finance fees and debt discounts
|
103,949
|
140,655
|
|
· |
First priority mortgage over M/T Eco Fleet, M/T Eco Revolution and M/T Nord Valiant;
|
|
· |
Assignment of insurance and earnings of the mortgaged vessels;
|
|
· |
Specific assignment of any time charters with duration of more than 12 months;
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Pledge of the shares of the shipowning subsidiaries;
|
|
· |
Pledge over the earnings account of the vessels.
|
Agreement date
|
Amount drawn
|
Interest
|
Amount settled
|
Amounts forgiven
|
||||||||||||
November 13
, 2017
|
17,500
|
11
|
(17,500
|
)
|
-
|
|||||||||||
December 14
, 2017
|
24,269
|
75
|
(24,089
|
)
|
(180
|
)
|
||||||||||
41,769
|
86
|
(41,589
|
)
|
(180
|
)
|
Agreement date
|
Amount drawn
|
Fees
|
Interest
|
Amount settled
|
Amounts forgiven
|
Maturity
|
Counterparty
|
|||||||||||||||
February 6, 2017
|
3,500
|
210
|
22
|
(3,500
|
)
|
-
|
May 15, 2017
|
Kalani
|
||||||||||||||
March 22, 2017
|
5,000
|
200
|
7
|
(5,000
|
)
|
-
|
October 7, 2017
|
Kalani
|
||||||||||||||
March 28, 2017
|
10,000
|
-
|
24
|
(10,000
|
)
|
-
|
August 25, 2017
|
Kalani
|
||||||||||||||
April 5, 2017
|
7,700
|
-
|
42
|
(7,700
|
)
|
-
|
September 4, 2017
|
Kalani
|
||||||||||||||
May 15, 2017
|
5,000
|
-
|
28
|
(3,882
|
)
|
(1,118
|
)
|
August 23, 2017
|
Xanthe
|
|||||||||||||
June 26, 2017
|
3,000
|
-
|
2
|
(3,000
|
)
|
-
|
October 24, 2017
|
Kalani
|
||||||||||||||
July 12, 2017
|
3,060
|
60
|
16
|
(3,060
|
)
|
-
|
November 7, 2017
|
Xanthe
|
||||||||||||||
September 15, 2017
|
2,020
|
20
|
6
|
(2,020
|
)
|
-
|
December 14, 2017
|
Xanthe
|
||||||||||||||
39,280
|
490
|
147
|
(38,162
|
)
|
(1,118
|
)
|
|
· |
Assignment to the bank of the newbuilding contract and of the respective refund guarantee of M/T Eco California;
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Pledge of the shares of the subsidiary owning the newbuilding contract;
|
|
a. |
the price per share issued upon an equity offering of the Company;
|
|
b. |
the exercise price of warrants or options for common shares;
|
|
c. |
the conversion price of any convertible security into common shares; or
|
|
d. |
the implied exchange price of the common shares pursuant to an asset to equity or liability to equity swap,
|
Years
|
||||
December 31, 2019
|
24,239
|
|||
December 31, 2020
|
9,650
|
|||
December 31, 2021
|
21,015
|
|||
December 31, 2022
|
29,077
|
|||
December 31, 2023
|
29,611
|
|||
December 31, 2024 and thereafter
|
38,756
|
|||
Total
|
152,348
|
|
10. |
Commitments and Contingencies:
|
|
11. |
Common and Preferred Stock, Additional Paid-In Capital and Dividends:
|
|
· |
Issuance of common shares:
if the Company issues, sells or is
deemed to have issued or sold any common shares for a consideration per share less than the exercise price of the 2014 Warrants then the latter shall be reduced to match the reduced consideration per share.
|
|
· |
Issuance of options or convertible securities:
if the Company
issues or sells any options at a strike price that is lower than the exercise price of the 2014 Warrants then the latter will be reduced to match the strike price of the options. If the Company issues convertibles that end up
converting at a price per share that is lower than the exercise price of the 2014 Warrants then the latter will be reduced to match the conversion price per share.
|
|
· |
Holder's right of alternative exercise price following issuance of certain
options or convertible securities:
if the Company issues or sells any options or convertible securities that are convertible into or exchangeable or exercisable for common shares at a price which varies or may vary
with the market price of the common shares (Variable Price), the warrant holder shall have the right, but not the obligation, to substitute the Variable Price for the exercise price of the 2014 Warrants.
|
|
· |
Other events:
if the Company takes any action that results in
the dilution of the warrant holder not covered by the abovementioned round down protection measures (including, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company
shall determine and implement an appropriate adjustment in the exercise price so as to protect the rights of the warrant holder.
|
|
12. |
Stock Incentive Plan:
|
Number of Non-vested Shares
|
Fair value of one common share
|
|||||||
As of December 31, 2016
|
0.675
|
405,000
|
||||||
Vested shares on June 30, 2017
|
0.125
|
252
|
||||||
As of December 31, 2017
|
0.55
|
2.50
|
||||||
Vested shares on June 30, 2018
|
0.125
|
0.95
|
||||||
As of December 31, 2018
|
0.425
|
0.82
|
|
13. |
Loss Per Common Share:
|
|
Year Ended December 31,
|
|||||||||||
|
2016
|
2017
|
2018
|
|||||||||
Income:
|
||||||||||||
Net loss attributable to common shareholders
|
(351
|
)
|
(13,404
|
)
|
(11,134
|
)
|
||||||
|
||||||||||||
Earnings per share:
|
||||||||||||
Weighted average common shares outstanding, basic and diluted
|
22
|
1,063,381
|
18,181,456
|
|||||||||
Loss per share, basic and diluted
|
(15,955
|
)
|
(12.57
|
)
|
(0.61
|
)
|
|
14. |
Voyage and Vessel Operating Expenses:
|
Voyage Expenses
|
Year Ended December 31,
|
|||||||||||
|
2016
|
2017
|
2018
|
|||||||||
Port charges / other voyage expenses
|
-
|
10
|
1
|
|||||||||
Bunkers
|
20
|
15
|
18
|
|||||||||
Commissions (including $358, $487 and $511 respectively, to related party)
|
716
|
974
|
1,001
|
|||||||||
Total
|
736
|
999
|
1,020
|
Vessel Operating Expenses
|
Year Ended December 31,
|
|||||||||||
|
2016
|
2017
|
2018
|
|||||||||
Crew wages and related costs
|
6,885
|
9,228
|
10,185
|
|||||||||
Insurance
|
542
|
777
|
761
|
|||||||||
Repairs and maintenance
(including
$104, $136 and
$187 respectively, to related party)
|
520
|
973
|
1,120
|
|||||||||
Spares and consumable stores
|
1,923
|
2,374
|
2,645
|
|||||||||
Registration and tonnage taxes (Note 16)
|
43
|
92
|
115
|
|||||||||
Total
|
9,913
|
13,444
|
14,826
|
|
15. |
Interest and Finance Costs:
|
Interest and Finance Costs
|
Year Ended December 31,
|
|||||||||||
|
2016
|
2017
|
2018
|
|||||||||
Interest on debt (including $302, $138 and $874, respectively, to related party) (Note 9)
|
3,208
|
5,724
|
7,373
|
|||||||||
Delos termination fee interest (Note 5)
|
3
|
-
|
-
|
|||||||||
Bank charges and loan commitment fees (including $207, $366 and $179, respectively, to related party)
|
262
|
440
|
262
|
|||||||||
Amortization and write-off of financing fees
|
291
|
1,640
|
1,305
|
|||||||||
Amortization of debt discount (Note 9)
|
-
|
7,500
|
2,504
|
|||||||||
Non-cash debt conversion expenses
|
-
|
842
|
-
|
|||||||||
Total
|
3,764
|
16,146
|
11,444
|
|||||||||
Less interest capitalized
|
(671
|
)
|
(353
|
)
|
(1,782
|
)
|
||||||
Total
|
3,093
|
15,793
|
9,662
|
|
16. |
Income Taxes:
|
|
17. |
Financial Instruments:
|
|
a) |
Interest rate risk:
The Company is subject to
market risks relating to changes in interest rates relating to debt outstanding under its bank loan facilities on which it pays interest based on LIBOR plus a margin. In order to manage part of its exposure to changes in interest
rates due to this floating rate indebtedness, the Company has entered into interest rate swap agreements (refer section below) and may enter into more interest rate swap agreements in the future.
|
|
b) |
Credit risk:
Financial instruments, which
potentially subject the Company to significant concentrations of credit risk, consist principally of interest rate swaps and cash. The Company places its temporary cash investments, consisting mostly of deposits, with high credit
qualified financial institutions. The Company performs periodic evaluations of the relative credit standing of those financial institutions with which it places its temporary cash investments.
|
|
c) |
Fair value:
|
Agreement Date
|
Counterparty
|
Effective date:
|
Termination Date:
|
Interest rate payable
|
June 3, 2016
|
ABN Amro Bank
|
April 13, 2018
|
Ju1y 13, 2021
|
1.4425%
|
December 19, 2016
|
ABN Amro Bank
|
December 21, 2016
|
January 13, 2022
|
2.0800%
|
December 19, 2016
|
ABN Amro Bank
|
December 21, 2016
|
August 10, 2022
|
2.1250%
|
March 29, 2017
|
NORD/LB Bank
|
May 17, 2017
|
May 17, 2023
|
2.1900%
|
March 29, 2018
|
Alpha Bank
|
March 29, 2018
|
February 25, 2025
|
2.9700%
|
2014 Warrants Outstanding
December 31, 2017
|
Warrant Shares Outstanding
December 31, 2017
|
Term
|
Warrant Exercise Price
|
Fair Value – Liability
December 31, 2017
|
1,976,389
|
2,134,501
|
5 years
|
$2.30
|
3,332
|
2014 Warrants Outstanding
December 31, 2018
|
Warrant Shares Outstanding
December 31, 2018
|
Term
|
Warrant Exercise Price*
|
Fair Value – Liability
December 31, 2018
|
1,976,389
|
8,498,474
|
5 years
|
$0.58
|
1,915
|
Fair Value Measurement at Reporting Date
|
||||||||||||||||||||
As of December 31, 2017
|
|
Total
|
Using Quoted Prices in
Active Markets for
Identical Assets
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Significant
Other
Unobservable
Inputs
(Level 3)
|
|||||||||||||||
Non-current asset
|
|
394
|
-
|
394
|
-
|
|||||||||||||||
Non-current liability
|
|
3,335
|
-
|
3
|
3,332
|
|||||||||||||||
As of December 31, 2018
|
|
|||||||||||||||||||
Non-current asset
|
1,153
|
-
|
1,153
|
-
|
||||||||||||||||
Non-current liability
|
2,274
|
-
|
359
|
1,915
|
Closing balance – December 31, 2016
|
3,222
|
|||
Change in fair value of 2014 Warrants, included in the consolidated statements of comprehensive loss
|
256
|
|||
Adjustment for cashless exercise of 2014 Warrants, included in Additional paid-in capital line item of consolidated balance
sheets
|
(146
|
)
|
||
Closing balance – December 31, 2017
|
3,332
|
|||
Change in fair value of 2014 Warrants, included in (Loss)/gain on derivative financial instruments in the consolidated
statements of comprehensive loss
|
(1,417
|
)
|
||
Closing balance – December 31, 2018
|
1,915
|
Amount of gain/(loss) recognized in Statement of comprehensive (loss)/gain located in Loss on derivate financial instruments
|
||||||||||||
2016
|
2017
|
2018
|
||||||||||
Interest rate swaps- change in fair value
|
(41
|
)
|
431
|
404
|
||||||||
Interest rate swaps– realized gain/(loss)
|
(16
|
)
|
(476
|
)
|
-
|
|||||||
2014 Warrants- change in fair value
|
(641
|
)
|
(256
|
)
|
1,417
|
|||||||
Total
|
(698
|
)
|
(301
|
)
|
1,821
|
|
18. |
Other operating income
|
|
19. |
Mezzanine Equity
|
Series B convertible preferred stock
|
Total
|
|||
BALANCE, December 31, 2015
|
-
|
|||
Net Proceeds from Issuance of Series B convertible preferred stock
|
1,741
|
|||
Deemed dividend for beneficial conversion feature
|
1,403
|
|||
Beneficial conversion feature
|
(1,403
|
)
|
||
Balance December 31, 2016
|
1,741
|
|||
Conversions of Series B convertible preferred stock
|
(1,741
|
)
|
||
Balance December 31, 2017
|
-
|
|
20. |
Investments in unconsolidated joint ventures
|
|
December 31, 2017
|
December 31, 2018
|
||||||||||||||
City of Athens
|
Eco Nine
|
City of Athens
|
Eco Nine
|
|||||||||||||
Current assets
|
218
|
218
|
898
|
684
|
||||||||||||
Non-current assets
|
12,664
|
12,664
|
30,853
|
30,975
|
||||||||||||
Current liabilities
|
68
|
68
|
1,530
|
1,762
|
||||||||||||
Long-term liabilities
|
-
|
-
|
15,627
|
15,900
|
||||||||||||
Net operating revenues
|
-
|
-
|
4,182
|
3,229
|
||||||||||||
Net (loss)/gain
|
(20
|
)
|
(20
|
)
|
396
|
185
|
|
21. |
Subsequent Events
|
|
· |
Corporate guarantee of Top Ships Inc.;
|
|
· |
Second priority perfected mortgage on M/T Eco Palm Desert Vessel;
|
|
· |
Second rank priority assignment of insurance and earnings of the mortgaged vessel;
|
|
· |
Second rank priority assignment of any time charters with duration of more than 12 months;
|
|
· |
Second priority pledge of the shares of the shipowning subsidiary of the mortgaged vessel;
|
|
· |
Second priority pledge over the earnings account of the vessel.
|
MONTE CARLO SEVEN SHIPPING COMPANY
LIMITED
Trus Company Complex Ajeltake Road 96960 Majuro Marshall Islands |
March 29, 2017
|
OTC Confirmations
Phone: +49-511-361-5246
Fax: +49-511-361-4429
Person responsible
: Tobias Thies
|
Your Trader
Trade Date
Effective Date
Termination Date
Notional Amount
Fixed Rate Payer
Fixed Rate
Floating Rate Payer
Floating Rate
+/- Spread
Payments to
MONTE CARLO SEVEN SHIPPING COMPANY LIMITED
- in USD
Payments to
NORDDEUTSCHE LANDESBANK GIROZENTRALE
- in USD
|
:
:
:
:
:
:
:
:
:
:
:
:
|
TSIRIKOS
March 29, 2017
(time of trade : 09:38 am Hannover time)
May 17, 2017
May 17, 2023
USD 21,139,200.00
MONTE CARLO SEVEN SHIPPING COMPANY LIMITED
2.19000 %
NORDDEUTSCHE LANDESBANK GIROZENTRALE
3-Month(s)-USD-LIBOR-BBA
none
PLEASE ADVISE
JP MORGAN CHASE BANK, NEW YORK
A/C 0011337268
SWIFT CHASUS33
|
MONTE CARLO SEVEN SHIPPING COMPANY LIMITED
Vassilissis Sofias Street 1
15124 Maroussi-Athens
Greece
|
OTC Confirmations
Tobias Thies
Georgsplatz 1
D-30159 Hannover
Germany
Phone: +49-511-361-5246
Fax: +49-511-361-4429
|
Attention: atsirikos@topships.org
|
Our Reference:
IRD/IRS/9439572/HAN
UTI: E02DSNHHQ2B9X5N60OUJ12361RDIRS9397337HAN
Your Reference:
March 29, 2017
|
Trade Date :
Effective Date :
|
March 29, 2017
(time of trade : 09:38 am Hannover time)
May 17, 2017
|
Termination Date :
|
May 17, 2023 , subject to adjustment in
accordance with the Modified Following
Business Day Convention.
|
||
FIXED AMOUNTS
|
|||
Fixed Rate Payer :
|
MONTE CARLO SEVEN SHIPPING COMPANY
LIMITED
|
||
Fixed Rate Payer Notional Amount :
|
USD 21,139,200.00, subject to change as set
forth under "Fixed Rate Payer Payment Dates".
|
||
Fixed Rate :
|
2.190000 %
|
||
Fixed Rate Day Count Fraction :
|
ACT/360
|
||
Fixed Rate Payer Payment Dates :
|
Fixed Rate Payer Payment Dates are subject to
adjustment in accordance with the following
convention:
|
Modified Following Business Day
|
Payment Date
|
Change in Calculation Amount in USD
|
|||
August 17, 2017
|
-511,450.00
|
|||
November 17, 2017
|
-511,450.00
|
|||
February 17, 2018
|
-511,450.00
|
|||
May 17, 2018
|
-511,450.00
|
|||
August 17, 2018
|
-511,450.00
|
|||
November 17, 2018
|
-511,450.00
|
|||
February 17, 2019
|
-511,450.00
|
|||
May 17, 2019
|
-511,450.00
|
|||
August 17, 2019
|
-473,000.00
|
|||
November 17, 2019
|
-473,000.00
|
|||
February 17, 2020
|
-473,000.00
|
|||
May 17, 2020
|
-473,000.00
|
|||
August 17, 2020
|
-473,000.00
|
|||
November 17, 2020
|
-473,000.00
|
|||
February 17, 2021
|
-473,000.00
|
|||
May 17, 2021
|
-473,000.00
|
|||
August 17, 2021
|
-473,000.00
|
|||
November 17, 2021
|
-473,000.00
|
|||
February 17, 2022
|
-473,000.00
|
May 17, 2022
|
-473,000.00
|
|||
August 17, 2022
|
-473,000.00
|
|||
November 17, 2022
|
-473,000.00
|
|||
February 17, 2023
|
-473,000.00
|
|||
May 17, 2023
|
----
|
Business Days :
|
Athens, Frankfurt, Hannover, London, New York
|
||
FLOATING AMOUNTS
|
|||
Floating Rate Payer :
|
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
||
Floating Rate Payer Notional Amount :
|
USD 21,139,200.00, subject to change as set
forth under "Floating Rate Payer Payment
Dates".
|
||
Floating Rate Option :
|
USD-LIBOR-BBA
|
||
Designated Maturity :
|
3 month(s)
|
||
Spread :
|
None
|
||
Floating Rate Day Count Fraction :
|
ACT/360
|
||
1st Floating Period :
|
May 17, 2017 - August 17, 2017 ( 92 days)
|
||
1st Floating Rate :
|
Next fixing date on May 15, 2017.
|
||
1st Floating Rate Interest Amount :
|
Next fixing date on May 15, 2017.
|
||
Reset Dates :
|
The first day of each Calculation Period.
|
||
Floating Rate Payer Payment Dates :
|
Floating Rate Payer Payment Dates are subject
to adjustment in accordance with the following
convention:
|
Modified Following Business Day
|
Payment Date
|
Change in Calculation Amount in USD
|
|||
August 17, 2017
|
-511,450.00
|
|||
November 17, 2017
|
-511,450.00
|
|||
February 17, 2018
|
-511,450.00
|
|||
May 17, 2018
|
-511,450.00
|
/s/ Grünewald
|
/s/ Thies
|
||
Grünewald
|
Thies
|
/s/ Alexandros Tsirikos
|
|||
ALEXANDROS TSIRIKOS
|
|||
ATTORNEY-IN-FACT
|
Trade Date:
|
29 March 2018
|
|
Effective Date:
|
29 March 2018
|
|
Termination Date:
|
25 February 2025
|
|
Notional Amount:
|
USD 21.900.000,00 variable according to the Amortization Schedule below
|
Fixed Rate Payer:
|
Party B
|
|
Fixed Rate:
|
2,97%
|
|
Fixed Rate Payer
|
||
Payment Dates:
|
Each quarter, on 25 February, 25 May, 25 August and 25 December of each year (according to the Amortization Schedule below) from and
including Start Date, to and excluding End Date, subject to adjustment in accordance with the Modified Following Business Day Convention
|
|
Initial Calculation Period:
|
From and including 29 March 2018 to and excluding 25 May 2018
|
Floating Rate Payer:
|
Party A
|
|
Floating Rate:
|
3month USD Libor
|
|
Floating Rate Payer
|
||
Payment Dates:
|
Each quarter, on 25 February, 25 May, 25 August and 25 December of each year (according to the Amortization Schedule below) from and
including Start Date, to and excluding End Date, subject to adjustment in accordance with the Modified Following Business Day Convention
|
|
Initial Calculation Period:
|
From and including 29 March 2018 to and excluding 25 May 2018
|
|
Floating Rate for the Initial
|
||
Calculation Period:
|
1,987360%
|
|
Day Count Fraction:
|
Actual/360, adjusted
|
|
Reset Date:
|
Two business days prior to the start of the relevant period
|
|
Business Days:
|
New York, London, Athens
|
|
Calculation Agent:
|
Party A
|
Start Date
|
End Date
|
Notional Amount
|
29/3/2018
|
25/5/2018
|
21.900.000,00
|
25/5/2018
|
27/8/2018
|
21.500.000,00
|
27/8/2018
|
26/11/2018
|
21.100.000,00
|
26/11/2018
|
25/2/2019
|
20.700.000,00
|
25/2/2019
|
28/5/2019
|
20.300.000,00
|
28/5/2019
|
26/8/2019
|
19.900.000,00
|
26/8/2019
|
25/11/2019
|
19.500.000,00
|
25/11/2019
|
25/2/2020
|
19.100.000,00
|
25/2/2020
|
26/5/2020
|
18.700.000,00
|
26/5/2020
|
25/8/2020
|
18.397.500,00
|
25/8/2020
|
25/11/2020
|
18.095.000,00
|
25/11/2020
|
25/2/2021
|
17.792.500,00
|
25/2/2021
|
25/5/2021
|
17.490.000,00
|
25/5/2021
|
25/8/2021
|
17.187.500,00
|
25/8/2021
|
26/11/2021
|
16.885.000,00
|
26/11/2021
|
25/2/2022
|
16.582.500,00
|
25/2/2022
|
25/5/2022
|
16.280.000,00
|
25/5/2022
|
25/8/2022
|
15.977.500,00
|
25/8/2022
|
25/11/2022
|
15.675.000,00
|
25/11/2022
|
28/2/2023
|
15.372.500,00
|
28/2/2023
|
25/5/2023
|
15.070.000,00
|
25/5/2023
|
25/8/2023
|
14.767.500,00
|
25/8/2023
|
27/11/2023
|
14.465.000,00
|
27/11/2023
|
26/2/2024
|
14.162.500,00
|
26/2/2024
|
28/5/2024
|
13.860.000,00
|
28/5/2024
|
26/8/2024
|
13.557.500,00
|
26/8/2024
|
25/11/2024
|
13.255.000,00
|
25/11/2024
|
25/2/2025
|
12.952.500,00
|
For investment services and/or ancillary services
|
€ 0
|
Payments charged by third parities
|
€ 0
|
For Financial Instruments
|
0,30% (which has been embedded in the Fixed Rate 2,97%, details as per Paragraph 2 “Fixed
Amounts”)
|
Total
The analysis of the amount consisting of costs and
charges shall be available upon relevant request.
|
Account(s) for
|
|||
Payments to Party A :
|
GR83 0140 9600 9600 1500 6028 626
|
||
Account(s) for
|
|||
Payments to Party B :
|
GR83 0140 9600 9600 1500 6028 626
|
(a) |
Non-Reliance
. It is acting for its own account, and it
has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper based upon its own judgement and upon advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction: it being understood that information and explanations related to the terms and conditions of
the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the
expected results of the Transaction.
|
(b) |
Assessment and Understanding
. It is capable of
assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction. It is also capable of assuming, and assumes, the
risks of the Transaction.
|
(c) |
Status of Parties
. The other party is not acting as a
fiduciary for or an adviser to it in respect of the Transaction.
|
(d) |
Purpose
. It is entering into the Transaction for the
purposes of hedging its assets or liabilities or in connection with a line of business
|
Yours sincerely,
ALPHA BANK A.E.
|
By:
|
||||
Name:
|
||||
Title:
|
By:
|
||||
Name:
|
||||
Title:
|
|
|
|
|
|
|
CLAUSE
|
HEADINGS
|
PAGE
|
||
1
|
PURPOSE, DEFINITIONS AND INTERPRETATION
|
1
|
||
2
|
THE ADVANCES
|
22
|
||
3
|
INTEREST AND INTEREST PERIODS
|
25
|
||
4
|
REPAYMENT AND PREPAYMENT
|
28
|
||
5
|
FEES, EXPENSES, VAT, STAMP DUTY ETC
|
32
|
||
6
|
PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
|
34
|
||
7
|
REPRESENTATIONS AND WARRANTIES
|
36
|
||
S
|
UNDERTAKINGS
|
43
|
||
9
|
CONDITIONS
|
52
|
||
10
|
EVENTS OF DEFAULT
|
53
|
||
11
|
INDEMNITIES
|
59
|
||
12
|
UNLAWFULNESS, INCREASED COST AND BAIL-IN
|
64
|
||
13
|
SECURITY, APPLICATION AND SET-OFF
|
67
|
||
14
|
EARNINGS ACCOUNT
|
69
|
||
15
|
ASSIGNMENT, TRANSFER, PARTICIPATION, LENDING OFFICE
|
69 | ||
16
|
MISCELLANEOUS
|
72
|
||
17
|
COMMUNICATIONS
|
75
|
||
18
|
GOVERNING LAW AND JURISDICTION
|
76
|
(1) |
ALPHA BANK A.E.
, a banking sociét
é
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, as lender (hereinafter called the "
Lender
", which expression shall include its successors in title, Assignees and Transferees); and
|
(2) |
PCH DREAMING INC.
, a company duly incorporated in the
Republic of the Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960, as borrower (hereinafter called the "
Borrower
" which expression shall include its successors)
|
1. |
PURPOSE, DEFINITIONS AND INTERPRETATION
|
1.1 |
Amount and Purpose
|
|
(a) |
an Advance in the amount of up to Dollars One million six hundred ninety thousand ($1,690,000) to be made available to the Borrower subject to receipt of the
original Refund Guarantee by the Lender, in payment of the
third
instalment of the Contract Price due in July, 2018;
|
|
(b) |
an Advance in the amount of up to Dollars One million six hundred ninety thousand ($1,690,000) to be made available to the Borrower in payment of the
fourth
instalment of the Contract Price due in October, 2018;
|
|
(c) |
an Advance in the amount of up to Dollars Three million three hundred eighty thousand ($3,380,000) to be made available to the Borrower in payment of the
fifth
and
sixth
instalments of the Contract Price, both due
in January, 2019; and
|
|
(d) |
an Advance in the amount of up to Dollars Three million three hundred eighty thousand ($3,380,000) to be made available to the Borrower in payment of the
seventh
instalment of the Contract Price due in February, 2019.
|
1.2 |
Definitions
|
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the
recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
|
(b) |
in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers
contained in that law or regulation;
|
|
(a) |
the 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;
|
|
(a) |
all losses, liabilities, costs, charges, expenses, damages and outgoings of whatever nature, (including, without limitation, Taxes, repair costs, registration
fees and insurance premiums, crew wages, repatriation expenses and seamen's pension fund dues) suffered, incurred, charged to or paid by the Lender in connection with the exercise of the powers referred to in or granted by any of the
Finance Documents or otherwise payable by the Borrower in accordance with the terms of any of the Finance Documents;
|
|
(b) |
the expenses referred to in Clause 5.2 (
Expenses
);
and
|
|
(c) |
interest on all such losses, liabilities, costs, charges, expenses, damages and outgoings from the date on which the same were suffered, incurred or paid by the
Lender until the date of receipt or recovery thereof (whether before or after judgement) at the rate referred to in Clause 3.4 (
Default
interest
) (as
|
|
(a) |
sections 1471 to 1474 of the US Internal Revenue Code of 1986 (the "
Code
") or any associated regulations or other associated official guidance;
|
|
(b) |
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any
other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
|
(c) |
any agreement pursuant to the implementation of 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 January 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 2015; 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 2017,
|
|
(a) |
for principal, interest or any other sum payable in respect of any moneys
borrowed or raised by the debtor
;
|
(b) |
under any loan stock, bond, note or other security issued by the debtor;
|
|
(c) |
under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
|
|
(d) |
under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by
the debtor;
|
|
(e) |
under any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction
is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or
|
|
(f) |
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within (a) to (e) if
the references to the debtor referred to the other person;
|
|
(a) |
"
The International Management Code for the Safe Operation of
Ships and for Pollution Prevention
", currently known or referred to as the "ISM Code", adopted by the Assembly of the International Maritime Organisation by Resolution A. 741(18) on 4
th
November, 1993 and incorporated
on 19
th
May, 1994 into chapter IX of the International Convention for the Safety of Life at Sea 1974 (SOLAS 1974); and
|
|
(b) |
all further resolutions, circulars, codes, guidelines, regulations and recommendations which are now or in the future issued by or on behalf of the
International Maritime Organisation or any other entity with responsibility for implementing the ISM Code, including without limitation, the "
Guidelines
on implementation or administering of the International Safety Management (ISM) Code by Administrations
" produced by the International Maritime Organisation pursuant to Resolution A. 788(19) adopted on 25
th
November,
1995;
|
|
(a) |
the DOC and SMC issued by the Classification Society in all respects acceptable to the Lender in its absolute discretion pursuant to the ISM Code in relation to
the Collateral Vessel within the period specified by the ISM Code;
|
|
(b) |
all other documents and data which are relevant to the ISM SMS and its implementation and verification which the Lender may require by request; and
|
|
(c) |
any other documents which are prepared or which are otherwise relevant to establish and maintain the Collateral Vessel's or the Collateral Owner's compliance
with the ISM Code which the Lender may require by request;
|
|
(a) |
the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate)
equal to the offered quotation for deposits in Dollars for a period equal, or as near as possible equal to, the relevant Interest Period which appears on Thomson Reuters Page LIBOR 01 or Thomson Reuters Page LIBOR 02 (the "
Pages
") at or about 11.00 a.m. (London time) on the Quotation Day for that Interest Period (and, for the purposes of this Agreement, "
Reuters Page LIBOR 01
" and "
Reuters Page LIBOR 02
" mean, respectively, the displays designated as the "Thomson Reuters Page LIBOR 01" and "Thomson Reuters Page
LIBOR 02" on the Reuters Money News Service or such other page as may replace the Pages on that service for the purpose of displaying rates comparable to that rate or on such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British Bankers' Association Interest Settlement Rates for Dollars) (the "
Screen Rate
"); or
|
|
(b) |
if:
|
|
(A) |
no rate is quoted on the Pages; or
|
|
(B) |
no adequate and fair means exist for ascertaining the interest rate for a selected Interest Period; or
|
|
(C) |
the cost of obtaining matching deposits in the London interbank market would be in excess of the Screen Rate,
|
|
(a) |
the government of the United States of America;
|
|
(b) |
the United Nations;
|
|
(c) |
the European Union (or the governments of any of its member states);
|
|
(d) |
the United Kingdom; or
|
|
(e) |
the respective governmental institutions and agencies of any of the foregoing including the Office of Foreign Assets Control of the U.S. Department of the
|
|
(a) |
that is, or is directly or indirectly, owned or controlled (as such terms are defined by the relevant Sanctions Authority) by, or acting on behalf of, one or
more persons or entities on any list (each as amended, supplemented or substituted from time to time) of restricted entities, persons or organisations (or equivalent) published by a Sanctions Authority;
|
|
(b) |
that is located or resident in or incorporated under the laws of, or owned or controlled by, a person located or resident in or incorporated under the laws of a
Sanctions Restricted Jurisdiction; or
|
|
(c) |
that is otherwise the target or subject of Sanctions;
|
|
(a) |
this Agreement;
|
|
(b) |
the Top Ships Corporate Guarantee;
|
|
(c) |
the Pre-Delivery Security Documents;
|
|
(d) |
the Collateral Security Documents; and
|
|
(e) |
any document or documents (including if the context so requires this Agreement) as may have been or shall from time to time after the date of this Agreement be
executed to guarantee and/or secure all or any part of the Outstanding Indebtedness as well as for the performance by the Security Parties of all their respective obligations covenants and agreements pursuant to this Agreement and/or the
other Security Documents (whether or not any such document also secures moneys from time to time owing pursuant to any other document or agreement), each such Security Document to be in form and substance as the Lender may approve or
require, as the same may from time to time be amended and/or supplemented;
|
|
(a) |
actual, constructive, compromised or arranged total loss of the Collateral Vessel; or
|
|
(b) |
the Compulsory Acquisition of the Collateral Vessel; or
|
|
(c) |
the condemnation, capture, seizure, confiscation, arrest or detention of the Collateral Vessel (other than where the same amounts to the Compulsory Acquisition
of the Collateral Vessel) by any Government Entity, or by persons acting on behalf of any Government Entity or otherwise which deprives the Collateral Owner of the use of the Collateral Vessel for more than thirty (30) days, unless the
Collateral Vessel is released and restored to the Collateral Owner from such condemnation, capture, seizure, confiscation arrest or detention or within thirty (30) days after the occurrence thereof; and
|
|
(d) |
the hijacking, capture, seizure or confiscation of the Collateral Vessel arising as a result of a piracy or related incident unless the Collateral Vessel is
released and restored to the Collateral Owner from such hijacking, capture, seizure or confiscation within one hundred fifty (150) days after the occurrence thereof;
|
|
(a) |
the Borrower, if it is resident for tax purposes in the United States of America; or
|
|
(b) |
a Security Party some or all of whose payments under the Finance Documents are from sources within the United States for US Federal income tax purposes;
|
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that
Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial
institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert
all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any
obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
1.3 |
Interpretation
. In this Agreement:
|
|
(a) |
"
asset
" includes every kind of
property, asset, interest or right, including any present, future or contingent right to any revenues or other payment;
|
|
(b) |
"
company
" includes any partnership,
joint venture and unincorporated association;
|
|
(c) |
"
consent
" includes an authorisation,
consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation;
|
|
(d) |
"
control
" means either ownership of
more than fifty percent (50%) of the voting share capital (or equivalent rights of ownership) of such company or entity or the power to direct its policies and management, whether by contract or otherwise and "
controlled
" shall be construed accordingly;
|
|
(e) |
"
contingent liability
" means a
liability which is not certain to arise and/or the amount of which remains unascertained;
|
|
(f) |
"
document
" includes a deed; also a
letter or fax;
|
|
(g) |
"
legal or administrative
action
" means any legal proceeding or arbitration and any administrative or regulatory action or investigation;
|
|
(h) |
"
liability
" includes every kind of
debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise;
|
|
(i) |
"
law
" includes any order or decree,
any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
|
(j) |
"
policy
", in relation to any
insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms;
|
|
(k) |
"
protection and indemnity risks
"
means the usual risks covered by a protection and indemnity association which is a member of the international group of protection and indemnity associations ("
IG
"), including
pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation in them of clause 8 of the
Institute Time Clauses (Hulls)(1/11/1995) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision;
|
|
(l) |
"
successor in title
" includes any
person who is entitled (by assignment, novation, merger or otherwise) to any other person's rights under this Agreement or any other Security Document (or any interest in those rights) or who, as administrator, liquidator or otherwise, is
entitled to exercise those rights; and in particular references to a successor in title include a person to
|
|
(m) |
"
War risks
" includes the risk of
mines, blocking and trapping, missing vessel, confiscation, war P&I and all risks excluded by clause 24 of the Institute Time Clauses (Hulls) (1/11/95);
|
|
(n) |
reference to:
|
|
(i) |
any "
enactment
" shall be deemed to
include references to such enactment as re-enacted, amended or extended;
|
|
(ii) |
a "
person
" shall be construed as
including reference to an individual, firm, company, corporation, unincorporated body of persons or any State, political sub-division of a state and local or municipal authority, any agency of such State and any international organisation
and any person includes such person's assignees and successors in title;
|
|
(iii) |
a "
regulation
" includes any present
or future regulation, rule, directive, requirement, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or national or supranational body, agency, department, central bank or government
department or any regulatory, self regulatory or other authority or organisation and, for the avoidance of doubt, shall include any Basel II Regulation and Basel III Regulation;
|
|
(iv) |
a "
guarantee
" includes references to
an indemnity or other assurance against financial loss including, without limitation, an obligation to purchase assets or services as a consequence of a default by any other person to pay any Financial Indebtedness and "
guaranteed
" shall be construed accordingly;
|
|
(v) |
this Agreement (or to any specified provisions thereof) and all documents referred to in this Agreement (or to any specified provisions thereof) shall be
construed as references to this Agreement, that provision or that document as are in force for the time being and as are amended and/or supplemented from time to time;
|
|
(vi) |
this Agreement includes all the terms of this Agreement and any schedules, annexes or appendices to this Agreement, which form an integral part of same;
|
|
(vii) |
clauses, sub-clauses and schedules are to Clauses, Sub-Clauses and schedules in this Agreement;
|
|
(viii) |
the opinion of the Lender or a determination or acceptance by the Lender or to documents, acts, or persons acceptable or satisfactory to the Lender or the like
shall be construed as reference to opinion,
|
|
(o) |
Clause headings and the table of contents are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement;
|
|
(p) |
subject to any specific provision of this Agreement or of any assignment and/or participation or syndication agreement of any nature whatsoever, reference to
each of the parties hereto and to the other Security Documents shall be deemed to be reference to and/or to include, as appropriate, their respective successors and permitted assigns;
|
|
(q) |
where the context so admits, words in the singular include the plural and vice versa; and
|
|
(r) |
the words "
including
" and "
in particular
" shall not be construed as limiting the generality of any foregoing words.
|
1.4 |
Same meaning
|
1.5 |
Inconsistency
|
1.5 |
Finance Documents
|
2. |
THE ADVANCES
|
2.1 |
Commitment to lend
|
2.2 |
Drawdown
|
2.3 |
Drawdown Notice irrevocable
|
2.4 |
Number of Advances Agreed
|
2.5 |
Amount, timing, limitation and purpose of the Commitment
|
|
(a) |
The Advances
: The Commitment will be advanced to the Borrower by
four (4) Advances to be used for the purpose of financing part of the third, fourth, fifth, sixth and seventh instalments of the Newbuilding Vessel under the Contract,
provided, however, that
the aggregate amount of such Advances shall not exceed $10,140,000 and each such Advance shall be made when the relevant instalment(s) under the Contract has/have become due and payable.
|
|
(b) |
Drawdown of the Advances
: No Advance may be drawn down after the
last day of the Drawdown Period.
|
|
(c) |
Application of Advances
: The Borrower shall procure that the
proceeds of the each of the Advances shall be applied wholly in or towards payment to the Builder of the corresponding installment(s) under the Contract.
|
|
(d) |
Conditions precedent
: Drawdown of each Advance is subject to
(i) fulfilment to the Lender's satisfaction of all of the relevant conditions precedent and (ii) no Event of Default having occurred. Thus, in relation to drawdown of any Advance, if any such condition precedent has not been fulfilled to
the Lender's satisfaction or any such Event of Default has occurred such Advance shall not be available for drawing. Notwithstanding, the Lender may, in its absolute discretion and by notice to the Borrower, waive compliance with any
condition precedent or the occurrence of an Event of Default prior to disbursement,
provided, always, that
the Borrower hereby covenants in those
|
2.6 |
Availability
|
2.7 |
Termination of Commitment
|
2.8 |
No responsibility for application of proceeds
|
2.9 |
Evidence
|
2.10 |
Cancellation
|
3. |
INTEREST AND INTEREST PERIODS
|
3.1 |
Normal interest rate
|
3.2 |
Selection of Interest Periods
|
3.3 |
Determination of Interest Periods
|
|
(a) |
the first Interest Period shall commence on the Drawdown Date of the first Advance and each subsequent Interest Period in respect thereof shall commence on the
last day of the previous Interest Period;
|
|
(b) |
the initial Interest Period in respect of each Advance after the first Advance shall end on the same day as the then current Interest Period for the previous
Advance and, on the last day of such Interest Period, such Advances shall be consolidated into, and shall thereafter constitute the Loan; and
|
|
(c) |
if the Borrower fails to specify the duration of an Interest Period in accordance with the provisions of Clause 3.2 (
Selection of Interest Periods
) and this Clause 3.3 such Interest Period shall have duration of three (3) months or such other period as shall comply with this Clause
3.3.
|
3.4 |
Default interest
|
|
(a) |
Default Interest
: If the Borrower fails to pay any sum (including,
without limitation, any sum payable pursuant to this Clause 3.4) on its due date for payment under any of the Finance Documents, the Borrower shall pay interest on such sum on demand from the due date up to the date of actual payment (as
well after as before judgment) at a rate determined by the Lender pursuant to this Clause 3.4. The period beginning on such due date and ending on the date of actual payment shall be divided at the discretion of the Lender into
successive periods of not more than three (3) months as selected by the Lender each of which (other than the first, which shall commence on such due date) shall commence on the last day of the preceding such period. The rate of interest
applicable to each such period shall be the aggregate (as determined by the Lender) of (a) two per cent (2%) per annum, (b) the Margin, and (c) LIBOR for such period. Such interest shall be due and payable on the last day of each such
period as determined by the Lender and each such day shall, for the purposes of this Agreement, be treated as an Interest Payment Date,
provided that
if such unpaid sum is an amount of principal which became due and payable, by reason of a declaration by the Lender under Clause 10.2 (
Consequences
of Default - Acceleration
) or a prepayment pursuant to Clauses 4.2 (
Voluntary prepayment
), 4.3 (
Compulsory Prepayment in case of Total Loss or sale of the Collateral Vessel
) or 12 (
Unlawfulness and increased cost
), on a date other than an Interest Payment Date relating thereto, the first such period selected by the Lender shall be of a duration
equal to the period between the due date of such principal sum and the next succeeding Interest Payment Date and interest shall be payable on such principal sum during such period at a rate of two per cent (2%) above the rate applicable
thereto immediately before it shall have become so due and payable. If, for the reasons specified in Clause 3.6 (
Market disruption;
non-availability
), the Lender is unable to determine a rate in accordance with the foregoing provisions of this Clause 3.4, interest on any sum not paid on its due date for payment shall be calculated at a rate determined
by the Lender to be two per cent (2%) per annum above the aggregate of (i) the Margin and (ii) the Alternative Rate.
|
|
(b) |
Compounding of default interest
: Any such interest which is not paid
at the end of the period by reference to which it was determined shall thereupon be compounded.
|
3.5 |
Notification of Interest Periods and interest rate
|
3.6 |
Market disruption; non-availability
|
|
(a) |
Market disruption
: If and whenever, at any time prior to the
commencement of any Interest Period, the Lender (in its reasonable discretion) shall have determined (which determination shall be conclusive) that a Market Disruption Event has occurred in relation to the Loan (or the relevant part
thereof) for any such Interest Period, then the Lender shall forthwith give notice thereof (a "
Determination Notice
") to the Borrower and the rate of interest on the Loan (or the
relevant part thereof) for that Interest Period shall be the percentage rate per annum which is the sum of:
|
|
(i) |
the Margin; and
|
|
(ii) |
the rate which expresses as a percentage rate per annum the cost to the Lender of funding the Loan (or the relevant part thereof) from whatever source it may
reasonably select.
|
|
(b) |
Suspension of drawdown
: If the Determination Notice is given before
the Commitment (or a part thereof) is advanced, the Lender's obligation to make the Commitment (or a part thereof) available shall be suspended while the circumstances referred to in the Determination notice continue.
|
|
(c) |
Meaning of "Market Disruption Event"
: In this Agreement "
Market Disruption Event
" means:
|
|
(i) |
at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available; and/or
|
|
(ii) |
before close of business in London on the Quotation Day for the relevant Interest Period, the Lender determines (in its sole discretion) that the cost to it of
obtaining matching deposits in the London Interbank Market to fund the Loan (or the relevant part thereof) for such Interest Period would be in excess of the LIBOR for such Interest Period; and/or
|
|
(iii) |
before close of business in London on the Quotation Day for the relevant Interest Period, deposits in Dollars are not available to the Lender in the London
Interbank Market in the ordinary course of business in sufficient amounts to fund the Loan (or the relevant part thereof) for such Interest Period.
|
|
(d) |
Negotiation of alternative rate of interest
: If the Determination
Notice is served after the Loan is borrowed, the Borrower and the Lender shall enter into negotiations (for a period of not more than within 15 days after the date on which the Lender serves the Determination Notice (the "
Negotiation Period
") and shall use reasonable endeavours to agree, an alternative interest rate or (as the case may be) an alternative basis for the Lender to fund or continue to
fund the Loan during the Interest Period concerned. During the
|
|
(e) |
Application of agreed alternative rate of interest
: Any alternative
interest rate or an alternative basis which is agreed during the Negotiation Period shall be binding on the Lender and all Security Parties and shall take effect in accordance with the terms agreed.
|
|
(f) |
Alternative basis of interest in absence of agreement
: If the Lender
and the Borrower will not enter into negotiations as provided in Clause 3.6(d) (
Negotiation of alternative rate of interest
) or if an alternative interest rate or alternative basis is not
agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the Lender shall set the following Interest Period and an interest rate representing the cost of funding of the
Lender in Dollars of the Loan (or the relevant part thereof) plus the Margin for such Interest Period; if the relevant circumstances are continuing at the end of the Interest Period so set by the Lender, the Lender shall continue to set
the following Interest Period and an interest rate representing its cost of funding in Dollars of the Loan (or the relevant part thereof) plus the Margin for such Interest Period.
|
|
(g) |
Notice of prepayment
: If the Borrower does not agree with an interest
rate set by the Lender under Clause 3.6(e) (
Notice of prepayment
), the Borrower may give the Lender not less than 5 Banking
Days' notice of its intention to prepay the Loan at the end of the interest period set by the Lender.
|
|
(h) |
Prepayment; termination of Commitment
: A notice under Clause 3.6(f)
(
Alternative basis of interest or funding
) shall be irrevocable; and on the last Banking Day of the interest period set by the
Lender the Borrower shall prepay (without premium or penalty) the Loan, together with accrued interest thereon at the applicable rate plus the Margin and the balance of the Outstanding Indebtedness.
|
|
(i) |
Application of prepayment
: The provisions of Clause 4 (
Repayment-Prepayment
) shall apply in relation to the prepayment made hereunder.
|
4. |
REPAYMENT AND PREPAYMENT
|
4.1 |
Repayment
|
4.2 |
Voluntary prepayment
|
|
(a) |
the Lender shall have received from the Borrower not less than five (5) Banking Days' prior notice (which shall be irrevocable) of its intention to make such
prepayment and specify the amount and the date on which such prepayment is to be made;
|
|
(b) |
such prepayment may take place on any Banking Day
provided, however
,
that if the Borrower shall request consent to make such prepayment on a day other than the last day of the Interest Period relating to the relevant part of the Loan to be prepaid or the whole of the Loan (as the case may be) the Borrower
will pay in addition to the amount to be prepaid, any such sum as may be payable to the Lender pursuant to Clause 11.1 (
Miscellaneous
indemnities
);
|
|
(c) |
each such prepayment shall be equal to the amount of $500,000 or a whole multiple thereof or the balance of the Loan;
|
|
(d) |
every notice of prepayment shall be effective only on actual receipt by the Lender, shall be irrevocable and shall oblige the Borrower to make such prepayment
on the date specified;
|
|
(e) |
no amount prepaid may be re-borrowed; and
|
|
(f) |
the Borrower may not prepay the Loan or any part thereof save as expressly provided in this Agreement.
|
4.3 |
Compulsory Prepayment on Total Loss or sale of the Collateral Vessel
|
|
(a) |
Before drawdown
: On the Collateral Vessel becoming a Total Loss or
suffering damage or being involved in an incident which in the reasonable opinion of the Lender may result in the Collateral Vessel being subsequently determined to be a Total Loss or being sold before an Advance is drawn down, the
obligation of the Lender to advance the Commitment (or any part thereof) shall immediately cease and the Commitment shall be reduced to zero.
|
|
(b) |
Thereafter
:
|
|
(i) |
On the Collateral Vessel becoming a Total Loss or suffering damage or being involved in an incident which in the opinion of the Lender may result in the
Collateral Vessel being subsequently determined to be a Total Loss or being sold following the drawdown of the first Advance,
|
|
(c) |
Total loss
: For the purpose of this Agreement, a Total Loss shall be
deemed to have occurred:
|
|
(i) |
in the case of an actual total loss of the Collateral Vessel, at the actual date and time the Collateral 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 falling twenty one (21) days after the date on which the Collateral Vessel was last reported;
|
|
(ii) |
in the case of a constructive total loss of the Collateral Vessel, at the date and time notice of abandonment (the "
NOA date
") of the Collateral Vessel is given to the insurers of the Collateral Vessel for the time being (provided a claim for such Total Loss is admitted
by such insurers) or, if such insurers do not admit such a claim
on the earlier of
(aa) the date when either the total loss is subsequently
admitted by the insurers, or (bb) a total loss is subsequently adjudged by a competent court of law or arbitration tribunal to have occurred or (cc) the date falling one hundred and eighty days (180) days after the NOA date, or, in the
event that such notice of abandonment is not given by the Collateral Owner to the insurers of the Collateral Vessel, at the date and time on which the incident occurred which may result, in the reasonable opinion of the Lender, in the
Collateral Vessel being subsequently determined to be a Total Loss;
|
|
(iii) |
in the case of a compromised or arranged total loss of the Collateral Vessel, on the date upon which a binding agreement as to such compromised or arranged
total loss has been entered into by the then insurers of the Collateral Vessel;
|
|
(iv) |
in the case of Compulsory Acquisition of the Collateral Vessel, on the date upon which the relevant requisition of title or other compulsory acquisition occurs
excluding a requisition for hire;
|
|
(v) |
in the case of, condemnation, capture, seizure, confiscation, arrest, or detention of the Collateral Vessel (other than where the same amounts to Compulsory
Acquisition of the Collateral Vessel) by any
|
|
(vi) |
in the case of hijacking, capture, seizure or confiscation of the Collateral Vessel arising as a result of a piracy or related incident unless the Collateral
Vessel be released and restored to the Collateral Owner from such hijacking, capture, seizure or confiscation within One hundred and fifty (150) days after the occurrence thereof.
|
|
(d) |
Refinancing
: In case of refinancing by another bank or if the
Borrower requests the Lender's consent for the discharge of the Collateral Mortgage registered on the Collateral Vessel, the Borrower shall pay to the Lender the full amount of the Outstanding Indebtedness together with all sums payable
by the Borrower to the Lender under Clause 4.4 (
Amounts payable on prepayment
).
|
4.4 |
Amounts payable on prepayment
|
|
(a) |
Any prepayment of all or part of the Loan under this Agreement shall be made together with (a) accrued interest on the amount to be prepaid to the date of such
prepayment (calculated, in the case of a prepayment pursuant to Clause 3.6 (
Market disruption - Non Availability
) at a rate
equal to the aggregate of the Margin and the cost to the Lender of funding the Loan), (b) any additional amount payable under Clause 6.6 (
Gross-up
)
or Clause12.2 (
Increased cost
), (c) all other sums payable by the Borrower to the Lender under this Agreement or any of the other Finance Documents including, without limitation, any accrued
Commitment Fee payable under Clause 5.1(b) any amounts payable under Clause 11 (
Indemnities
) and (d) in relation to any
prepayment made on a date other than an Interest Payment Date in respect of the whole of the Loan, it shall, in addition to the amount prepaid and accrued interest, pay to the Lender any amount which the Lender may certify is necessary to
compensate the Lender for any Break Costs incurred by the Lender as a result of making the prepayment in question.
|
4.5 |
Termination of Contract or Refund Guarantee
|
|
(a) |
If:
|
|
(i) |
the Contract is terminated or rescinded for any reason whatsoever or the Contract is frustrated or the Contract is (in the opinion of the Lender) materially
varied in any manner not permitted by or pursuant to the Pre-Delivery Security Assignment or this Agreement; or
|
|
(ii) |
the Refund Guarantee is repudiated, cancelled, rescinded or otherwise
|
|
(iii) |
the Newbuilding Vessel is not delivered to, and accepted by, the Borrower under the Contract or Cargill does not intend (at the Lender's opinion) to pay the Net
Sale Proceeds (as defined in the MOA) to the Borrower's account with the Lender, in either case, on or before the last day of the Drawdown Period; or
|
|
(iv) |
any claim made under the Refund Guarantee is not paid within thirty (30) days of it being made,
|
|
(v) |
the MOA is repudiated, cancelled, rescinded or otherwise terminated; or
|
5. |
FEES, EXPENSES, VAT, STAMP DUTY ETC.
|
5.1 |
Fees and commissions
|
|
(a) |
Arrangement fee
: The Borrower shall pay to the Lender a
non-refundable arrangement fee (the "
Arrangement Fee
") in the amount equal to one point two five per cent (1.25%)
of the amount of the Commitment payable on the first Drawdown Date.
|
|
(b) |
Commitment Fee
: The Borrower shall pay to the Lender a commitment
fee (the "
Commitment Fee
"), payable quarterly in arrears until the last day of the Drawdown Period on each of the
dates falling at three (3) monthly intervals after the 5
th
July, 2018 until the last day of the Drawdown Period and on the last day of the Drawdown Period, computed from the 5
th
July, 2018 (in the case of the first
payment of the Commitment Fee) and from the date of the preceding payment of the Commitment Fee (in the case of each subsequent payment) at the rate of one per cent (1%) per annum on the daily undrawn and un-cancelled amount of the
Commitment, until the lapse of the Drawdown Period.
|
|
(c) |
Non-refundable
: The Arrangement Fee and the Commitment Fee shall be
payable by the Borrower to the Lender whether or not any part of the Commitment is ever advanced (irrespective of utilisation/cancellation in part or in whole and/or Contract cancellation, non Delivery of the Newbuilding Vessel or sale of
the Newbuilding Vessel prior to her Delivery to the
|
5.2 |
Expenses
|
|
(a) |
Initial and Amendment expenses
: all expenses (including legal,
printing and out-of-pocket expenses) reasonably incurred by the Lender in connection with the negotiation, preparation, execution and, where relevant, registration of this Agreement and the other Security Documents and of any amendment or
extension of or the granting of any waiver or consent under this Agreement and/or any of the Security Documents, whether any such security shall in fact be constituted or not or the granting of any waiver or consent under, any of the
Security Documents and the syndication of the Loan; and
|
|
(b) |
Enforcement expenses
: all expenses (including legal and
out-of-pocket expenses) incurred by the Lender in contemplation of, or otherwise in connection with, the enforcement of, or preservation of any rights under, this Agreement and/or any of the other Security Documents, or otherwise in
respect of the moneys owing under this Agreement and/or any of the other Security Documents or the contemplation or preparation of the above, whether they have been effected or not; and
|
|
(c) |
Mortgagee's Interest costs
: reimburse the Lender on demand for any
and all costs incurred by the Lender (as supported by vouchers/invoices ) in effecting and keeping effected on the basis of the Lender's open cover (a) a mortgagee's interest insurance which the Lender may at any time effect for an amount
of 120% of the amount of the Loan at the Lender's wording or upon such terms as shall from time to time be determined by the Lender (herein "
MII
") and (b) a mortgagee's interest additional perils (pollution) insurance policy (herein "
MAPI
")
for an amount of 120% of the amount of the Loan, of which the Lender may at any time effect on such terms, and with such insurers as shall from time to time be approved by the Lender,
provided however, that
the Lender shall in its absolute discretion appoint and instruct in respect of any such MII and MAPI the insurance brokers in respect of such insurance and
provided, further, that
the Borrower shall pay on demand to the Lender the proportion of premium due in respect of the Collateral Vessel for which such
insurance cover has been effected by the Lender, and any certificate of the Lender in respect of any such premium due by the Borrower (as supported by the necessary invoices/vouchers) shall (save for manifest error) be conclusive and
binding upon the Borrower.
|
|
(d) |
Other expenses
: any and all other Expenses as defined in Clause 1.2
|
|
(e) |
Legal costs
: the legal costs of the Lender's appointed lawyer, in
respect of the preparation of this Agreement and the other Security Documents as well as the legal costs of the foreign lawyers in respect of the registration of the Security Documents or any search or opinion given to the Lender in
respect of the Security Parties or the Vessels or the Finance Documents. The said legal costs shall be due and payable as incurred.
|
5.3 |
Value Added Tax
|
5.4 |
Stamp and other duties
|
6. |
PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
|
6.1 |
No set-off or counterclaim
|
|
(a) |
The Borrower acknowledges that in performing its obligations under this Agreement, the Lender will be incurring liabilities to third parties in relation to the
funding of amounts to the Borrower, such liabilities matching the liabilities of the Borrower to the Lender and that it is reasonable for the Lender to be entitled to receive payments from the Borrower gross on the due date in order that
the Lender is put in a position to perform its matching obligations to the relevant third parties. Accordingly, all payments to be made by the Borrower under this Agreement and/or any of the other Finance Documents shall be made in full,
without any set-off or counterclaim whatsoever and, subject as provided in Clause 6.6 (
Gross-up
), free and clear of any
deductions or withholdings or Governmental Withholdings whatsoever, in Dollars on the due date to the account of the Lender at such bank and in such place as the Lender may from time to time specify for that purpose, reference: "
PCH Dreaming Inc.
/Loan Agreement dated : 11
th
July, 2018
", or to such other account at such other
bank in such place as the Lender may from time to time specify for this purpose.
|
|
(b) |
If at any time it shall become unlawful or impracticable for the Borrower to
|
6.2 |
Payment by the Lender
|
6.3 |
Non-Banking Days
|
6.4 |
Calculations
|
6.5 |
Certificates conclusive
|
6.6 |
Gross-up
|
6.7 |
Loan account
|
7. |
REPRESENTATIONS AND WARRANTIES
|
7.1 |
Representations and warranties
|
|
(a) |
Due Incorporation/Valid Existence
: each of the Borrower and the
other corporate Security Parties is duly incorporated and validly existing and in good standing under the laws of their respective countries of incorporation, and have power to own their respective property and assets, to carry on their
respective business as the same are now being lawfully conducted and to purchase, own, finance and operate vessels, or, as the case may be, manage vessels, as well as to undertake the obligations which they have undertaken or shall
undertake pursuant to the Finance Documents;
|
|
(b) |
Due Corporate Authority
: the Borrower and the other corporate
Security Parties has power to execute, deliver and perform its obligations under the Underlying Documents to which it is or is to be a party, the Finance Documents to which it is a party and to borrow the Commitment under this Agreement
and to make all the payments contemplated by, and to comply with, those Finance Documents to which it is or is to be a party, and each of the corporate Security Parties has power to execute and deliver and perform its obligations under
the Underlying Documents to which it is or is to be a party and the Finance Documents to which it is or is to be a party; all necessary corporate, shareholder and other action has been taken to authorise
|
|
(c) |
Binding obligations
: the Finance Documents and the Underlying Documents constitute (or upon their execution - and in the case of any Mortgage upon its
registration at the Registry - will constitute) valid and legally binding obligations of the relevant Security Parties enforceable against the Borrower and the other Security Parties in accordance with their respective terms and that
there are no other agreements or arrangements which may adversely affect or conflict with the Finance Documents or the security thereby created;
|
|
(d) |
No conflict with other obligations
: the execution and delivery of, the performance of their obligations under, and compliance with the provisions of,
the Finance Documents and the Underlying Documents by the relevant Security Parties will not (i) contravene any existing applicable law, statute, rule or regulation or any judgment, decree or permit to which the Borrower or any other
Security Party is subject, (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which the Borrower or any other Security Party is a party or is subject or
by which it or any of its property is bound, (iii) contravene or conflict with any provision of the constitutional documents of the Borrower or any other Security Party or (iv) result in the creation or imposition of or oblige the
Borrower or any other Security Party to create any Encumbrance (other than a Permitted Encumbrance) on any of the undertakings, assets, rights or revenues of the Borrower or any other Security Party;
|
|
(e) |
No litigation
: no litigation or arbitration, tax claim or administrative proceeding (including action relating to any alleged or actual breach of the
ISM Code and the ISPS Code) relating to sums exceeding Three hundred thousand Dollars ($300,000) involving a potential liability of the Borrower or any other Security Party is current or pending or (to its or its officers' knowledge)
threatened against the Borrower or such other Security Party, which, if adversely determined, would have a material adverse effect on the business, position, profitability, assets or the financial condition of any of them;
|
|
(f) |
No Notarisation/Filing/Recording
: to the best of the Borrower's knowledge, save for the registration of the Collateral Mortgage at the Registry, it is
not necessary to ensure the legality, validity, enforceability or admissibility in evidence of any of the Finance Documents and the Underlying Documents that they or any other instrument be notarised, filed, recorded, registered or
enrolled in any court, public office or elsewhere in any Relevant Jurisdiction or that any stamp, registration or similar tax or charge be paid in any Relevant Jurisdiction on or in relation to the Finance Documents and the Underlying
Documents and each of the Finance Documents and the Underlying Documents is in proper form for its enforcement in the courts of
|
|
(g) |
Choice of law
: to the best of the Borrower's knowledge, the choice of law agreed to govern this Agreement and/or any other Finance Document and the
submission to the jurisdiction of the courts agreed in each of the Finance Documents are or will be, on execution of the respective Finance Documents, valid and binding on the Borrower and any other Security Party which is or is to be a
party thereto;
|
|
(h) |
No immunity
: neither the Borrower nor any other Security Party nor any of their respective assets is entitled to immunity on the grounds of sovereignty
or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgement, execution or other enforcement);
|
|
(i) |
Shipping Company
: each of the Borrower, the Collateral Owner and the Managers is a shipping company involved in the owning or, as the case may be,
managing of ships engaged in international voyages and earning profits in free foreign currency;
|
|
(j) |
Licences/Authorisation
: every consent, authorisation, license or approval of, or registration with or declaration to, governmental or public bodies or
authorities or courts required by any Security Party to authorise, or required by any Security Party in connection with, the execution, delivery, validity, enforceability or admissibility in evidence of each of the Finance Documents and
the Underlying Documents or the performance by each Security Party of its obligations under the Finance Documents and the Underlying Documents to which such Security Party is or is to be a party has been obtained or made and is in full
force and effect and there has been no default in the observance of any of the conditions or restrictions (if any) imposed in, or in connection with, any of the same so far as the Borrower is aware;
|
|
(k) |
Perfected Securities
: when duly executed, the Finance Documents will create a perfected security interest in favour of the Lender, with the intended
priority, over the assets and revenues intended to be covered, valid and enforceable against the Borrower and the other Security Parties;
|
|
(l) |
Sanctions:
|
|
(i) |
neither any Security Party nor any other member of the Group:
|
|
a) |
is a Sanctions Restricted Person;
|
|
b) |
owns or controls directly or indirectly a Sanctions Restricted Person or is controlled or owned by a Sanction Restricted Person; or
|
|
c) |
has a Sanctions Restricted Person serving as a director, officer or, to the best of its knowledge, employee; and
|
|
(ii) |
no proceeds of the Loan shall be made available, directly or to the knowledge of the Security Parties, or any of them (after reasonable enquiry) indirectly, to
or for the benefit of a Sanctions Restricted Person contrary to Sanctions or for transactions in a Sanctions Restricted Jurisdiction nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by
Sanctions;
|
|
(m) |
Direct obligations - Pari Passu
: the obligations of the Borrower
under this Agreement are direct, general and unconditional obligations of the Borrower and rank at least pari passu with all other present and future unsecured and unsubordinated Financial Indebtedness of the Borrower (with the exception
of any obligations which are mandatorily preferred by law and not by contract);
|
|
(n) |
No default under other Financial Indebtedness
: neither the Borrower
nor any other Security Party is (nor would with the giving of notice or lapse of time or the satisfaction of any other condition or combination thereof be) in breach of or in default under any agreement relating to Financial Indebtedness
to which it is a party or by which it may be bound;
|
|
(o) |
Information
: all information, accounts, statements of financial
position, exhibits and reports furnished by or on behalf of any Security Party to the Lender in connection with the negotiation and preparation of this Agreement and each of the other Finance Documents are true and accurate in all
material respects and not misleading, do not omit material facts and all reasonable enquiries have been made to verify the facts and statements contained therein; to the best knowledge of the Directors/Officers or shareholders of the
Borrower, there are no other facts the omission of which would make any fact or statement therein misleading and, in the case of accounts and statements of financial position, they have been prepared in accordance with generally accepted
accounting principles which have been consistently applied;
|
|
(p) |
No Taxes
: no Taxes are imposed by deduction, withholding or
otherwise on any payment to be made by any Security Party under this Agreement and/or any other of the Finance Documents and/or the Underlying Documents or are imposed on or by virtue of the execution or delivery of this Agreement and/or
any other of the Finance Documents and/or the Underlying Documents or any document or instrument to be executed or delivered hereunder or thereunder. In case that any Tax exists now or will be imposed in the future, such Tax will be
borne by the Borrower;
|
|
(q) |
No Default
: no Default has occurred and is continuing;
|
|
(r) |
No Default under other Financial Indebtedness
: the Borrower has not
been declared in default under any agreement relating to Financial Indebtedness to which it is a party or by which it may be bound;
|
|
(s) |
No Default under the Contract or the Refund Guarantee
: the Borrower
is not in default of any of its obligations under the Contract or any of its obligations upon the performance or observance of which depend the continued liability of the Refund Guarantor in accordance with the terms of the Refund
Guarantee;
|
|
(t) |
No Encumbrance in respect of Pre-Delivery security
: the Borrower has
not previously charged, encumbered or assigned the benefit of any of its rights, title and interest in or to the Contract or the Refund Guarantee and such benefit and all such rights, title and interest are freely assignable and
chargeable in the manner contemplated by the Finance Documents;
|
|
(u) |
Ownership/Flag/Seaworthiness/Class/Insurance of the Collateral Vessel
:
the Collateral Vessel is and will on the first Drawdown Date and throughout the Security Period be:
|
|
(i) |
in the absolute and free from Encumbrances (other than in favour of the Lender) ownership of the Collateral Owner, who is and will on the first Drawdown Date
and throughout the Security Period be the sole legal and beneficial owner of the Collateral Vessel;
|
|
(ii) |
registered in the name of the Collateral Owner through the Registry under the laws and flag of the Flag State;
|
|
(iii) |
operationally seaworthy and in every way fit for service; and
|
|
(iv) |
classed with the Classification free of all notations, requirements and recommendations of the Classification Society;
|
|
(v) |
insured in accordance with the provisions of this Agreement and the Collateral Mortgage;
|
|
(vi) |
managed by the Managers; and
|
|
(vii) |
in full compliance with the ISM and the ISPS Code;
|
|
(v) |
Collateral Vessel's employment
: unless otherwise permitted in
writing by the Lender, the Collateral Vessel is not and will not, on or before the first Drawdown Date, be subject to any charter or contract or to any agreement to enter into any charter or contract which, if entered into after the date
of signing the Security Documents would have required the consent of the Lender and, on or before such Drawdown Date, there will not be any agreement or arrangement whereby the Earnings may be shared with any other person;
|
|
(w) |
Freedom from Encumbrances
: neither the Collateral Vessel, nor her
Earnings, Insurances nor the Earnings Account nor any other properties or rights which are, or are to be, the subject of any of the Security Documents nor any part thereof will be, on each Drawdown Date, subject to any Encumbrances other
|
|
(x) |
Compliance with Environmental Laws and Environmental Approvals
:
except as may already have been disclosed by the Borrower in writing to, and acknowledged in writing by, the Lender:
|
|
(i) |
the Collateral Owner, the Managers and their Related Companies and, to the best of the Borrower's knowledge and belief (having made due enquiry), their
respective Environmental Affiliates have complied with the provisions of all Environmental Laws;
|
|
(ii) |
the Collateral Owner, the Managers and their Related Companies and, to the best of the Collateral Owner's knowledge and belief (having made due enquiry), their
respective Environmental Affiliates have obtained all Environmental Approvals and are in compliance with all such Environmental Approvals; and
|
|
(iii) |
neither the Collateral Owner nor the Managers (or either of them) nor, to the best of the Collateral Owner's knowledge and belief (having made due enquiry), any
of their respective Environmental Affiliates has received notice of any Environmental Claim that the Collateral Owner or any other Relevant Party or any such Environmental Affiliate is not in compliance with any Environmental Law or any
Environmental Approval;
|
|
(y) |
No Environmental Claims
: except as may already have been disclosed
by the Borrower in writing to, and acknowledged in writing by, the Lender:
|
|
(i) |
there is no Environmental Claim pending or, to the best of the Borrower's knowledge and belief, threatened against the Collateral Owner or the Collateral Vessel
or their respective Environmental Affiliates/Related Companies or any other Relevant Ship; and
|
|
(ii) |
there has been no emission, spill, release or discharge of a Material of Environmental Concern from the Collateral Vessel or any other Relevant Ship or any
vessel owned by, managed or crewed by or chartered to the Collateral Owner which could give rise to an Environmental Claim;
|
|
(z) |
No potential Environmental Claims
: except as may already have been
disclosed by the Borrower in writing to, and acknowledged in writing by, the Lender, there has been no emission, spill, release or discharge of a Material of Environmental Concern from the Collateral Vessel which could give rise to an
Environmental Claim;
|
|
(aa) |
No material adverse change
: there has been no material adverse
change in the financial position of the Borrower or the Group from that described by the
|
|
(bb) |
Originals and copies true and complete
: the copies of each of the
Underlying Documents delivered or to be delivered to the Lender pursuant to Clause 9.1 (
Documents and evidence
) are, or will when delivered be, true and complete copies of such documents;
each such document will when delivered constitute valid and binding obligations of the parties thereto enforceable in accordance with its terms and there will have been no amendments or variations thereof or defaults thereunder;
|
|
(cc) |
Compliance with the ISM code
: the Collateral Vessel will comply on
the Drawdown Date and the Operator complies with the requirements of the ISM Code and the SMC which has been or, as the case may be, shall be issued in respect of the Collateral Vessel and shall remain valid on the Drawdown Date and
thereafter throughout the Security Period;
|
|
(dd) |
Compliance with ISPS Code
: the Collateral Owner has a valid and
current ISSC in respect of the Collateral Vessel and is in full compliance with the ISPS Code;
|
|
(ee) |
No US Tax Obligor
: Neither the Borrower nor any Security Party is a
US Tax Obligor;
|
|
(ff) |
Shareholding
: the shares in each of the Borrower, the Corporate
Guarantor and the Collateral Owner are legally and ultimately beneficially owned by such person or persons as disclosed to and approved by the Lender in the negotiation of this Agreement;
|
|
(gg) |
Taxes paid
: the Collateral Owner has paid all taxes applicable to,
or imposed on or in relation to itself, its business or the Collateral Vessel;
|
|
(hh) |
Contract Valid
: the copy of the Contract delivered to the Lender
concerning the purchase of the Collateral Vessel is a true and complete copy of such document constituting valid and binding obligations of the parties thereto enforceable in accordance with its terms and no amendments thereto or
variations thereof will be agreed nor will any action be taken by the parties thereto which would in any way render such document inoperative or unenforceable;
|
|
(ii) |
No Rebates
: there are and there will be no commissions, rebates,
premiums or other payments by or to or on account of the Borrower, any other Security Party or, to the knowledge of the Borrower, any other person in connection with the Contract other than as disclosed to the Lender by the Borrower in
writing.
|
7.2 |
Money laundering - acting for own account
|
7.3 |
Representations Correct
|
7.4 |
Repetition of Representations and Warranties.
|
8. |
UNDERTAKINGS
|
8.1 |
General
|
|
(a) |
Notice on adverse change or Default
: immediately inform the Lender upon becoming aware of any occurrence which might adversely affect the ability of any
Security Party to perform its obligations under any of the Finance Documents and, without limiting the generality of the foregoing, will inform the Lender of any Default forthwith upon becoming aware thereof and will from time to time, if
so requested by the Lender, confirm to the Lender in writing that, save as otherwise stated in such confirmation, no Default has occurred and is continuing;
|
|
(b) |
Consents and licenses
: without prejudice to Clause 7 (
Representations
and
|
|
(c) |
Use of Loan proceeds
: use the Loan exclusively for the purposes
specified in Clause 1.1 (
Amount and Purpose
);
|
|
(d) |
Pan passu
: ensure that its obligations under this Agreement shall,
without prejudice to the provisions of this Clause 8.1, at all times rank at least pari passu with all its other present and future unsecured and unsubordinated Financial Indebtedness with the exception of any obligations which are
mandatorily preferred by law and not by contract;
|
|
(e) |
Financial statements-Compliance Certificate
: The Borrower shall
procure that the Corporate Guarantor and the Collateral Owner shall fully comply with their respective obligations under the Existing Loan Agreement and the corporate guarantee granted by Top Ships in security of the obligations of the
Collateral Owner under the Existing Loan Agreement and in particular, without limitation, with their respective obligations under Clause 8.1(e) (
Financial statements-Compliance Certificate
) and Clause 16.11(d) (
Financial covenants-Compliance Certificate
)
of the Existing Loan Agreement;
|
|
(f) |
Provision of further information
: promptly, when requested, provide
the Lender with such financial and other information and accounts relating to the business, undertaking, assets, liabilities, revenues, financial condition or affairs of any Security Party and such other further general information
relating to any Security Party as the Lender from time to time may reasonably require;
|
|
(g) |
Financial Information
: provide the Lender from time to time as the
Lender may reasonably request with information on all major financial developments of the Borrower, the Collateral Owner and the Group, such as sales and/or purchases of vessels, new loans, refinancing restructuring of existing loans,
contracts for term employments of vessels within the group of companies owned and/or controlled by the same persons who own/control the Borrower, the financial condition, actual and projected for the following 12 month period, cash flow
position, commitments and operations of the Borrower including cash flow analysis and voyage accounts of the Collateral Vessel with a breakdown of income and running expenses showing net trading profit, trade payables and trade
receivables such financial details to be certified by an authorized signatory of the Borrower as to their correctness;
|
|
(h) |
Information on the employment of the Collateral Vessel
: provide the
Lender from time to time as the Lender may request with information on the employment of the Collateral Vessel, as well as on the terms and conditions of any charterparty, contract of affreightment, agreement or related document in
respect of the employment of the Collateral Vessel; such information to be certified by one of the directors of the Borrower as to their correctness;
|
|
(i) |
Banking operations
: ensure that all banking operations in connection
with the Collateral Vessel are carried out through the Lending Office of the Lender;
|
|
(j) |
Legal title
: hold the legal title to, and own the entire beneficial
interest in the Collateral Vessel, its Insurances and Earnings, free from all Encumbrances and other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained in the
Finance Documents;
|
|
(k) |
Subordination
: ensure that all Financial Indebtedness of the
Borrower to its shareholders, or to any of its Related Companies is fully subordinated to the rights of the Lender under the Finance Documents, in a form acceptable to the Lender, and to subordinate to the rights of the Lender under the
Finance Documents any Financial Indebtedness issued to it by its shareholders, or to any of its Related Companies, in a form acceptable to the Lender;
|
|
(l) |
Obligations under Finance Documents
: duly and punctually perform
each of the obligations expressed to be assumed by it under the Finance Documents to which it is a party;
|
|
(m) |
Payment on demand
: pay to the Lender on demand any sum of money
which is payable by the Borrower to the Lender under this Agreement but in respect of which it is not specified in any other Clause when it is due and payable;
|
|
(n) |
Compliance with Laws and Regulations
: to comply, or procure
compliance with all laws or regulations relating to the Collateral Owner and/or the Collateral Vessel, its ownership, operation and management or to the business of the Borrower and cause this Agreement and the other Finance Documents to
comply with and satisfy all the requirements and formalities established by the applicable laws to perfect this Agreement and the other Finance Documents as valid and enforceable Finance Documents;
|
|
(o) |
Compliance with ISM Code
: procure that each Manager and any
Operator:
|
|
(i) |
will comply with and ensure that the Collateral Vessel and any Operator by no later than the Drawdown Date complies with the requirements of the ISM Code,
including (but not limited to) the maintenance and renewal of valid certificates pursuant thereto throughout the Security Period;
|
|
(ii) |
immediately inform the Lender if there is any threatened or actual withdrawal of the Borrower's, either Manager's or an Operator's DOC or the SMC in respect of
the Collateral Vessel; and
|
|
(iii) |
promptly inform the Lender upon the issue to the Borrower, either Manager or any Operator of a DOC and to the Collateral Vessel of an SMC or the receipt by the
Borrower, the Managers (or either of them) or any Operator of notification that its application for the same has been realised;
|
|
(p) |
Compliance with ISPS Code
: procure that each Manager or any Operator
will:
|
|
(i) |
maintain at all times a valid and current ISSC in respect of the Collateral Vessel;
|
|
(ii) |
immediately notify the Lender in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC in respect of the
Collateral Vessel; and
|
|
(iii) |
procure that the Collateral Vessel will comply at all times with the ISPS Code in every respect;
|
|
(q) |
Maintenance of Encumbrances
:
|
|
(i) |
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Encumbrances which it purports to
create; and
|
|
(ii) |
without limiting the generality of paragraph (i) above, at its own cost, promptly register, file, record or enrol any Finance Document with any court or
authority in all Relevant Jurisdictions, pay any stamp, registration or similar tax in all Relevant Jurisdictions in respect of any Finance Document, give any notice or take any other step which may be or has become necessary or desirable
for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Encumbrance which it creates;
|
|
(r) |
Inspections/Surveys
: at any time that the Lender might consider to
be necessary or useful, have the Collateral Vessel inspected and/or surveyed at the expense of the Borrower by surveyors and/or inspectors appointed by the Lender and the Borrower hereby duly authorises the Lender to review the insurance
and operating records of the Borrower,
provided that
all such inspections and surveys will not interfere with the smooth operation of the Collateral Vessel;
|
|
(s) |
Notification of litigation
: provide the Lender with details of any
legal or administrative action involving the Borrower, any Security Party, the Managers, the Collateral Vessel, her Earnings or her Insurances as soon as
|
|
(t) |
Principal place of business
: maintain its place of business, and
keep its corporate documents and records, at the address notified to the Lender at the negotiation of this Agreement and will not establish, or do anything as a result of which it would be deemed to have, a place of business in the United
Kingdom or the United States of America but in case of a change of its place of business such change should not be unreasonably denied;
|
|
(u) |
Compliance with Covenants
: duly and punctually perform all
obligations under this Agreement and the other Finance Documents; and
|
|
(v) |
No US Tax Obligor
: procure that, unless otherwise agreed by the
Lender, no Security Party shall become a US Tax Obligor.
|
8.2 |
Negative undertakings
|
|
(a) |
Negative pledge
: permit any Encumbrance (other than a Permitted
Encumbrance) to subsist, arise or be created or extended over all or any part of its present or future undertakings, assets, rights or revenues to secure or prefer any present or future Financial Indebtedness or other liability or
obligation of the Borrower or any other person;
|
|
(b) |
No further Financial Indebtedness
: incur any further Financial
Indebtedness nor authorise or accept any capital commitments nor enter into any agreement for payment on deferred terms or hire agreement;
|
|
(c) |
No merger
: merge or consolidate with any other person;
|
|
(d) |
No Disposals
:
|
|
(i) |
sell, transfer, abandon, lend, lease or otherwise dispose of or cease to exercise direct control over any part (being, either alone or when aggregated with all
other disposals falling to be taken into account pursuant to this Clause 8.2(d), material in the opinion of the Lender in relation to the undertakings, assets, rights and revenues of the Borrower) of its present or future undertaking,
assets, rights or revenues (otherwise than by transfers, sales or disposals for full consideration in the ordinary course of trading) whether by one or a series of transactions related or not;
|
|
(ii) |
transfer, lease or otherwise dispose of any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any
right to damages or compensation;
|
|
(e) |
No other business
: undertake any type of business other than the
construction of the Newbuilding Vessel;
|
|
(f) |
No investments
: make any investments in any person, asset, firm,
corporation, joint venture or other entity;
|
|
(g) |
No acquisitions
: acquire any further assets other than the
Newbuilding Vessel and rights arising under contracts entered into by or on behalf of the Borrower in the ordinary course of its current business of constructing the Newbuilding Vessel;
|
|
(h) |
No other obligations
: incur any liability or obligations except
liabilities and obligations arising under the Finance Documents or contracts entered into in the ordinary course of its business of constructing the Newbuilding Vessel;
|
|
(i) |
No borrowing
: incur any Borrowed Money except for Borrowed Money
pursuant to the Finance Documents;
|
|
(j) |
No repayment of borrowings
: repay the principal of, or pay interest
on or any other sum in connection with, any of its Borrowed Money except for Borrowed Money pursuant to the Finance Documents;
|
|
(k) |
No Payments
: except pursuant to this Agreement and the other Finance
Documents (and then only to the extent expressly permitted by the same) pay out any funds to any company or person except in connection with its administration and the construction of the Newbuilding Vessel;
|
|
(l) |
No guarantees
: issue any guarantees or indemnities or otherwise
become directly or contingently liable for the obligations of any person, firm, or corporation except pursuant to the Finance Documents;
|
|
(m) |
No Loans
: make any loans or advances to, or any investments in any
person, firm, corporation, joint venture or other entity including (without limitation) any loan or advance or grant any credit (save for normal trade credit in the ordinary course of business) to any officer, director, stockholder or
employee or any other company managed by the Managers (or either of them) directly or through the Managers (or either of them) or agree to do so;
|
|
(n) |
No securities
: permit any Financial Indebtedness of the Borrower to
any person (other than the Lender) to be guaranteed by any person;
|
|
(o) |
No distributions
: declare or pay any dividends or distribute any of
its present or future assets, undertakings, rights or revenues (which are all assigned to the Lender) to any of its shareholders;
|
|
(p) |
No subsidiaries
: form or acquire any Subsidiaries;
|
|
(q) |
Maintenance of Business Structure
: change the nature, organisation
and conduct of the business of the Borrower as prospective owner of the Newbuilding Vessel or carry on any business other than the business carried on at the date of this Agreement;
|
|
(r) |
Maintenance of Legal Structure
: permit that any of the documents
defining the constitution of the Borrower shall be materially (in the Lender's opinion) altered in any manner whatsoever;
|
|
(s) |
No Encumbrance of Assets
: allow any part of its undertaking,
property, assets or rights, whether present or future, to be mortgaged, charged, pledged, used as a lien or otherwise encumbered without the prior written consent of the Lender; and
|
|
(t) |
Control
: ensure that no change shall be made directly or indirectly
in the ownership, beneficial ownership, control or management of the Borrower, the Corporate Guarantors and the Managers or of the Vessels or any share therein from that disclosed to the Lender at the negotiation of this Agreement,
Provided however that
in the case of Top Ships no change shall be made directly or indirectly in the legal ownership, ultimate beneficial ownership and
control of Top Ships as a result of which members of the Evangelos Pistiolis family shall hold, directly or indirectly, less than 40% of the entire issued and outstanding shares/stock of Top Ships.
|
8.3 |
Undertakings concerning the Collateral Vessel
|
8.4 |
Negative undertakings in respect of the Collateral Vessel
.
The Borrower shall procure that the provisions of Clause 8.4 (
Negative undertakings in respect of the Collateral Vessel
) of the
Existing Loan Agreement shall apply to this Agreement as if they were expressly incorporated herein with any necessary modifications and shall ensure that same are fully complied with by the Collateral Owner.
|
8.5 |
Validity of Securities - Earnings - Taxes etc.
|
|
(a) |
Validity
: ensure and procure that all governmental or other consents
required by law and/or any other steps required for the validity, enforceability and legality of this Agreement and the other Finance Documents are maintained in full force and effect and/or appropriately taken;
|
|
(b) |
Earnings
: ensure and procure that, unless and until directed by the
Lender otherwise (i) all the Earnings of the Collateral Vessel shall be paid to the Earnings Account and (ii) the persons from whom the Earnings are from time to time due are irrevocably instructed to pay them to the said Earnings Account
or to such account in the name of the Collateral Owner as shall be from time to time determined by the Lender in accordance with the provisions hereof and of the relevant Security Documents;
|
|
(c) |
Taxes
: pay all Taxes, assessments and other governmental charges
when the same fall due, except to the extent that the same are being contested in good faith by appropriate proceedings and adequate reserves have been set aside for their payment if such proceedings fail;
|
|
(d) |
Additional Documents
: from time to time at the request of the Lender
execute and deliver to the Lender or procure the execution and delivery to the Lender of all such documents as shall be deemed desirable at the reasonable discretion of the Lender for giving full effect to this Agreement, and for
perfecting, protecting the value of or enforcing any rights or securities granted to the Lender under any one or more of the provisions of this Agreement, the other Finance Documents and any other documents executed pursuant hereto or
thereto and in case that any conditions precedent (with the Lender's consent) have not been fulfilled prior to the Drawdown Date, such conditions shall be complied with within five (5) Banking Days after the Lender's written request
(unless the Lender agrees otherwise in writing) and failure to comply with this covenant shall be an Event of Default.
|
8.6 |
Sanctions
|
|
(a) |
Without limiting Clause 8.7 (
Compliance with laws etc.
),
the Borrower hereby undertakes with the Lender that, from the date of this Agreement and until the date that the Outstanding Indebtedness is paid in full, it shall ensure that the Collateral Vessel:
|
|
(i) |
will not be used by or for the benefit of a Sanctions Restricted Person contrary to Sanctions; and/or
|
|
(ii) |
will not be used in trading in any Sanctions Restricted Jurisdiction or in any manner contrary to Sanctions; and/or
|
|
(iii) |
will not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances.
|
|
(b) |
Each Borrower shall:
|
|
(i) |
not directly or to its knowledge (after reasonable enquiry) indirectly use or permit to be used all or any part of the proceeds of the Loan, or lend, contribute
or otherwise make available such proceeds directly or
|
|
(ii) |
shall not fund all or part of any payment under the Loan out of proceeds derived directly or to its knowledge (after reasonable enquiry) indirectly from any
activity or transaction with a Sanctions Restricted Person contrary to Sanctions or in a Sanctions Restricted Jurisdiction or which would otherwise cause any party to be in breach of any Sanctions; and
|
|
(iii) |
procure that no proceeds to its knowledge (after reasonable enquiry) from activities or business with a Sanctions Restricted Person contrary to Sanctions or in
a Sanctions Restricted Jurisdiction are credited to the its account maintained with the Lender.
|
8.7 |
Compliance with laws etc.
|
|
(a) |
comply, or procure compliance with all laws or regulations by the relevant Security Party:
|
|
(i) |
relating to its respective business generally; and
|
|
(ii) |
relating to the Collateral Vessel, its ownership, employment, operation, management and registration including, but not limited to, the ISM Code, the ISPS Code,
all Environmental Laws and the laws of the Flag State; and
|
|
(iii) |
all Sanctions;
|
|
(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, will procure that the Collateral Vessel not to be employed nor be allowed its employment, operation or management in any
manner contrary to any law or regulation including, but not limited to, the ISM Code, the ISPS Code and all Environmental Laws which has or is likely to have a material adverse effect on the business, position, profitability, assets or
the financial condition of any of the Security Parties and Sanctions.
|
8.8 |
Covenants for the Securities Parties
|
8.9 |
No security or lien from other person
|
8.10 |
Stock-holding
|
8.11 |
Know your customer and money laundering compliance
|
9. |
CONDITIONS
|
9.1 |
Documents and evidence
|
9.2 |
General conditions precedent
|
|
(a) |
The obligation of the Lender to make an Advance available shall be subject to the further conditions that, at the time of the giving of the Drawdown Notice in
respect thereof and at the time of the making of such Advance:
|
|
(b) |
the representations and warranties contained in Clause 7.1 (
Representations
and warranties
), and as may be repeated in Clause 7.4 (
Repetition of representations and warranties
) are true
and correct on and as of each such time as if each was made with respect to the facts and circumstances existing at such time; and
|
|
(c) |
no Default shall have occurred and be continuing or would result from the making of the Commitment.
|
9.3 |
Waiver of conditions precedent
|
9.4 |
Further conditions precedent
|
10. |
EVENTS OF DEFAULT
|
10.1 |
Events
|
|
(a) |
Non-payment
: any Security Party fails to pay any sum payable by it
under any of the Finance Documents at the time, in the currency and in the manner stipulated in the Security Documents (and, for this purpose, sums payable on demand shall be treated as having been paid at the stipulated time if paid
within three (3) Banking Days of demand); or
|
|
(b) |
Breach of Insurance and certain other obligations
: the Borrower
fails to obtain and/or maintain the Insurances (in accordance with the requirements of the Security Documents) or if any insurer in respect of such Insurances cancels the Insurances or disclaims liability by reason, in either case, of
misstatement in any proposal for the Insurances or for any other failure or default on the part of the Borrower (unless the Borrower at the time arranges and has fully in place insurance covenants satisfying the terms of this Agreement
and the terms of the other Security Documents in substitution for the Insurances which have been cancelled or in respect of which an insurer has disclaimed liability) or any other person or the Borrower commits any breach of or omits to
observe any of
|
|
(c) |
Breach of other obligations
: any Security Party commits any breach
of or omits to observe any of its obligations or undertakings expressed to be assumed by it under any of the Finance Documents or any of the Underlying Documents (other than those referred to in Clauses 10.1(a) (
Non payment
) and Clause 10.1(b) (
Breach of
Insurance and certain other obligations
)) and, in respect of any such breach or omission which in the opinion of the Lender is capable of remedy, such action as the Lender may require shall not have been taken within five
(5) Banking Days of the Lender notifying the relevant Security Party of such default and of such required action; or
|
|
(d) |
Misrepresentation
: any representation or warranty made or deemed to
be made or repeated by or in respect of any Security Party in or pursuant to any of the Finance Documents or any of the Underlying Documents or in any notice, certificate or statement referred to in or delivered under any of the Security
Documents or any of the Underlying Documents is or proves to have been incorrect or misleading in any material respect; or
|
|
(e) |
Cross-default
: any Financial Indebtedness of the Borrower or any
other member of the Group in excess of $500,000 is not paid when due or any Financial Indebtedness of the Borrower or any other member of the Group becomes (whether by declaration or automatically in accordance with the relevant agreement
or instrument constituting the same) due and payable prior to the date when it would otherwise have become due (unless as a result of the exercise by the Borrower or such other member of the Group of a voluntary right of prepayment) or
any creditor of the Borrower or any other member of the Group becomes entitled to declare any such Financial Indebtedness due and payable or any facility or commitment available to the Borrower or such other member of the Group relating
to Financial Indebtedness, is withdrawn, suspended or cancelled by reason of any default (however described) of the person concerned unless the Borrower or such other member of the Group shall have satisfied the Lender that such
withdrawal, suspension or cancellation will not affect or prejudice in any way such party's ability to pay its debts as they fall due and fund its commitments, or any guarantee given by the Borrower or any other member of the Group in
respect of Financial Indebtedness in excess of $500,000 is not honoured when due and called upon unless, in any such case, the Borrower is contesting in good faith the validity of its obligations to make any payment referred to in this
Clause 10.1(e) and the Borrower has provided the Lender with satisfactory evidence that it has set aside adequate resources with respect to the amount being claimed of it and to finance any actions it is taking to contest such claim; or
|
|
(f) |
Legal process
: any judgment or order made or commenced in good faith
by a person against any of the Security Parties relating to an amount over $500,000 is not stayed or complied with within fifteen (15) days or a good faith creditor attaches or takes possession of, or a distress, execution, sequestration
or other bone fide process is levied or enforced upon or sued out against, any of the undertakings, assets, rights or revenues of any Security Party and is not discharged within fifteen (15) days; or
|
|
(g) |
Insolvency
: any Security Party is unable or admits inability to pay
its debts as they fall due; suspends making payments on any of its debts or announces an intention to do so; becomes insolvent; has assets the value of which is less than the value of its liabilities (taking into account contingent and
prospective liabilities); or suffers the declaration of a moratorium in respect of any of its Financial Indebtedness; or
|
|
(h) |
Reduction or loss of capital
: a meeting is convened by any corporate
Security Party for the purpose of passing any resolution to purchase, reduce or redeem any of its share capital (excluding, in the case of Top Ships, share buybacks or return of capital as a dividend ); or
|
|
(i) |
Winding up
: any corporate action, legal proceedings or other
procedure or step is taken for the purpose of winding up any corporate Security Party or an order is made or resolution passed for the winding up of any Security Party or a notice is issued convening a meeting for the purpose of passing
any such resolution; or
|
|
(j) |
Administration
: any petition is presented, notice given or other
step is taken for the purpose of the appointment of an administrator of any corporate Security Party or the Lender reasonably believes that any such petition or other step is imminent or an administration order is made in relation to any
corporate Security Party; or
|
|
(k) |
Appointment of receivers and managers
: any administrative or other
receiver is appointed of any Security Party or any part of its assets and/or undertaking or any other steps are taken to enforce any Encumbrance over all or any part of the assets of any Security Party; or
|
|
(l) |
Compositions
: any corporate action, legal proceedings or other
procedures or steps are taken, or negotiations commenced, by any Security Party or by any of its creditors with a view to the general readjustment or rescheduling of all or part of its indebtedness (save in the case of Top Ships of
rescheduling of all or part of its unsecured indebtedness), or to proposing any kind of composition, compromise or arrangement involving such company and any of its creditors
provided however that
if the Borrower is able to provide evidence satisfactory in all respect to the Lender, that not withstanding such readjustment or rescheduling, composition, compromise or arrangement,
it will still, in the Lender's sole opinion, be able to satisfy its permanent obligations as they fall due, the same shall not constitute an event of default; or
|
|
(m) |
Analogous proceedings
: there occurs, in relation to any Security
Party, in any country or territory in which any of them carries on business or to the jurisdiction of whose courts any part of their respective assets is subject, any event which, in the reasonable opinion of the Lender, appears in that
country or territory to correspond with, or have an effect equivalent or similar to, any of those mentioned in Clause 10.1(f) (
Legal
process
) to Clause 10.1(1) (
Compositions
) (inclusive) or any Security Party otherwise becomes subject, in any
such country or territory, to the operation of any law relating to insolvency, bankruptcy or liquidation; or
|
|
(n) |
Cessation of business
: any Security Party suspends or ceases or
threatens to suspend or cease to carry on its business; or
|
|
(o) |
Seizure
: all or a material part of the undertaking, assets, rights
or revenues of, or shares or other ownership interests in, any Security Party are seized, nationalised, expropriated or compulsorily acquired by or under the authority of any government; or
|
|
(p) |
Invalidity
: any of the Security Documents shall at any time and for
any reason become invalid or unenforceable or otherwise cease to remain in full force and effect, or if the validity or enforceability of any of the Security Documents shall at any time and for any reason be contested by any Security
Party which is a party thereto, or if any such Security Party shall deny that it has any, or any further, liability thereunder; or
|
|
(q) |
Unlawfulness
: it becomes impossible or unlawful at any time for any
Security Party, to fulfil any of the covenants and obligations expressed to be assumed by it in any of the Security Documents or for the Lender to exercise the rights or any of them vested in it under any of the Security Documents or
otherwise; or
|
|
(r) |
Repudiation
: any Security Party repudiates any of the Security
Documents or does or causes or permits to be done any act or thing evidencing an intention to repudiate any of the Security Documents; or
|
|
(s) |
Encumbrances enforceable
: any Encumbrance (other than Permitted
Liens) in respect of any of the property (or part thereof) which is the subject of any of the Security Documents becomes enforceable; or
|
|
(t) |
Material adverse change
: there occurs, in the opinion of the Lender,
a material adverse change in the financial condition of any Security Party from the financial and other information disclosed by the Borrower to the Lender in the negotiation of this Agreement, which might, in the opinion of the Lender,
materially impair the ability of such Security Party to perform their respective obligations under this Agreement and the Finance Documents to which is or is to be a party; or
|
|
(u) |
Arrest
: the Collateral Vessel is arrested, confiscated, seized,
taken in execution, impounded, forfeited, detained in exercise or purported exercise of any
|
|
(v) |
Registration
: the registration of the Collateral Vessel under the
laws and flag of the Flag State is cancelled or terminated without the prior written consent of the Lender or, if the Collateral Vessel is only provisionally registered on the Delivery Date, the Collateral Vessel is not permanently
registered under the laws and flag of the Flag State within three (3) months of the Delivery Date, or if such registration of the Collateral Vessel is not renewed at least within fifteen (15) days prior to the expiry of such registration;
or
|
|
(w) |
Unrest
: the Flag State of the Collateral Vessel becomes involved in
hostilities or civil war or there is a seizure of power in such Flag State by unconstitutional means if, in any such case, such event could in the opinion of the Lender reasonably be expected to have a material adverse effect on the
security constituted by any of the Security Documents and the Collateral Owner fails to register the Collateral Vessel at a flag acceptable to the Lender upon the Lender's request within the period prescribed in such request; or
|
|
(x) |
Mortgage contested
: the registration of the Collateral Mortgage is
contested or becomes void or voidable or liable to cancellation or termination, or if the validity or priority of the Collateral Mortgage is contested; or
|
|
(y) |
Material events
: any other event occurs or circumstance arises
which, in the opinion of the Lender, is likely materially and adversely to affect either (i) the ability of any Security Party to perform all or any of its obligations under or otherwise to comply with the terms of any of the Security
Documents or (ii) the security created by any of the Security Documents; or
|
|
(z) |
Earnings Account
: any moneys are withdrawn from the Earnings Account
other than in accordance with Clause 14 (
Earnings Account
) of the Existing Loan Agreement; or
|
|
(aa) |
Change in shareholding
: there is a change in the legal and/or
ultimate beneficial ownership of the shares in any of the Borrower and the Corporate Guarantors from that existing on the date of this Agreement as specified in Clause 7.1(ff) (
Shareholding
) and witnessed by Ultimate Beneficial Declaration ("
UBO
")
declaration without the prior written consent of the Lender); or
|
|
(bb) |
Security Documents
: any event of default (as howsoever described or
defined therein) occurs under the Security Documents (or any of them); or
|
|
(cc) |
Existing Loan Agreement
: any event of default (as howsoever
described or defined therein) occurs under Existing Loan Agreement and/or the Security Documents (or any of them) relative thereto.
|
10.2 |
Consequences of Default - Acceleration
|
|
(a) |
by notice to the Borrower declare that the obligation of the Lender to make the Commitment available shall be terminated, whereupon the Commitment shall be
reduced to zero forthwith; and/or
|
|
(b) |
by notice to the Borrower declare that the Loan and all interest and commitment commission accrued and all other sums payable under the Security Documents have
become due and payable, whereupon the same shall, immediately or in accordance with the terms of such notice, become due and payable without any further diligence, presentment, demand of payment, protest or notice or any other procedure
from the Lender which are expressly waived by the Borrower; and/or
|
|
(c) |
put into force and exercise all or any of the rights, powers and remedies possessed by it under this Agreement and/or any other Security Document and/or as
mortgagee of the Collateral Vessel, mortgagee, chargee or assignee or as the beneficiary of any other property right or any other security (as the case may be) of the assets charged or assigned to it under the Security Documents or
otherwise (whether at law, by virtue of any of the Security Documents or otherwise).
|
10.3 |
Multiple notices; action without notice
|
10.4 |
Demand basis
|
10.5 |
Proof of Default
|
10.6 |
Exclusion of Lender's liability
|
|
(a) |
for any loss caused by an exercise of rights under, or enforcement of an Encumbrance created by, a Security Document or by any failure or delay to exercise such
a right or to enforce such an Encumbrance; or
|
|
(b) |
as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such an
Encumbrance or for any reduction (however caused) in the value of such an asset,
|
11. |
INDEMNITIES
|
11.1 |
Miscellaneous indemnities
|
|
(a) |
any default in payment by the Borrower of any sum under any of the Security Documents when due;
|
|
(b) |
the occurrence of any other Event of Default;
|
|
(c) |
any prepayment of the Loan or part thereof being made under Clause 4.2 (
Voluntary prepayment
), Clause 4.3 (
Compulsory Prepayment in case of Total Loss or sale of the Collateral Vessel
), or Clause 12 (
Unlawfulness-Increase cost
), or any other repayment
or prepayment of the Loan or part thereof being made otherwise than on an Interest Payment Date relating to the part of the Loan prepaid or repaid; or
|
|
(d) |
the Commitment not being made for any reason (excluding any default by the Lender) after the Drawdown Notice in relation thereto has been given.
|
11.2 |
Extend of indemnity
|
11.3 |
Currency indemnity
|
11.4 |
Environmental indemnity
|
11.5 |
Maintenance of the Indemnities
|
11.6 |
11.6 Communications Indemnity
|
|
(a) |
Express authority is hereby given by the Borrower to the Lender to accept all tested or untested communications given by facsimile, electronic mail or
otherwise, regarding any or all of the notices (as defined in Clause 17.4 (
Meaning of "notice"
) under this Agreement, subject
to any restrictions imposed by the Lender relating to such notices including, without limitation (if so required by the Lender), the obligation to confirm such notices by letter.
|
|
(b) |
The Borrower shall recognise any and all of the said notices as legal, valid and binding, when these notices come from the fax number or electronic mail address
mentioned in Clause 17.1 (
Notices
) or any other fax or electronic mail address usually used by it or the Approved Manager and
are duly signed or in case of emails are duly sent by the person appearing to be sending such notice.
|
|
(c) |
The Borrower hereby assumes full responsibility for the execution of the said notices, and promises and recognises that the Lender shall not be held responsible
for any loss, liability or expense that may result from such notices. It is hereby undertaken by the Borrower to indemnify in full the Lender from and against all actions, proceedings, damages, costs, claims, demands, expenses and any
and all direct and/or indirect losses which the Lender may suffer, incur or sustain by reason of the Lender following such notices.
|
|
(e) |
With regard to notices (as defined in Clause 16.4 (
Meaning
of "notice"
) issued by electronic and/or mechanical processes (e.g. by facsimile or electronic mail) the following are applicable:
|
|
(i) |
The Borrower hereby acknowledges and accepts the risks associated with the use of unsecured electronic mail communication including, without limitation, risk of
delay, loss of data, confidentiality breach, forgery, falsification and malicious software. The Lender shall not be liable in any way for any loss or damage or any other disadvantage suffered by the Borrower resulting from such unsecured
electronic mail communication.
|
|
(ii) |
If the Borrower or any other Security Party wishes to cease all electronic communication, it shall give written notice to the Lender accordingly after receipt
of which notice the Parties shall cease all electronic communication.
|
|
(iii) |
For as long as electronic communication is an accepted form of communication, the Parties shall:
|
|
a) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that
means; and
|
|
b) |
notify each other of any change to their respective addresses or any other such information supplied to them; and
|
|
(iv) |
in case electronic communication is sent to recipients with the domain <
Louka@loukapartners.com
>,
the parties shall without undue delay inform each other if there are changes to the said domain or if electronic communication shall thereafter be sent to individual electronic mail addresses.
|
|
(f) |
The risks of misunderstandings and errors resulting from notices (as defined in Clause 17.4 (
Meaning of "
notice
"
) being given as mentioned above, are for the Borrower and the Lender will be indemnified in full pursuant to this Clause save in case of Lender's wilful
misconduct.
|
|
(g) |
The Lender shall have the right to ask the Borrower to furnish any information the Lender may require to establish the authority of any person purporting to act
on behalf of the Borrower for these notices, but it is expressly agreed that there is no obligation for the Lender to do so. The Lender shall be fully protected in, and the Lender shall incur no liability to the Borrower for acting upon
the said notices, which were believed by the Lender in good faith to have been given by the Borrower or by any of its authorised representative(s).
|
|
(d) |
It is undertaken by the Borrower to use its best endeavours to safeguard the function and the security of the electronic and mechanical appliance(s) such as
fax(es), electronic mail(s) etc. The Borrower shall hold the Lender harmless and indemnified from all claims, losses, damages and expenses which the Lender may incur by reason of the failure of the Borrower to comply with the obligations
under this Clause.
|
11.7 |
Electronic communication.
|
|
(a) |
The Borrower hereby acknowledge and accept the risks associated with the use of unsecured electronic mail communication including, without limitation, risk of
delay, loss of data, confidentiality breach, forgery, falsification and malicious software. The Lender shall not be liable in any way for any loss or damage or any other disadvantage suffered by the Borrower resulting from such unsecured
electronic mail communication.
|
|
(b) |
If the Borrower or any other Security Party wishes to cease all electronic communication, it shall give written notice to the Lender accordingly after receipt
of which notice the Parties shall cease all electronic communication.
|
|
(c) |
For as long as electronic communication is an accepted form of communication, the Parties shall:
|
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that
means; and
|
|
(ii) |
notify each other of any change to their respective addresses or any other such information supplied to them; and
|
|
(d) |
in case electronic communication is sent to recipients with the domain
Louka@loukapartners.com
,
the parties shall without undue delay inform each other if there are changes to the said domain or if electronic communication shall thereafter be sent to individual e-mail addresses.
|
11.8 |
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.
|
11.9 |
FATCA status
|
|
(a) |
The Lender hereby confirms to the Borrower that it is a FATCA Exempt Party. If, after the date of this Agreement the Lender becomes aware that it has ceased to
be a FATCA Exempt Party, it will notify the Borrower reasonably promptly.
|
|
(b) |
Subject to Clause 11.9(d) below, each party shall, within ten (10) Banking 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 (including its applicable passthru percentage or
other information required under the Treasury Regulations or other official guidance including intergovernmental agreements) as that other party reasonably requests for the purposes of that other party's compliance with FATCA.
|
|
(c) |
If a party confirms to another party pursuant to Clause 11.9(b)(i) 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.
|
|
(d) |
Clause 11.9(b)(i) above shall not oblige the Lender to do anything which would or might in its reasonable opinion constitute a breach of:
|
|
(i) |
any law or regulation;
|
|
(ii) |
any policy of the Lender;
|
|
(iii) |
any fiduciary duty; or
|
|
(iv) |
any duty of confidentiality.
|
|
(e) |
If a party fails to confirm its status or to supply forms, documentation or other information requested in accordance with Clause 11.9(b) above (including, for
the avoidance of doubt, where Clause 11.9(d) above applies), then:
|
|
(i) |
if that party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such party shall be treated for the purposes of the Security Documents
as if it is not a FATCA Exempt Party; and
|
|
(ii) |
if that party failed to confirm its applicable passthru percentage then such party shall be treated for the purposes of the Security Documents (and payments
made thereunder) as if its applicable passthru percentage is 100%,
|
|
(iii) |
until (in each case) such time as the party in question provides the requested confirmation, forms, documentation or other information.
|
12. |
UNLAWFULNESS, INCREASED COST AND BAIL-IN
|
12.1 |
Unlawfulness
|
12.2 |
Increased cost
|
|
(a) |
subject the Lender to Taxes or change the basis of Taxation of the Lender with respect to any payment under any of the Security Documents (other than Taxes or
Taxation on the overall net income, profits or gains of the Lender imposed in the jurisdiction in which its principal or lending office under this Agreement is located); and/or
|
|
(b) |
increase the cost to, or impose an additional cost on, the Lender or its holding company in making or keeping the Commitment available or maintaining or funding
all or part of the Loan; and/or
|
|
(c) |
reduce the amount payable or the effective return to the Lender under any of the Security Documents; and/or
|
|
(d) |
reduce the Lender's or its holding company's rate of return on its overall capital by reason of a change in the manner in which it is required to allocate
capital resources to the Lender's obligations under any of the Security Documents; and/or
|
|
(e) |
require the Lender or its holding company to make a payment or forgo a return on or calculated by reference to any amount received or receivable by the Lender
under any of the Security Documents; and/or
|
|
(f) |
require the Lender or its holding company to incur or sustain a loss (including a loss of future potential profits) by reason of being obliged to deduct all or
part
|
|
(i) |
the Lender shall notify the Borrower in writing of such event promptly upon its becoming aware of the same; and
|
|
(ii) |
the Borrower shall on demand pay to the Lender the amount which the Lender specifies (in a certificate setting forth the basis of the computation of such amount
but not including any matters which the Lender or its holding company regards as confidential) is required to compensate the Lender and/or (as the case may be) its holding company for such liability to Taxes, cost, reduction, payment,
forgone return or loss.
|
12.3 |
Claim for increased cost
|
12.4 |
Option to prepay
|
12.5 |
Exception
|
12.6 |
Nothing in Clause 12.2 (
Increased cost
) shall
entitle the Lender to receive any amount in respect of compensation for any such liability to Taxes, increased or additional cost, reduction, payment, foregone return or loss to the extent that the same is the subject of an additional
payment under Clause 6.6 (
Gross up
).
|
12.7 |
Contractual recognition of bail-in
. Notwithstanding any
other term of any Finance
|
|
(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.
|
13. |
SECURITY, APPLICATION AND SET-OFF
|
13.1 |
Securities
|
13.2 |
Application of moneys
|
|
(a) |
Order of application
: Except as any Security Document may otherwise
provide, all moneys received by the Lender under or pursuant to any of the Finance Documents and expressed to be applicable in accordance with this Clause 13.2 shall be applied by the Lender in the following manner:
|
|
(i) |
Firstly
, in or towards payment of Expenses and all sums other than
principal or interest which may be due to the Lender under this Agreement and the other Finance Documents or any of them at the time of application;
|
|
(ii) |
Secondly
, in or towards payment of any default interest;
|
|
(iii) |
Thirdly
, in or towards payment of any arrears of interest (other than
default interest) due in respect of the Loan or any part thereof;
|
|
(iv) |
Fourthly
, in or towards repayment of the Loan whether the same is due
and payable or not;
|
|
(v) |
Fifthly
, in or towards payment to the Lender for any loss suffered by
reason of any such payment in respect of principal not being effected on an Interest Payment Date relating to the part of the Loan repaid; and
|
|
(vi) |
Sixthly
, the surplus (if any) shall be paid to the Borrower or to
whomsoever else shall be entitled to receive such surplus.
|
|
(b) |
Notice of variation of order of application
: The Lender may, by
notice to the Borrower and the Security Parties, provide, at its sole discretion, for a different order of application from that set out in Clause 13.2(a) (
Order of application
) either as regards a specified sum or sums or as regards sums in a specified category or categories, without affecting the obligations of the Borrower to the Lender.
|
|
(c) |
Effect of variation notice
: The Lender may give notices under Clause
13.2(b) (
Notice of variation of order of application
) from time to time; and such a notice may be stated to apply not only to
sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Banking Day before the date on which the notice is served.
|
|
(d) |
Insufficient balance
: For the avoidance of doubt, in the event that
such balance is insufficient to pay in full the whole of the Outstanding Indebtedness, the Lender shall be entitled to collect the shortfall from the Borrower or any other person liable therefor.
|
|
(e) |
Appropriation rights overridden
: This Clause 13.2 and any notice
which the Lender gives under Clause 13.2(b) (
Notice of variation of order of application
) shall override any right of
appropriation possessed, and any appropriation made, by the Borrower or any other Security Party.
|
13.3 |
Set-off
|
|
(a) |
Express authority is hereby given by the Borrower to the Lender without prejudice to any of the rights of the Lender at law, contractually, in equity or
otherwise, at any time and without notice to the Borrower upon the occurrence of any Event of Default, which is continuing and without prior notice to the Borrower:
|
|
(b) |
to apply any credit balance standing upon any account of the Borrower with any branch of the Lender and in whatever currency in or towards satisfaction of any
sum due to the Lender from the Borrower under this Agreement, the Collateral General Assignment and/or any of the other Security Documents;
|
|
(c) |
in the name of the Borrower and/or the Lender to do all such acts and execute
|
|
(d) |
to combine and/or consolidate all or any accounts in the name of the Borrower or the other Security Parties or any of them with the Lender.
|
|
(e) |
For all or any of the above purposes authority is hereby given to the Lender to purchase with the moneys standing to the credit of any such account or accounts
such other currencies as may be necessary to effect such application. The Lender shall not be obliged to exercise any right given by this Clause. The Lender shall notify the Borrower forthwith upon the exercise of any right of set-off
giving full details in relation thereto.
|
13.4 |
Further assurance
|
14. |
EARNINGS ACCOUNT
|
14.1 |
General
|
15. |
ASSIGNMENT, TRANSFER, PARTICIPATION, LENDING OFFICE
|
15.1 |
Benefit and burden
|
15.2 |
No assignment by Security Parties
|
15.3 |
Assignment by the Lender
|
15.4 |
Disclosure of information
|
|
(a) |
The Lender may disclose (on a confidential basis) to a prospective assignee, substitute or transferee or to any other person (such person together with any
prospective assignee, substitute or transferee being hereinafter described as the "
Prospective Assignee
") who may
propose entering into contractual relations with the Lender in relation to this Agreement such information about the Security Parties, as the Lender shall consider appropriate if the Lender first procures that the Prospective Assignee
shall undertake to the Borrower to keep secret and confidential and, without the Borrower's consent , disclose to any third party any of the information, reports or documents supplied by the Lender, provided however that the Prospective
Assignee shall be entitled to disclose such information, reports or documents in the following situations:
|
|
(i) |
in relation to any proceedings arising out of this Agreement or the other Security Documents to the extent considered necessary by the Prospective Assignee to
protect its interest; or
|
|
(ii) |
pursuant to a court order relating to discovery or otherwise; or
|
|
(iii) |
pursuant to any law or regulation or to any fiscal, monetary, tax,
|
|
(iv) |
to its auditors, legal or other professional advisers.
|
15.5 |
Documenting assignments and transfers
|
15.6 |
Changes in constitution or reorganisation of the Lender
|
15.7 |
Securitisation
|
15.8 |
Lending Office
|
16. |
MISCELLANEOUS
|
16.1 |
Cumulative Remedies
|
16.2 |
16.2 No implied waivers
|
16.3 |
Integration of Terms
|
16.4 |
Invalidity of Terms
|
16.5 |
Amendments
|
16.6 |
Inconsistency of Terms
|
16.7 |
Language and genuineness of documents
|
|
(a) |
Language
: All certificates, instruments and other documents to be
delivered under or supplied in connection with this Agreement or any of the other Security Documents shall be in the English language.
|
|
(b) |
Certification of documents
: Any copies of documents delivered to the
Lender shall be duly certified as true, complete and accurate copies by appropriate authorities or legal counsel practicing in Greece or otherwise as it will be acceptable to the Lender at the sole discretion of the Lender.
|
|
(c) |
Certification of signature
: Signatures on Board or shareholder
resolutions, Secretary's certificates and any other documents are, at the discretion of the Lender, to be verified for their genuineness by appropriate Consul or other
|
16.8 |
Counterparts
|
16.9 |
Confidentiality
|
|
(a) |
Each of the parties hereto agrees and undertakes to keep confidential any documentation and any confidential information concerning the business, affairs,
directors or employees of the other which comes into its possession during this Agreement and not to use any such documentation, information for any purpose other than for which it was provided.
|
|
(b) |
The Borrower acknowledges and accepts that the Lender may be required by law to disclose information and deliver documentation relating to the Borrower and the
transactions and matters in relation to this Agreement and/or the other Security Documents to governmental or regulatory agencies and authorities.
|
|
(c) |
The Borrower acknowledges and accepts that in case of occurrence of any of the Events of Default the Lender may disclose information and deliver documentation
relating to the Borrower and the transactions and matters in relation to this Agreement and/or the other Security Documents to third parties to the extend that this is necessary for the enforcement or the contemplation of enforcement of
the Lender's rights or for any other purpose for which in the opinion of the Lender, such disclosure should be useful or appropriate for the interests of the Lender or otherwise and the Borrower expressly authorises any such disclosure
and delivery.
|
|
(d) |
The Borrower acknowledges and accepts that the Lender may be prohibited or it may be inappropriate for the Lender to disclose information to the Borrower by
reason of law or duties of confidentiality owed or to be owed to other persons.
|
16.10 |
Process Agent in Greece
|
17. |
COMMUNICATIONS
|
17.1 |
Notices and communications
|
|
(a) |
every such notice in the case of a letter shall be in writing delivered personally or be first-class prepaid letter, or shall be served through a process server
or subject to Clause 10.9 (
Communications Indemnity
) by fax or electronic mail;
|
|
(b) |
be deemed to have been received, subject as otherwise provided in this Agreement or the relevant Finance Document, in the case of a letter, when delivered
personally or five (5) days after it has been put in to the post and, in the case of a facsimile transmission or other means of telecommunication in permanent written form, at the time of despatch (
provided that
if the date of despatch is not a business day in the country of the addressee or if the time of despatch is after the close of business in the country of the
addressee it shall be deemed to have been received at the opening of business on the next such business day); and
|
|
(c) |
be sent:
|
|
(i) |
if to be sent to any Security Party:
|
|
(ii) |
to the Lender at:
|
17.2 |
Illegible notices
|
17.3 |
Valid notices
|
|
(a) |
the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer
any significant loss or prejudice; or
|
|
(b) |
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or
missing particulars should have been.
|
17.4 |
Meaning of "notice"
|
18. |
GOVERNING LAW AND JURISDICTION
|
18.1 |
18.1 Law
|
|
(a) |
Applicable Law
: This Agreement and any non-contractual obligations
connected with it shall be governed by and construed in accordance with English Law.
|
|
(b) |
Enforcement in Greece
: For the purposes of enforcement in Greece, it
is hereby expressly agreed that English law as the governing law of this
|
18.2 |
Jurisdiction
|
|
(a) |
Exclusive English jurisdiction
: The courts of England have exclusive
jurisdiction to settle any dispute arising out of or in connection with this Agreement or any non-contractual obligations connected with it (including a dispute regarding the existence, validity or termination of this Agreement) (a "
Dispute
"). The Borrower irrevocably and unconditionally submits to the jurisdiction of such courts.
|
|
(b) |
Waiver
: The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary and waives any objections to the inconvenience of England as a forum.
|
|
(c) |
Choice of forum for the exclusive benefit of the Lender
: This Clause
18.2 is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent
proceedings in any number of jurisdictions.
|
18.3 |
Process Agent for English Proceedings
|
|
(a) |
the Borrower hereby agrees and undertakes to maintain a Process Agent for English Proceedings throughout the Security Period and hereby agrees that in the event
that if any Process Agent for English Proceedings is unable for any reason to act as agent for service of process, the Borrower must immediately (and in any event within ten (10) days of such event taking place) appoint another agent on
terms acceptable to the Lender. Failing this, the Lender may appoint for this purpose a substitute Process Agent for English Proceedings and the Lender is hereby irrevocably authorised to effect such appointment on Borrower's behalf.
The appointment of such Process Agent for English Proceedings shall be valid and binding from the date notice of such appointment is given by the Lender to the Borrower in accordance with Clause 17.1 (
Notices and communications
); and
|
|
(b) |
the Borrower hereby agrees that failure by a Process Agent for English Proceedings to notify the Borrower of the process will not invalidate the proceedings
concerned.
|
18.4 |
Lender's rights unaffected
|
18.5 |
Proceedings in any other country
|
18.6 |
Third Party rights
|
18.7 |
Meaning of "proceedings"
|
To: |
ALPHA BANK A.E.
,
93 Akti Miaouli, Piraeus, Greece (the " Lender ") |
(a) |
no event or circumstance has occurred and is continuing which constitutes a Default;
|
(b) |
the representations and warranties contained in Clause 7 of the Loan Agreement are true and correct at the date hereof as if made with respect to the facts and
circumstances existing at such date;
|
(c) |
the borrowing to be effected by the drawdown of the Commitment is within our corporate powers, has been validly authorised by appropriate corporate action and
will not cause any limit on our borrowings (whether imposed by statute, regulation, agreement or otherwise) to be exceeded; and
|
(d) |
there has been no material adverse change in our financial position from that described by us to the Lender in the negotiation of the Loan Agreement.
|
For and on behalf of
PCH DREAMING INC . |
By:
|
||||
Name:
|
||||
Title:
Attorney-in-fact
|
(a) |
Constitutional documents
|
(b) |
Corporate authorisations
|
|
(i) |
being true and correct;
|
|
(ii) |
being duly passed at meetings of the directors of such Security Party and of the shareholders of such Security Party each duly convened and held;
|
|
(iii) |
not having been amended, modified or revoked;
|
|
(iv) |
being in full force and effect; and
|
|
(v) |
together with originals or certified copies of any powers of attorney issued by any Security Party pursuant to such resolutions;
|
(c) |
Certificate of incumbency
|
(d) |
Borrower's consents and approvals
|
(e) |
Security Parties' process agents
|
(f) |
Know your customer and money laundering compliance
|
(g) |
Contract
|
(h) |
Share certificates
|
(i) |
Shareholding
|
(a) |
Drawdown notice
|
(b) |
Conditions precedent
|
(c) |
Approval of Contract and Refund Guarantee
|
(d) |
No claim
|
(e) |
No variations to Contract
|
(f) |
No variations to MOA
|
(g) |
Collateral Vessel's conditions
|
|
(i) |
Registration and Encumbrances
|
|
(ii) |
Classification
|
|
(iii) |
Insurance
|
(h) |
No claim
|
(i) |
Collateral Mortgage
|
(j) |
Beneficial ownership
|
(k) |
Invoice and receipt
|
(l) |
Refund Guarantee and Refund Guarantee Consent and
Acknowledgement
|
|
(i) |
the original of the Refund Guarantee has been delivered to the Lender;
|
|
(ii) |
the Refund Guarantee Assignment Consent and Acknowledgment duly
|
|
(iii) |
a legal opinion by special legal advisers appointed by the Lender on matters of Singapore law to the Lender, in relation to the Refund Guarantee and the Refund
Guarantee Consent and Acknowledgement referred to above, in form and substance satisfactory to the Lender in its discretion;
|
(m) |
Contract Assignment and Acknowledgement
|
(n) |
Security Documents, letters and other documents
|
(o) |
Notices of assignment
|
(p) |
Acknowledgement of Receipt
|
(q) |
Security Parties' process agents
|
(r) |
Collateral Mortgage registration
|
(s) |
Management Agreement
|
(t) |
ISM Code and ISPS Code
|
(u) |
Insurers confirmations
|
(v) |
Insurance opinion
|
(w) |
Representations and warranties
|
(x) |
No Event of Default
|
(y) |
No change
|
(z) |
No Market disruption Event
|
(aa) |
Fees and commissions
|
(bb) |
Cargill purchase of the Newbuilding Vessel
|
(cc) |
Borrower's equity
|
(dd) |
Legal
opinions
|
(ee) |
Further
opinions
|
(ff) |
Acknowledgement of receipt
|
(gg) |
Further conditions precedent
|
To:
|
[
P&I Club
]
[•] [•] |
From: |
ECO
SEVEN INC
.
of the Marshall Islands, c/o Central Mare Inc., 1, Vassilissis Sofias Str. & Meg. Alexandrou Str., Maroussi, Attica, Greece, |
Attention:
|
[Chief Financial Officer] |
Andreas Louka
|
|||
Attorney-in-fact
|
|||
For and on behalf of
PCH DREAMING INC . |
THE BORROWER
|
SIGNED by
|
)
|
|||
Mr. Andreas Louka
|
)
|
|||
for and on behalf of
|
)
|
|||
PCH DREAMING INC.
,
|
)
|
|||
of the Marshall Islands
|
)
|
/s/ Andreas Louka
|
||
in the presence of:
|
)
|
Attorney-in-fact
|
Witness:
|
/s/ Lilian Kouleri
|
|||
Name:
L
ilian Kouleri
|
||||
Address:
13 Defteras Merarchias Street
Piraeus, Greece
|
||||
Occupation:
A
ttorney-at-law
|
THE LENDER
|
SIGNED by
|
)
|
||||
Mr. Konstantinos Flokos and
Mrs. Evangelia Makri |
)
) |
/s/ Konstantinos Flokos |
|||
for and on behalf of
|
)
|
||||
ALPHA BANK A.E.
,
|
)
|
/s/ Evangelia Makri
|
|
||
in the presence of:
|
)
|
Attorney-in-fact
|
Witness:
|
/s/ Lilian Kouleri
|
|||
Name:
L
ilian Kouleri
|
||||
Address:
13 Defteras Merarchias Street
Piraeus, Greece
|
||||
Occupation:
A
ttorney-at-law
|
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:
2019
|
Builder/Yard:
Hyundai
Samho Heavy Industries Co., Ltd.
|
1.
|
Purchase Price
–
See Clause 19
|
|
|
2.
|
Deposit – See Clause 19
|
|
|
||
|
|
|
(ii)
|
|
|
|
||
3.
|
Payment – See Clause 19
|
|
|
||
|
|
|
|
|
|
4.
|
Inspection – Intentionally omitted.
|
|
(
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
5.
|
Time and place of delivery and notices
|
|
(a)
The
Vessel shall be delivered
at the Builder’s shipyard in South Korea, safely afloat at a quay.
|
||
|
||
|
||
(b)
The Sellers
|
||
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 e
ither cancelling
this Agreement in accordance with
Clause 14
(Sellers’ Default) within three (3) B
usiness
|
||
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
a Total Loss
|
||
6.
|
Divers Inspection / Drydocking – Intentionally omitted.
|
|
|
||
|
|
|
|
|
|
|
|
||
|
|
|
|
||
|
||
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
||
7.
|
Spares, bunkers and other items
|
|
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on shore. All
spare parts and spare equipment including spare tail-end shaft(s) and/or
|
spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of
|
||
|
||
Items on board at the time of
delivery
|
||
The Buyers shall take over remaining
bunkers and unused lubricating and hydraulic oils
and greases in
storage tanks and unopened drums
without extra cost
|
||
|
||
|
||
|
||
|
||
|
||
|
||
8.
|
Documentation – See also Clause 20
|
|
The place
of closing:
At the Builder’s Yard
|
||
(a)
In exchange for payment of the Purchase Price the Sellers shall provide the Buyers with the following delivery
documents:
|
||
(i)
|
Legal Bill(s) of Sale in a form recordable in the Buyers’ Nominated Flag State, transferring title of the Vessel
and stating that the Vessel is free from all mortgages, encumbrances and
|
|
(ii)
|
Evidence that all necessary corporate, shareholder and other action has been taken by the Sellers to authorise the
execution, delivery and performance of this Agreement;
|
|
(iii)
|
Power of Attorney of the Sellers appointing one or more representatives to act on behalf of the Sellers in the
performance of this Agreement, duly notarially attested and legalised or apostilled (as appropriate);
|
|
(iv)
|
Certificate or Transcript of Registry issued by the competent authorities of the flag state on the date of delivery
evidencing the Sellers’ ownership of the Vessel and that the Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by such authority to the closing meeting with the original to be sent to the Buyers as soon as
possible after delivery of the Vessel;
|
|
(v)
|
Declaration of Class or (depending on the Classification Society) a Class Maintenance Certificate issued within
three (3) Banking Days prior to delivery confirming that the Vessel is in Class free of condition/recommendation;
|
|
|
|
|
|
||
|
|
|
(vi
|
Commercial Invoice for the Vessel;
|
|
(vii
|
Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases
(which will be taken over by the Buyers at no extra cost in accordance with Clause 7)
;
|
|
|
|
|
(
|
|
|
(ix
|
The Sellers’ letter of confirmation that to the best of their knowledge, the Vessel is not black listed by any
nation or international organisation
|
|
The items set out in this Clause 8(a) are inserted for the sole benefit of the Buyers and may be
waived in whole or in part with or without conditions by the Buyers.
|
||
(b)
At the
time delivery the Buyers shall provide the Sellers with:
|
||
(i)
|
Evidence that all necessary corporate, shareholder and other action has been taken by the Buyers to authorise the
execution, delivery and performance of this Agreement; and
|
|
(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.
|
|
(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 for review and comment by the other party not later than
one(1) Business Day (or such later date as the Buyers may agree) prior to the notice to be sent to the Buyers from the Sellers five (5) Business Days before delivery in accordance with
Vessel’s intended date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) (the “Scheduled Delivery date”)
|
||
(e)
Concurrent
with
|
||
(f)
Other
technical documentation which may be in the Sellers’ possession shall promptly after delivery be forwarded to the Buyers at
Sellers’
|
||
(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
(the “PDA”)
.
|
||
9.
|
Encumbrances
|
|
The Sellers warrant that the Vessel, at the time of
|
||
to Port State or other administrative detentions. The Sellers hereby undertake to indemnify the Buyers against all
consequences of claims made against the Vessel which have been incurred prior to the time of
|
|
10.
|
Taxes, fees and expenses
|
Any taxes, fees and expenses in connection with the
purchase
of the Vessel
and registration in the Buyers’ Nominated Flag State
|
|
11.
|
Condition on delivery See also Clause 34 of the Bareboat Charter
|
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 was at the time of
Delivery
|
|
|
|
|
|
|
|
12.
|
Name/markings – Intentionally omitted
|
|
|
13.
|
Buyers’ default – Intentionally omitted
|
|
|
|
|
14.
|
Sellers’ default – See also Clause 19(c) and Clauses 33.1, 48 and 48A of the Bareboat Charter
|
Should 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.
|
|
Without prejudice
to Clause 19(c) and Clauses 33.1, 48 and 48A of the Bareboat Charter and any other rights the Buyer may have under the Leasing Documents, at law or otherwise,
|
|
15.
|
Buyers’ representatives – Intentionally omitted
|
|
16.
|
Law and Arbitration – See Clause 27
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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:
c/o CMB Financial Leasing Co., Ltd.
Address: 21/F, China Merchants Bank Building, No. 1088, Lujiazui Ring Road, Shanghai, China
Email: x
_
man@cmbchina.com
Tel: +8621 61061737
Fax: +8621 61059911*1737
|
|
For the Sellers:
c/o Central Mare, Inc.
Address: 1, Vas. Sofias Street & Meg. Alexandrou,
151 24 Maroussi, Greece
Email: atsirikos@topships.org
Tel: +302108128180
Fax: +302108056441
|
|
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.
|
|
/s/ Andreas Louka
|
/s/ Zhou Ling
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
|
Name: Andreas Louka
|
Name: Zhou Ling
|
|
Title: Attorney-in-fact
|
Title: Director
|
|
|
(i) |
the Buyers shall pay an amount equivalent to the Advance Charterhire to the Sellers on the Delivery Date provided that such amount shall be set off against
the amount of the Advance Charterhire payable to the Buyers as owners under the terms of the Bareboat Charter on the Delivery Date, with the result that the Buyers shall be deemed to have paid such sum to the Sellers forthwith and the
Sellers be deemed to have paid the amount of Advance Charterhire to the Buyers pursuant to the terms of the Bareboat Charter; and
|
|
(ii) |
The Buyers shall pay the balance of the Purchase Price to the Sellers (subject to the terms of sub-paragraph (b) below) by way of the following nine(9)
chronological instalments:
|
Instalment
|
Amount
|
Payment Date
|
||
1st
|
$2,742,135 (being an amount equal to the first instalment of the Contract Price or, if applicable, the Final
Contract Price payable to the Builder under Article X paragraph 2(a) of the Contract, and known as the “
First Instalment
”).
|
Within five (5) Business Days from the date the Buyers confirming receipt of the Refund Guarantee (in form and
substance satisfactory to the Buyers)
|
||
2nd
|
$2,742,135(being an amount equal to the second instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(b) of the Contract, and known as the “
Second Instalment
”)
|
on the day falling (3) months from the Sellers’ payment of the First Pre-delivery Upfront Charterhire
Instalment as charterers under the Bareboat Charter
|
||
3rd
|
$2,742,135(being an amount equal to the third instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(c) of the Contract, and known as the “
Third Instalment
”)
|
on the earlier of (i) the day falling (5) months from the Sellers’ payment of the First Pre-delivery Upfront
Charterhire Instalment as charterers under the Bareboat Charter; and (ii) the Delivery Date
|
||
4th
|
$2,742,135 (being an amount equal to the fourth instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph
|
on the earlier of (i) the day falling eight (8) months from the Sellers’ payment of the First Pre-delivery
|
2(d) of the Contract and known as the “
Fourth Instalment
”)
|
Upfront Charterhire Instalment as charterers under the Bareboat Charter; and (ii) the Delivery Date
|
|||
5th
|
$2,742,135 (being an amount equal to the fifth instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(e) of the Contract and known as the “
Fifth Instalment
”)
|
on the earlier of (i) the day falling eleven (11) months from the Sellers’ payment of the First Pre-delivery
Upfront Charterhire Instalment as charterers under the Bareboat Charter; and (ii) the Delivery Date
|
||
6th
|
$2,742,135 (being an amount equal to the sixth instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(f) of the Contract and known as the “
Sixth Instalment
”)
|
Within two (2) months of the Delivery Date.
|
||
7th
|
$5,484,270 (being an amount equal to the seventh instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(g) of the Contract and known as the “
Seventh Instalment
”)
|
Within one (1) month of the Delivery Date.
|
||
8th
|
$3,000,000 (being an amount equal to the eighth instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(h) of the Contract and known as the “
Eighth Instalment
”)
|
No later than the day falling (15) days prior to the Delivery Date.
|
||
9th
|
An amount in Dollars equal to the Final Instalment (being an amount equal to the last instalment of the
Contract Price (disregarding any adjustment pursuant to the terms of the Contract) payable to the Builder under Article X paragraph 2(i) of the Contract minus the amount equal to the Advance Charterhire and is also the “
Final Instalment
” as defined herein)
|
On the Delivery Date.
|
|
(i) |
with respect to the First Instalment, the Second Instalment, the Third Instalment, the Fourth Instalment and a portion (in an amount equal to the Fifth
Pre-delivery Upfront Charterhire Instalment payable by the Sellers as charterers under the Bareboat Charter) of the Fifth Instalment or the Sixth Instalment (whichever payment occurs earlier between these two Instalments) shall be set
off, against respectively, against the First Pre-delivery Upfront Charterhire Instalment, the Second Pre-delivery Upfront Charterhire Instalment, the Third Pre-delivery
|
|
(ii) |
subject to sub-paragraph (iii) below, with respect to the Fifth Instalment or the Sixth Instalment (whichever payment occurs earlier and netting the portion
set-off by the Fifth Pre-delivery Upfront Charterhire Instalment as per sub-paragraph (i) above), the Fifth Instalment or the Sixth Instalment (whichever payment occurs later), the Seventh Instalment and the Eighth Instalment the
Buyers may directly pay the amount of such Instalments (or any portion of any such Instalment) to the Builder on the relevant Payment Date in accordance with the requirements set out under Article X paragraph 4(a)(i), of the Contract.
The Sellers acknowledge that any such payment (whether in part or in whole) by the Buyers of such Instalment (or any portion of such Instalment) directly to the Builder shall be deemed to satisfy the Buyers’ obligation to pay the same
to the Sellers under this Clause 19 (
Payment of Purchase Price by Buyer
); and
|
|
(iii) |
with respect to the Final Instalment, the Buyers shall remit by telegraphic transfer the amount of the Final Instalment to the Builder’s Bank in accordance
with the manner set out under Article X paragraph 4(a)(ii) of the Contract no later than three (3) Business Days prior to the Scheduled Delivery Date (or as otherwise agreed) (the date on which the Buyers remit the Final Instalment,
the “
Preposition Date
”) and with the release of the Final Instalment to the Builder governed by the terms of a Conditional Payment
Instruction, which shall, inter alia, permit the release of the Final Instalment to the Builder only upon presentation within fifteen 15 banking days (as defined in the Contract) by the Builder of (A) a protocol of acceptance and
delivery duly signed by authorised representatives of the Builder and the Sellers; and (B) a protocol of acceptance and delivery duly signed by authorised representatives of the Sellers and the Buyers and (if applicable) the Buyers’
financiers.
provided that in respect of each of sub-paragraphs(iii) and(iii)above, the relevant instalment (or where relevant, portion of) of the Purchase Price shall
only be payable by the Buyers if the relevant conditions precedent set out under Clause 20 (
Documentation
) are fulfilled.
|
|
(A) |
in the event that the Vessel is delivered to the Buyers on the Delivery Date, accrue as of the Preposition Date until the Delivery Date (both dates
inclusive); and
|
|
(B) |
in the event that the Vessel is not delivered to the Buyers on the Delivery Date, accrue as of the Preposition Date until the amount of the Final Instalment
prepositioned or paid by the Buyers is returned by the Sellers’ Bank to the Buyers in accordance with the Conditional Payment Instruction (both dates inclusive).
|
(c) |
Subject to clause 6 of the Pre-delivery Assignment and clauses 33, 40, 48 and 48A of the Bareboat Charter, if a Termination Event or events described in
clause 48A.1 or 48A.2 or 48A.3 of the Bareboat Charter occurs prior to Delivery then:
|
|
(i) |
the Buyers shall immediately be released from all obligations under this Agreement;
|
|
(ii) |
upon receipt of the Pre-delivery Purchase Price by the Buyers pursuant to the terms of the Bareboat Charter this Agreement shall immediately terminate and
be cancelled without the need for the Buyers or the Sellers to take any action whatsoever provided that the Buyers shall be entitled to retain all fees paid by the Sellers under the Leasing Documents and such payment shall not be
construed as a penalty but shall represent an agreed estimate of the loss and damage suffered by the Buyers in entering into this Agreement upon the terms and conditions contained herein and shall therefore be paid as compensation to
the Buyers; and
|
|
(iii) |
the Sellers shall be obliged to refund in full to the Buyers, all Instalments paid by the Buyers under this Agreement, as at the date the Termination Event
or the relevant event described in Clause 48A.1 or 48A.2 or 48A.3 of the Bareboat Charter (as the case may be) occurs, provided that:
|
|
(aa) |
such obligation of the Sellers shall be waived by the Buyers only upon full payment of the Pre-delivery Purchase Price by the Sellers (in their capacity as
bareboat charterers) to the Buyers (in their capacity as owners) under the Bareboat Charter in accordance with its terms;
|
|
(bb) |
if the Buyers receive any moneys from the Builder or the Refund Guarantor pursuant to the terms of any Leasing Document, such amount received by the Buyers
shall be set off against the Sellers’ obligations to refund the Instalments to the Buyers under this paragraph (iii) and if such moneys received by the Buyers exceed the Pre-delivery Purchase Price, then any excess of such moneys
received by the Buyers over the Pre-delivery Purchase Price shall be paid over to the Sellers,
|
(d) |
For the avoidance of doubt, any difference between the Purchase Price and the outstanding Contract Price or, if applicable, Final Contract Price shall be
for the account of the Sellers (such difference, the “
Final Outstanding Sellers’ Amount
”).
|
(a) |
the relevant Payment Date falling within the Availability Period;
|
(b) |
the conditions precedent set out in Schedule 1 Part A being fulfilled to the satisfaction of the Buyers on or prior to the date of this Agreement;
|
(c) |
in respect of the Fifth Instalment (netting the portion set-off by the Fifth Pre-delivery Upfront Charterhire Instalment as per clause 19(b)(i) above), the
conditions precedent set out in Schedule 1 Part B being fulfilled to the satisfaction of the Buyers on or prior to the date of the Buyers’ payment of the Fifth Instalment;
|
(d) |
in respect of the Sixth Instalment, the conditions precedent set out in Schedule 1 Part C being fulfilled to the satisfaction of the Buyers on or prior to
the date of the Buyers’ payment of the Sixth Instalment;
|
(e) |
in respect of the Seventh Instalment, the conditions precedent set out in Schedule 1 Part D being fulfilled to the satisfaction of the Buyers on or prior to
the date of the Buyers’ payment of the Seventh Instalment;
|
(f) |
in respect of the Eighth Instalment, the conditions precedent set out in Schedule 1 Part E being fulfilled to the satisfaction of the Buyers on or prior to
the date of the Buyers’ payment of the Eighth Instalment; and
|
(g) |
in respect of the Final Instalment, the conditions precedent set out in Schedule 1 Part F being fulfilled to the satisfaction of the Buyers on or prior to
the date of the Buyers’ remittance of the Final Instalment in accordance with Clause 19(b)(iii) or, where indicated in Schedule 1 Part G, will, in the opinion of the Buyers, satisfy on or prior to the Delivery Date.
|
(a) |
The Sellers shall pay such amounts to the Buyers in respect of all costs, claims, expenses, liabilities, losses and fees (including but not limited to any
legal fees, vessel registration and tonnage fees) suffered or incurred by or imposed on the Buyers arising from this Agreement or in connection with the Delivery, registration and purchase of the Vessel by the Buyers whether prior to,
during or after termination of this Agreement and whether or not the Vessel is in the possession of or the control of the Sellers or otherwise.
|
(b) |
The Sellers shall indemnify and compensate the Buyers against all costs, claims, expenses, liabilities, losses, damages and fees (including but not limited
to any legal fees) arising due to any default, improper behaviour and/or negligence of the Sellers under any Leasing Documents and Shipbuilding Documents.
|
(c) |
Notwithstanding anything to the contrary herein, the indemnities provided by the Sellers shall be provided in favour of the Buyers and shall continue in
full force and effect notwithstanding any breach of the terms of this Agreement or termination of this Agreement pursuant to the terms hereof.
|
(a) |
they
|
|
(i) |
are not a Restricted Person;
|
|
(ii) |
are not owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Restricted Person;
|
|
(iii) |
do not own or control a Restricted Person; or
|
|
(iv) |
do not have a Restricted Person serving as a director, officer or, to the best of their knowledge, employee; and
|
(b) |
no proceeds of the Purchase Price shall be made available, directly or indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise
directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
(a) |
prevent and detect incidences of bribery and corruption, money laundering and terrorism financing; and
|
(b) |
promote and achieve compliance with Anti-Money Laundering Laws including, but not limited to, ensuring thorough and accurate books and records, and
utilization of commercially reasonable efforts to ensure that Affiliates acting on behalf of the Sellers shall act in compliance with Anti-Money Laundering Laws.
|
(a) |
Subject to the Pre-delivery Assignment, the Sellers shall keep and duly exercise where appropriate in accordance with the Contract the Sellers’ rights as
buyer under the Contract in relation to:
|
|
(i) |
approval of plans and drawings;
|
|
(ii) |
supervision of the construction of the Vessel; and
|
|
(iii) |
attendance of the tests and sea trial,
|
(b) |
Any changes and modifications made or requested by the Sellers as buyer under the Contract in respect of the Vessel shall be made or requested with the
prior written
|
(a) |
This Agreement and any non-contractual obligations arising under or in connection with it, shall be governed by and construed in accordance with English
law.
|
(b) |
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
”)) shall be referred to and finally
resolved by 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 25. 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.
|
(c) |
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 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 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 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 he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
|
(d) |
Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated
above.
|
(e) |
The language of the arbitration shall be English.
|
1.1 |
A copy of the constitutional documents and statutory registers of each Relevant Party (other than the Refund Guarantor, the BP Charterer, the Builder and
each Approved Manager).
|
1.2 |
A copy of the resolutions of the board of directors (or equivalent) of each Relevant Party (other than the Refund Guarantor, the BP Charterer, the Builder
and each Approved Manager):
|
(a) |
approving the terms of, and the transactions contemplated by, the Leasing Documents to which it is a party and resolving that it execute the Leasing
Documents to which it is a party;
|
(b) |
authorizing a specified person or persons to execute the Leasing Documents to which it is a party on its behalf; and
|
(c) |
authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under, or
in connection with, the Leasing Documents to which it is a party.
|
1.3 |
If applicable, an original of the power of attorney of each Relevant Party (other than the Refund Guarantor, the BP Charterer, the Builder and each
Approved Manager) authorizing a specified person or persons to execute the Leasing Documents to which it is a party.
|
1.4 |
A specimen of the signature of each person authorized by the resolution referred to in paragraph 1.2 above.
|
1.5 |
A certificate of a director, officer or secretary (as appropriate) of each Relevant Party (other than the Refund Guarantor, the BP Charterer, the Builder
and each Approved Manager) certifying that each copy document relating to it specified in this Schedule 1 Part A is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2.1 |
A duly
executed copy of the Contract together with any amendments thereto
.
|
2.2 |
Duly executed copies of each Leasing Document (other than the General Assignment, the Quiet Enjoyment Agreement and the Manager’s Undertakings provided
that each such Leasing Document shall then be in agreed form) and of each document to be delivered under it and evidence of their delivery within the timing prescribed under it.
|
2.3 |
A duly executed copy of the BP Charter and any amendments thereto in form and substance satisfactory to the Buyers.
|
2.4 |
A copy of any other consents, approvals, authorization or other document, opinion or assurance which the Buyers consider to be reasonably desirable in
connection with the entry into and performance of the transactions contemplated by the BP Charter or for the validity and enforceability of the BP Charter.
|
2.5 |
Receipt by the Buyers of the Refund Guarantee together with any amendments thereto, each in form and substance satisfactory to the Buyers and not having
been revoked or purported to be revoked as of the Payment Date of the First Instalment and having a validity period expiring no earlier than the Cancelling Date.
|
2.6 |
Evidence that the Operating Account has been opened
.
|
2.7 |
Such documentary evidence as the Buyers may reasonably require in relation to the due authorization and execution by the Builder of the Contract and/or by
the Refund Guarantor of the Refund Guarantee.
|
2.1 |
A copy certified as true by an officer of the Sellers of the notification from the Builder demanding the payment of the fifth instalment of the Contract
Price pursuant to Article X paragraph 3 of the Contract.
|
3.1 |
Evidence satisfactory to the Buyers that the Sellers have paid and the Builder has received an amount equivalent to the sum of the First Pre-delivery
Upfront Charterhire Instalment, the Second Pre-delivery Upfront Charterhire Instalment, the Third Pre-delivery Upfront Charterhire Instalment, the Fourth Pre-delivery Upfront Charterhire Instalment and the Fifth Pre-delivery Upfront
Charterhire Instalment.
|
3.2 |
Evidence satisfactory to the Buyers that any interest accrued from the delayed payment by the Sellers under the Contract have been settled.
|
5.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
5.2 |
Documentary evidence that the Security Interests intended to be created by each of the Security Documents (other than the General Assignment and the
Managers’ Undertakings) have been duly perfected under applicable law.
|
5.3 |
The Buyers’ receipt of full payment of (i) the First Instalment Arrangement Fee Amount (if the Fifth Instalment is payable earlier than the Sixth
Instalment); and (ii) all accrued Commitment Fee which are outstanding and payable by the Sellers to the Buyers.
|
5.4 |
The Buyers being satisfied with the progress of the construction and conditions of the Vessel upon inspection and/or survey of the Vessel.
|
2.1 |
A copy certified as true by an officer of the Sellers of the notification from the Builder demanding the payment of the sixth instalment of the Contract
Price pursuant to Article X paragraph 3 of the Contract.
|
3.1 |
In
the event where the Sixth Instalment occurs earlier than the Fifth Instalment:
|
(a) |
Evidence satisfactory to the Buyers that the Sellers have paid and the Builder has received an amount equivalent to the sum of the First Pre-delivery
Upfront Charterhire Instalment, the Second Pre-delivery Upfront Charterhire Instalment, the Third Pre-delivery Upfront Charterhire Instalment, the Fourth Pre-delivery Upfront Charterhire Instalment and the Fifth Pre-delivery Upfront
Charterhire Instalment.
|
(b) |
Evidence satisfactory to the Buyers that any interest accrued from the delayed payment by the Sellers under the Contract have been settled.
|
5.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
5.2 |
The Buyers’ receipt of full payment of (i) the First Instalment Arrangement Fee Amount (if the Sixth Instalment is payable earlier than the Fifth
Instalment); and (ii) all accrued Commitment Fee which is outstanding and payable by the Sellers to the Buyers.
|
5.3 |
In the event where the Sixth Instalment occurs earlier than the Fifth Instalment, documentary evidence that the Security Interests intended to be created by
each of the Security Documents (other than the General Assignment and the Managers’ Undertakings) have been duly perfected under applicable law.
|
4.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
4.2 |
The Buyers’ receipt of full payment of all accrued Commitment Fee which are outstanding and payable by the Sellers to the Buyers.
|
4.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
4.2 |
The Buyers’ receipt of full payment of all accrued Commitment Fee which are outstanding and payable by the Sellers to the Buyers.
|
2.1 |
Notices of Delivery issued by the Sellers to the Buyers under Clause 5 of this
Agreement
.
|
2.2 |
A copy certified as true by an officer of the Sellers of the notification from the Builder demanding the payment of the last instalment of the Contract
Price (or, if applicable, the Final Contract Price) pursuant to Article X paragraph 3 of the Contract.
|
2.3 |
Duly executed but undated copies of the General Assignment, the Quiet Enjoyment Agreement and each Manager’s Undertaking and of each document to be
delivered under it within the timing prescribed under it.
|
5.1 |
A signed opinion from an independent insurance consultant acceptable to the Buyers on such matters relating to the Insurances as the Buyers may require
(obtained at the costs of the Sellers).
|
5.2 |
Signed insurance policies or documents from the relevant approved brokers, insurance companies and/or underwriters, war risks and protection and indemnity
risks associations confirming that as of the Delivery Date the insurances are placed in accordance with the provisions of the Bareboat Charter and all requirements of the Bareboat Charter in respect of Insurances have been complied
with.
|
7.1 |
Valuation reports of the Vessel for determining the First Market Value of the Vessel, provided at the costs of the Sellers and addressed to the Buyers and
dated not earlier than fifteen (15) days before the Scheduled Delivery Date.
|
7.2 |
A survey report in form and substance satisfactory to the Buyers (in its sole discretion) (including without limitation the quality and physical conditions
of the Vessel) of the Vessel by the surveyor appointed by the Buyers and at the Sellers’ costs.
|
8.1 |
A copy of the valid and current Document of Compliance in respect of the Approved Manager.
|
8.2 |
A copy of the valid and current Document of Compliance for the Carriage of Dangerous Goods in respect of the Vessel (if required by the Buyers).
|
8.3 |
A copy of the Declaration of Designated Person form under the ISM Code of the Approved Manager in respect of the Vessel.
|
9.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
9.2 |
The Buyers’ receipt of full payment of all accrued Commitment Fee which is outstanding and payable by the Sellers to the Buyers and the full Arrangement Fee
Amount.
|
9.3 |
Documents setting out the Specification (as defined under Article I of the Contract)] of the Vessel.
|
9.4 |
Any additional documents as may reasonably be required by the competent authorities of the Buyers’ Nominated Flag State for the purpose of the Buyers’
registration of the Vessel.
|
9.5 |
Copies of the Original Financial Statements certified true by an officer of the Sellers and the Guarantor respectively.
|
9.6 |
Evidence that all Pre-delivery Upfront Charterhire, fees, costs and expenses outstanding and payable from the Sellers to the Buyers pursuant to Clause 41 (
Fees and Expenses
) of the Bareboat Charter have been paid in full.
|
9.7 |
Such evidence relating to a Relevant Person as the Buyers may require for their (or their financiers) to be able to satisfy each of their “know your
customer” or similar identification procedures in relation to the transactions contemplated by the Pertinent Documents.
|
9.8 |
A copy of any other consents, approvals, authorization or other document, opinion or assurance which the Buyers consider to be reasonably desirable in
connection with the entry into and performance of the transactions contemplated by any of the Leasing Documents and the BP Charter or for the validity and enforceability of such document.
|
9.9 |
The Owners being satisfied that all conditions precedent for delivery of the Vessel to the BP Charterer under the BP Charter has been or will be satisfied
upon the Delivery Date and that the Vessel shall be delivered to the BP Charterer under the BP Charter on the Delivery Date.
|
9.10 |
Such other documents as the Buyers may reasonably require by giving the Sellers not less than three (3) Business Days’ prior written notice.
|
9.11 |
The Buyers’ being satisfied that the conditions precedent set out in Part A of Schedule 2 to the Bareboat Charter, have been, or will capable of being,
satisfied on the Delivery Date.
|
10.1 |
An unsigned legal opinion of Watson Farley & Williams, legal advisers to the Buyers on such matters on the laws of England and Hong Kong as may be
satisfactory to the Buyers.
|
10.2 |
An unsigned legal opinions by lawyers appointed by the Buyers on such matters on the laws of the Netherlands and the Marshal Islands and any other relevant
jurisdictions as may be satisfactory to the Buyers.
|
To:
|
Sea 103 Leasing Co. Limited
|
Date:
|
[
●
]
|
SELLERS
|
SIGNED
|
)
|
/s/ Andreas Louka | ||
By Andreas Louka
|
)
|
|||
As an attorney-in-fact
|
)
|
|||
for and on behalf of
|
)
|
|||
SOUTH CALIFORNIA INC.
|
)
|
|||
in the presence of:
|
)
|
|
||
)
|
||||
Witness' signature:
|
)
|
/s/ Alexandros Tsirikos
|
||
Witness' name:
|
)
|
Alexandros Tsirikos
|
||
Witness address:
|
)
|
12 N. Perizsi St, Athens, Greece
|
SIGNED
|
)
|
|
||
by)
|
|
|||
as an attorney-in-fact
|
)
|
|||
for and on behalf of
|
)
|
|||
SEA 103 LEASING CO., LIMITED
|
)
|
|||
in the presence of:
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)
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)
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Witness' signature:
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)
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/s/ Wang Wei
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Witness' name:
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)
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Wang Wei
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Witness address:
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)
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22F, China Mercahnts Bank Building, NO. 1088
Lujiazui Ring Road, Shanghai, China
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1. |
Definitions
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2. |
Charter Period
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3. |
Delivery
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4. |
Time for Delivery (See Clauses 32 and 34)
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5. |
Cancelling (See Clause 33)
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6. |
Trading Restrictions (See also Clauses 45.1(q), 45.1(r), 45.1(s))
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7. |
Surveys on Delivery and Redelivery
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8. |
Inspection (See Clause 46)
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9. |
Inventories, Oil and Stores See also Clause 34.7
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10. |
Maintenance and Operation
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(ii) |
New Class and Other Safety Requirements
- In the event of any
improvement, structural changes or new equipment becoming necessary for the continued operation of the Vessel by reason of new class requirements or by compulsory legislation
the Charterers shall ensure that the same are complied with and the time and costs of compliance shall be for the Charterers’ account.
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(iii) |
Financial Security
- The Charterers shall maintain financial
security or responsibility in respect of third party liabilities as required by any government, including federal, state or municipal or other division or authority thereof, to enable the Vessel, without penalty or charge, lawfully to
enter, remain at, or leave any port, place, territorial or contiguous waters of any country, state or municipality in performance of this Charter without any delay. This obligation shall apply whether or not such requirements have been
lawfully imposed by such government or division or authority thereof.
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11. |
Hire (See Clause 36)
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12. |
Mortgage See Clause 62.3
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13. |
Insurance and Repairs (See also Clause 38)
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14. |
Insurance, Repairs and Classification – intentionally omitted
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15. |
Redelivery See also Clause 40
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16. |
Non-Lien
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17. |
Indemnity (See Clauses 33.1, 36.11, 37.3, 38.15, 38.16, 38.18, 41, 52 and 54)
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18. |
Lien
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19. |
Salvage
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20. |
Wreck Removal
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21. |
General Average
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22. |
Assignment, Sub-Charter and Sale (See Clauses 45.1(p) and 62)
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23. |
Contracts of Carriage
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*) |
(a)
The Charterers are to procure that all
documents issued during the Charter Period evidencing the terms and conditions agreed in respect of carriage of goods shall contain a paramount clause incorporating any legislation relating to carrier's liability for cargo compulsorily
applicable in the trade; if no such legislation exists, the documents shall incorporate the Hague-Visby Rules. The documents shall also contain the New Jason Clause and the Both-to-Blame Collision Clause.
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24. |
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25. |
Requisition/Acquisition
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26. |
War
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(i) |
to comply with all orders, directions, recommendations or advice as to departure, arrival, routes, sailing in convoy, ports of call, stoppages, destinations,
discharge of cargo, delivery, or in any other way whatsoever, which are given by the Government of the Nation under whose flag the Vessel sails, or any other Government, body or group whatsoever acting with the power to compel
compliance with their orders or directions;
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(ii) |
to comply with the orders, directions or recommendations of any war risks underwriters who have the authority to give the same under the terms of the war
risks insurance;
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(iii) |
to comply with the terms of any resolution of the Security Council of the United Nations, any directives of the European Community, 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 Owners are subject, and to obey the orders and directions of those who are charged with their
enforcement.
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27. |
Commission – Intentionally omitted
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28. |
Termination (See Clauses 40 and 48)
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(2) Clause 13(a) |
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29. |
Repossession
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30. |
Dispute Resolution (See Clause 63)
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31. |
Notices (See Clause 43)
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OPTIONAL
PART |
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OPTIONAL
PART |
OPTIONAL
PART |
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32.1 |
For the avoidance of doubt, notwithstanding the fact that the Charter Period shall commence on the Delivery Date, this Charter shall be:
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(a) |
in full force and effect; and
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(b) |
valid, binding and enforceable against the parties hereto,
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33.1 |
Subject to Clause 48.3, if:
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(a) |
a Termination Event occurs prior to the delivery of the Vessel by the Charterers as sellers to the Owners as buyers under the MOA;
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(b) |
it becomes unlawful for the Owners (as buyers) to perform or comply with any or all of their obligations under the MOA or any of the obligations of the Owners
under the MOA are not or cease to be legal, valid, binding and enforceable; and/or
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(c) |
the MOA expires, is cancelled, terminated, rescinded or suspended or otherwise ceases to remain in full force and effect for any reason,
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(i) |
retain all fees paid by the Charterers pursuant to Clause 41 (and without prejudice to Clause 41 and if such fees have not been paid, the Charterers shall
forthwith pay such fees to the Owners); and
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(ii) |
any payment, reimbursement, indemnities provided for under Clause 41 (Fees and Expenses) and Clause 52 (Indemnities),
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34.1 |
The obligation of the Owners to charter the Vessel to the Charterers hereunder is subject to and conditional upon:
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(a) |
the delivery to and acceptance by the Charterers as buyers of the Vessel under the Contract and the delivery to and acceptance by the Owners as buyers of the
Vessel under the MOA;
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(b) |
no Potential Termination Event or Termination Event having occurred which is continuing from the date of this Charter to the last day of the Charter Period
(inclusive);
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(c) |
the representations and warranties contained in Clause 44 (
Representations
and Warranties
) being true and correct on the date hereof and each day thereafter until and including the last date of the Charter Period;
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(d) |
Delivery occurring on or before the Cancelling Date;
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(e) |
the Owners having received from the Charterers:
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(i) |
on or prior to the Delivery, the documents or evidence set out in Part A of Schedule 2 in form and substance satisfactory to them; and
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(ii) |
After the Delivery, the documents or evidence set out in Part B of Schedule 2 in form and substance satisfactory to them within the time periods set out
thereunder;
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34.2 |
The conditions precedent specified in Clause 34.1(b) are inserted for the sole benefit of the Owners and may be waived or deferred in whole or in part and
with or without conditions by the Owners.
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34.3 |
Upon the requirements of Clause 34.1 (
Delivery and Charter of
Vessel
) being fulfilled to the satisfaction of the Owners or waived (with or without conditions) by the Owners in their sole discretion, the Owners shall give notice thereof in writing to the Charterers.
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34.4 |
On (A) delivery to and acceptance by the Charterers as buyers of the Vessel from the Builder under the Contract; and (B) delivery to and acceptance by the
Owners as buyers of the Vessel from the Charterers as sellers under the MOA and subject to the provisions of this Clause, the Vessel shall be deemed to have been delivered to, and accepted without reservation by, the Charterers under
this Charter and the Charterers shall become and be entitled to the possession and use of the Vessel on and subject to the terms and conditions of this Charter.
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34.5 |
On Delivery, as evidence of the commencement of the Charter Period, the Charterers shall sign and deliver to the Owners, the Acceptance Certificate. Without
prejudice to this Clause, the Charterers shall be deemed to have accepted the Vessel under this Charter, and the commencement of the Charter Period having started, on Delivery even if, for whatever reason, the Acceptance Certificate is
not signed and/or the Charterers do not take actual possession of the Vessel at that time.
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34.6 |
Without prejudice to and notwithstanding the provisions of this Clause, the Charterers shall not be entitled for any reason whatsoever to refuse to accept
delivery of the Vessel under this Charter once the Vessel has been delivered to and accepted by the Owners from the Charterers under the MOA, and the Owners shall not be liable for any losses, costs or expenses whatsoever or howsoever
arising including without limitation, any loss of profit or any loss or otherwise:
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(a) |
resulting directly or indirectly from any defect or alleged defect in the Vessel (including but not limited to any deficiency in seaworthiness,
merchantability, classification, condition, design, quality, operation, performance, capacity or fitness for use or the eligibility of the Vessel for any particular trade or operation) or any failure of the Vessel; or
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(b) |
arising from any delay in the commencement of the Charter Period or any failure of the Charter Period to commence.
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34.7 |
The Owners shall not be obliged to deliver the Vessel to the Charterers with any bunkers and unused lubricating oils and greases in storage tanks and unopened
drums of the Vessel.
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35.1 |
Provided that the Charterers do not breach any terms of this Charter or any other Pertinent Document and subject to the provisions thereof, the Owners hereby
agree not to disturb or interfere with the Charterers’ lawful use, possession and quiet enjoyment of the Vessel during the Charter Period.
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36.1 |
In consideration of the Owners agreeing to charter the Vessel to the Charterers under this Charter and the Owners buying the Vessel from the Charterers under
the MOA at the request of the Charterers, the Charterers hereby irrevocably and unconditionally agree to pay to the Owners each Charterhire.
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36.2 |
The Charterers shall pay to the Owners an amount equivalent to the Advance Charterhire on the Delivery Date which amount shall be deemed paid on such date by
it setting off against the corresponding portion of the Purchase Price payable by the Owners as buyers to the Charterers as sellers under the MOA on the Delivery Date pursuant to the terms thereof.
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36.3 |
The Charterers shall pay to the Owners the Pre-delivery Upfront Charterhire in the following instalments and manners:
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(a) |
the first instalment (the “
First Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $2,742,135 which shall be paid on the same date the First Instalment is payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms
thereof. Such amount shall be deemed paid by it setting off against the First Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof;
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(b) |
the second instalment (the “
Second Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $2,742,135 which shall be paid on the same date the Second Instalment is payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms
thereof. Such amount shall be deemed paid by it setting off against the Second Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof;
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(c) |
the third instalment (the “
Third Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $2,742,135 which shall be payable on the same date the Third Instalment is payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms
thereof. Such amount shall be deemed paid by it setting off against the Third Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof;
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(d) |
the fourth instalment (the “
Fourth Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $2,742,135 which shall be payable on the same date the Fourth Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms
thereof. Such amount shall be deemed paid by it setting off against the Fourth Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof; and
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(e) |
the fifth instalment (the “
Fifth Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $600,000 which shall be payable on the earlier of (i) the day on which the Fifth Instalment is paid by the Owners as buyers under the MOA; and (ii) the day on which the Sixth
Instalment is paid by the Owners as buyers under the MOA. Such amount shall be deemed paid by it setting off against the corresponding portion of the Fifth Instalment or Sixth Instalment, whichever payment occurs earlier, payable by the
Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof.
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36.4 |
Subject to Clause 40.3(d), each instalment of the Pre-delivery Upfront Charterhire and the Advance Charterhire shall be unsecured and non-refundable under all
circumstances and without interest accrued thereon.
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36.5 |
During the Pre-delivery Period, the Charterers shall pay a fee in the form of Charterhire (“Pre-delivery Charterhire”) computed at the rate of the
Pre-delivery Rate on the Pre-delivery Instalment Balance from time to time during the Pre-delivery Period and each such Pre-delivery Charterhire shall be received on the last date of every Term during the Pre-delivery Period and the
last instalment of the Pre-delivery Charterhire shall be received on the last day of the Pre-delivery Period, not later, in each case, than 4.00 pm (Shanghai time).
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36.6 |
Following Delivery, Quarter Charterhire shall be payable quarterly in arrears in twenty-eight (28) instalments, with such instalments of Charterhire being
received on the last day of every Term by not later than 4.00 pm (Shanghai time).
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36.7 |
The Vessel shall not at any time be deemed off-hire. All Charterhire, the Pre-delivery Upfront Charterhire, the Advance Charterhire and other amounts payable
in this Charter shall be paid in Dollars and shall be absolutely and unconditionally payable under any and all circumstances and shall not be affected by any circumstances of any nature whatsoever including, but not limited to:
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(a) |
any set off (other than the Advance Charterhire which shall be set off in accordance with Clause 36.2, each Pre-delivery Upfront Charterhire which shall be
set off in accordance with Clause 36.3 and the Deposit Refund, the Final Purchase Option Price and the Early Termination Price which shall be set off in accordance with Clause 36.15), counterclaim, recoupment, defence, claim or other
right which the Charterers may at any time have against the Owners or any other person for any reason whatsoever including, without limitation, any act, omission or breach on the part of the Owners under this Charter or any other
agreement at any time existing between the Owners and the Charterers;
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(b) |
any change, extension, indulgence or other act or omission in respect of any indebtedness or obligation of the Charterers, or any sale, exchange, release or
surrender of, or other dealing in, any security for any such indebtedness or obligation;
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(c) |
any unavailability of the Vessel, including any title defect or encumbrance or any dispossession of the Vessel by title paramount or otherwise;
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(d) |
any defect in the seaworthiness, condition, value, design, merchantability, operation or fitness for use of the Vessel or the ineligibility of the Vessel for
any particular trade, or for registration or documentation under the laws of any relevant jurisdiction;
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(e) |
the Total Loss or any damage to or forfeiture or court marshall’s or other sale of the Vessel;
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(f) |
any libel, attachment, levy, detention, sequestration or taking into custody of the Vessel or any restriction or prevention of or interference with or
interruption or cessation in, the use or possession thereof by the Charterers unless for such period where such arrest, detention or seizure is solely attributable to the fault of the Owners;
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(g) |
any insolvency, bankruptcy, reorganization, arrangement, readjustment, dissolution, liquidation or similar proceedings by or against the Charterers;
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(h) |
any invalidity, unenforceability, lack of due authorization or other defects, or any failure or delay in performing or complying with any of the terms and
provisions of this Charter or any of the Pertinent Documents by any party to this Charter or any other person;
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(i) |
any enforcement or attempted enforcement by the Owners of their rights under this Charter or any of the Pertinent Documents executed or to be executed
pursuant to this Charter; or
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(j) |
any loss of use of the Vessel due to deficiency or default or strike of officers or crew, fire, breakdown, damage, accident, defective cargo or any other
cause which would or might but for this provision have the effect of terminating or in any way affecting any obligation of the Charterers under this Charter.
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36.8 |
Time of payment of Charterhire, the Pre-delivery Upfront Charterhire and the Advance Charterhire and other payments by the Charterers shall be of the essence
of this Charter and the other Pertinent Documents.
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36.9 |
All Charterhire and any moneys payable hereunder shall be payable by the Charterers to the Owners to such account as the Owners may notify the Charterers in
writing.
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36.10 |
Payment of Charterhire, the Pre-delivery Upfront Charterhire, and Advance Charterhire and any other moneys hereunder shall be at the Charterers’ risk until
receipt by the Owners.
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36.11 |
All stamp duty, value added tax, withholding or other taxes and import and export duties and all other similar types of charges which may be levied or
assessed on or in connection with:
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(a) |
the operation of this Charter in respect of the hire and all other payments to be made pursuant to this Charter and the remittance thereof to the Owners; and
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(b) |
the import, export, purchase, delivery and re-delivery of the Vessel,
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36.12 |
If the Charterers (including in their capacity as Sellers) fail to make any payment due under this Charter for any other Leasing Document on the due date,
they shall pay interest on such late payment at the default rate of two per cent. (2%) per annum from the date on which such payment became due until the date of payment thereof.
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36.13 |
All default interest and any other payments under this Charter which are of an annual or periodic nature shall accrue from day to day and shall be calculated
on the basis of the actual number of days elapsed and a 360 day year.
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36.14 |
Any payment which is due to be made on a day which is not a Business Day, shall be made on the preceding Business Day in the same calendar month (if there is
no preceding Business Day in the same calendar month, then payment shall be made on the next Business Day following the day on which payment is due to be made).
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(a) |
The Deposit shall be refunded to the Charterers together with the applicable Deposit Interest (such amount to be refunded, the “
Deposit Refund
”) upon irrevocable payment in full of all amounts due and payable by the Charterers and any other Relevant Party under the Pertinent Documents,
provided that and subject to Clause 36.15(b), if the Charterers exercises the Purchase Option in accordance with Clause 50 or Early Termination Price is payable by the Charterers pursuant to Clause 40.1(a), Clause 48A or Clause 49, the
Deposit Refund shall be set off against part of (or if the Deposit Refund is larger than the Final Purchase Option Price or the then applicable Early Termination Price, as the case may be, the whole of) the Final Purchase Option Price
or the then applicable Early Termination Price, as the case may be, payable by the Charterers pursuant to Clause 50 or Clause 40.1(a), Clause 48A or Clause 49 (as the case may be) and upon such set-off, the Owners shall be deemed to
have discharged their obligations to refund to the Charterers the Deposit Refund under this Clause 36.15 and the Charterers shall be deemed to have paid part of (or if the Deposit Refund is larger than the Final Purchase Option Price or
the then applicable Early Termination Price, as the case may
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(b) |
If the Charterers exercises the Final Purchase Option or the Charterers makes payment of the Early Termination Price pursuant to Clause 40.1(a), Clause 48A or
Clause 49 (as the case may be) and the Deposit Refund is set off against the Final Purchase Option Price or the then applicable Early Termination Price, as the case may be, pursuant to Clause 36.15(a):
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(i) |
and if the Deposit Refund so set off is lower than the Final Purchase Option Price or the then applicable Early Termination Price (as the case may be), the
Charterers shall be fully liable for such shortfall and shall pay to the Owners such shortfall without set-off or deduction on, in respect the Final Purchase Option Price, the Expiry Date or, in respect of the Early Termination Price,
the date on which such Early Termination Price is to be made by the Charterers, to satisfy their payment obligations of the Final Purchase Option Price or the Early Termination Price in full; and
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(ii) |
if the Deposit Refund so set off exceeds the Final Purchase Option Price or the then applicable Early Termination Price (as the case may be), the Owners shall
refund such excess to the Charterers upon irrevocable payment in full of all amounts due and payable by the Charterers and any other Relevant Party under the Pertinent Documents and upon such refund the Owners shall be deemed to have
discharged their obligation to refund the Deposit Refund to the Charterers under this Clause 36.15.
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(c) |
The Deposit paid to the Owners shall be in the possession and ownership of the Owners until the Deposit is refunded in accordance with this Clause 36.15 and
shall only be refundable in accordance with this Clause 36.15.
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37.1 |
The Charterers shall not, without the prior written consent of the Owners, assign, mortgage or pledge the Vessel or any interest therein, its Earnings,
Insurances and/or any Requisition Compensation and shall not permit the creation of any Security Interest thereon other than the Permitted Security Interests.
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37.2 |
The Charterers shall promptly notify any party including, without limitation, the BP Charterer or any other subcharterer of the Vessel (as the Owners may
request) in writing that the Vessel is the property of the Owners and the Charterers shall provide the Owners with a copy of such written notification and satisfactory evidence to the opinion of the Owners that such party has received
such written notification.
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37.3 |
If the Vessel is arrested, seized, impounded, forfeited, detained or taken out of their possession or control (whether or not pursuant to any distress,
execution or other legal process), the Charterers shall procure the immediate release of the Vessel (whether by providing bail or procuring the provision of security or otherwise do such lawful things as the circumstances may require)
and shall immediately notify the Owners of such event and shall indemnify the Owners against all losses, costs or charges incurred by the Owners by reason thereof in re-taking possession or otherwise in re-acquiring the Vessel. Without
prejudice to the generality of the foregoing and Clause 52, the Charterers agree to indemnify the Owners against all consequences or liabilities arising from the master, officers or agents signing bills of lading or other documents.
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37.4 |
The Charterers shall pay and discharge or cause the BP Charterer or any other subcharterer of the Vessel to pay and discharge all obligations and liabilities
whatsoever which have given or may give rise to liens on or claims enforceable against the Vessel and take all steps to prevent (and procure any subcharterer of the Vessel to prevent) an arrest (threatened or otherwise) of the Vessel.
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38.1 |
The Charterers shall procure that such insurances are effected:
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(a) |
in Dollars;
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(b) |
in the case of fire and usual hull and machinery, marine risks and war risks (including blocking and trapping), on an agreed value basis in an amount of at
least the higher of (i) 120% of the then applicable Early Prepayment Sum; and (ii) the then current Market Value;
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(c) |
in the case of oil pollution liability risks for the Vessel, for an aggregate amount equal to the highest level of cover from time to time available under
protection and indemnity club entry and in the international marine insurance market and for an amount of not less than $1,000,000,000;
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(d) |
in relation to protection and indemnity risks in respect of the full tonnage of the Vessel;
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(e) |
in the case of innocent Owners’ interest insurance, innocent additional perils (oil pollution) insurance, lessor’s additional perils (pollution) insurance,
Mortgagees’ interest insurance and Mortgages’ additional perils (pollution) insurance, for an amount equal to at least one hundred and twenty percent. (120%) of the then applicable Early Prepayment Sum;
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(f) |
in the case of lessor contingent liability insurance, for an amount no less than $500,000,000 and in the name of the Owners;
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(g) |
on terms and in form acceptable to the Owners and their financiers (if any); and
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(h) |
through approved brokers and with first class international insurers and/or underwriters acceptable to the Owners (including having a Standard & Poor’s
rating of BBB+ or above, a Moody’s rating of A or above or an AM Best rating of A- or above) or, in the case of war risks and protection and indemnity risks, in a war risks and protection and indemnity risks associations (being either
Gard or Britannia P&I Club) acceptable to the Owners and their financiers (if any).
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38.2 |
In addition to the terms set out in Clause 13(a) (
Insurance
and Repairs
), the Charterers shall procure that the obligatory insurances shall:
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(a) |
subject always to paragraph (b), name the Charterers, the Approved Manager and the Owners (and if applicable the Owners’ financiers if so required by the
Owners) as the only named assureds unless the interest of every other named assured or co-assured is limited:
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(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
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(1) |
to any provable out-of-pocket expenses that they have incurred and which form part of any recoverable claim on underwriters; and
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(2) |
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
them); and
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(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries they are entitled to make by way of reimbursement following
discharge of any third party liability claims made specifically against them,
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(b) |
whenever a financier of the Owners requires:
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(i) |
in respect of fire and other usual marine risks and war risks, name (or be amended to name) the same as additional named assured for their rights and
interests, warranted no operational interest and with full waiver of rights of subrogation against such financiers, but without such financiers thereby being liable to pay (but having the right to pay) premiums, calls or other
assessments in respect of such insurance;
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(ii) |
in relation to protection and indemnity risks, name (or be amended to name) the same as additional insured or co-assured for their rights and interests to the
extent permissible under the relevant protection and indemnity club rules; and
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(iii) |
name the Owners’ financiers (if any) and the Owners as respectively the first ranking loss payee and the second ranking loss payee (and in the absence of any
financiers, the Owners as first ranking loss payee) in accordance with the terms of the relevant loss payable clauses approved by the Owners’ financiers and the Owners with such directions for payment in accordance with the terms of
such relevant loss payable clause, as the Owners and their financiers (if any) may specify;
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(c) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Owners and/or their financiers (as applicable) shall be made
without set-off, counterclaim or deductions or condition whatsoever;
|
(d) |
provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Owners or their
financiers (if any);
|
(e) |
provide that the Owners and/or their financiers (if any) may make proof of loss if the Charterers fail to do so; and
|
(f) |
provide that if any obligatory insurance is cancelled, or if any substantial change is made in the coverage which adversely affects the interest of the Owners
and/or their financiers (if any), or if any obligatory insurance is allowed to lapse for non-payment of premium, such cancellation, change or lapse shall not be effective with respect to the Owners and/or their financiers (if any) for
thirty (30) days after receipt by the Owners and/or their financiers (if any) of prior written notice from the insurers of such cancellation, change or lapse.
|
38.3 |
The Charterers shall:
|
(a) |
at least fifteen (15) days prior to Delivery (or such lesser period agreed by the parties), notify the terms and conditions of all Insurances in writing to
the Owners (copied to their financiers (if any) and the brokers or insurers with whom the Insurances are or will be placed);
|
(b) |
at least fifteen (15) days before the expiry of any obligatory insurance notify the Owners (copied to their financiers (if any)) of the brokers (or other
insurers) and any protection and indemnity or war risks association through or with whom the Charterers propose to renew that obligatory insurance and of the proposed terms of renewal and obtain the Owners' approval to such matters;
|
(c) |
at least seven (7) days before the expiry of any obligatory insurance, procure that such obligatory insurance is renewed or to be renewed on its expiry date
in accordance with the provisions of this Charter;
|
(d) |
procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after
the renewal or the
|
(e) |
as soon as practicable after the expiry of any obligatory insurance, deliver to the Owners a letter of undertaking as required by this Charter in respect of
such Insurances for the Vessel as renewed pursuant to Clause 38.3(c) (
Insurance
) together with copies of the relevant policies or
cover notes or entry certificates duly endorsed with the interest of the Owners and/or their financiers (if any).
|
38.4 |
The Charterers shall ensure that all insurance companies and/or underwriters, and/or (if any) insurance brokers provide the Owners with all (if required by
the Owners, in original) policies, cover notes and certificates of entry relating to the obligatory insurances which they are to effect or renew and a letter or letters of undertaking in a form required by the Owners and/or their
financiers (if any) and including undertakings by the insurance companies and/or underwriters that:
|
(a) |
they will have endorsed on each policy, immediately upon issuance, a loss payable clause and a notice of assignment complying with the provisions of this
Charter and the Financial Instruments;
|
(b) |
they will hold the benefit of such policies and such insurances, to the order of the Owners and/or their financiers (if any) and/or such other party in
accordance with the said loss payable clause;
|
(c) |
they will advise the Owners and their financiers (if any) promptly of any material change to the terms of the obligatory insurances of which they are aware;
|
(d) |
(i) they will indicate in the letters of undertaking that they will immediately notify the Owners and their financiers (if any) when any cancellation, charge
or lapse of the relevant obligatory insurance occur and (ii) following a written application from the Owners and/or their financiers (if any) not later than one (1) month before the expiry of the obligatory insurances they will notify
the Owners and their financiers (if any) not less than fourteen (14) days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from the Charterers and, in the event of
their receiving instructions to renew, they will promptly notify the Owners and their financiers (if any) of the terms of the instructions; and
|
(e) |
if any of the obligatory insurances form part of any fleet cover, the Charterers shall procure that the insurance broker(s), or leading insurer, as the case
may be, undertakes to the Owners and their financiers (if any) that such insurance broker or insurer will not set off against any sum recoverable in respect of a claim relating to the Vessel under such obligatory insurances any premiums
due in respect of any other vessel under any fleet cover of which the Vessel forms a part or any premium due for other insurances, they waive any lien on the policies, or any sums received under them, which they might have in respect of
such premiums, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of the Vessel forthwith upon being so
requested by the Owners and/or their financiers (if any) and where practicable.
|
38.5 |
The Charterers shall ensure that any protection and indemnity and/or war risks associations in which the Vessel is entered provides the Owners and their
financiers (if any) with:
|
(a) |
a copy of the certificate of entry for the Vessel as soon as such certificate of entry is issued;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Owners and their financiers (if any) or in such association’s standard form; 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 Vessel.
|
38.6 |
The Charterers shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are
effected or renewed.
|
38.7 |
The Charterers shall procure that all premiums or other sums payable in respect of the obligatory insurances are punctually paid and produce all relevant
receipts when so required by the Owners.
|
38.8 |
The Charterers shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force
and effect.
|
38.9 |
The Charterers shall neither 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; and, in particular:
|
(a) |
the Charterers shall procure that all necessary action is taken and all requirements are complied with which may from time to time be applicable to the
obligatory insurances, and (without limiting the obligations contained in this Clause 38) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Owners have not given their prior
approval (unless such exclusions or qualifications are made in accordance with the rules of a protection and indemnity association which is a member of the International Group of protection and indemnity associations);
|
(b) |
the Charterers shall not make or permit any changes relating to the classification or classification society of the Vessel or manager or operator of the
Vessel unless such changes have first been approved by the underwriters of the obligatory insurances and are approved by the Owners;
|
(c) |
the Charterers shall procure that all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which
the Vessel 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) are made and the Charterers
shall promptly provide the Owners with copies of such declarations and a copy of the certificate of financial responsibility; and
|
(d) |
the Charterers shall not employ the Vessel, 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.
|
38.10 |
The Charterers shall not make or agree to any alteration to the terms of any obligatory insurance nor waive any right relating to any obligatory insurance
without the prior written consent of the Owners and the Owners’ financiers (if any).
|
38.11 |
The Charterers shall not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all
things necessary and provide all documents, evidence and information to enable the Owners to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
38.12 |
The Charterers shall provide the Owners upon written request (except that upon the occurrence of a Total Loss or a Major Casualty the Charterers shall provide
the following immediately without the Owners’ making any request), copies of:
|
(a) |
all communications between the Charterers and:
|
|
(i) |
the approved brokers;
|
|
(ii) |
the approved protection and indemnity and/or war risks associations; and/or
|
|
(iii) |
the first class international insurers and/or underwriters, which relate directly or indirectly to:
|
|
(A) |
the Charterers’ obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional
premiums or calls; and
|
|
(B) |
any credit arrangements made between the Charterers and any of the persons referred to in paragraphs (i) or (ii) relating wholly or partly to the effecting or
maintenance of the obligatory insurances; and
|
(b) |
any communication with all parties involved in case of a claim under any of the Vessel’s insurances.
|
38.13 |
The Charterers shall promptly provide the Owners (or any persons which they may designate) with:
|
(a) |
any information which the Owners or their financiers (or any such designated person) request for the purpose of:
|
|
(i) |
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
|
|
(ii) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 13(a) (
Insurance and Repairs
) or dealing with or considering any matters relating to any such insurances; and
|
(b) |
copies of any communication between all parties involved in case of a claim under any of the Vessel’s insurances exceeding the Major Casualty amount.
|
38.14 |
If one or more of the obligatory insurances are not effected and maintained with first class international insurers or are effected with an insurance or
captive Subsidiary of the Owners or the Charterers, then the Charterers shall procure, at their own expense, that the relevant insurers maintain in full force and effect facultative reinsurances with reinsurers and through brokers, in
each case, of recognised standing and acceptable in all respects to the Owners. Any reinsurance policy shall include, if and when permitted by law, a cut-through clause in a form acceptable to the Owners and/or their financiers (if
any). The Charterers shall procure that underwriters of the primary insurances assign each reinsurance to the relevant financiers in full, if required.
|
38.15 |
The Charterers shall upon demand fully indemnify the Owners and/or their financiers (if any) in respect of all premiums and other expenses which are incurred
by (i) the Owners in connection with or with a view to effecting, maintaining or renewing an innocent Owners’ interest insurance, innocent additional perils (oil pollution) insurance, lessor’s additional perils (pollution) insurance,
lessor contingent liability insurance that is taken out in respect of the Vessel and/or (ii) the financier(s) of the Owners (if any) in connection with or with a view to effecting, maintaining or renewing a mortgagee’s interest
insurance, innocent additional perils (oil pollution insurance) and a mortgagee’s additional perils (pollution) insurance that is taken out in respect of the Vessel, in each case as referred to in aforementioned (i) or (ii), on such
terms and through such insurers as the Owners and/or their financiers (if any) may from time to time consider appropriate in its sole discretion.
|
38.16 |
The Charterers shall be solely responsible for and indemnify the Owners in respect of all loss or damage to the Vessel (insofar as the Owners shall not be
reimbursed by the proceeds of any insurance in respect thereof) however caused occurring at any time or times before physical possession thereof is retaken by the Owners, reasonable wear and tear to the Vessel only excepted.
|
38.17 |
The Charterers shall:
|
(a) |
if so requested by the Owners, but at the expense of the Charterers, furnish the Owners once every year not later than the annual anniversary of the Delivery
Date (or, after a Termination Event has occurred and is continuing, as many times per year as the Owners may require) with a detailed report signed by an independent firm of marine insurance brokers appointed by the Owners dealing with
the Insurances and stating the opinion of such firm as to the adequacy of the Insurances;
|
(b) |
reimburse the Owners, promptly on the Owners’ demand, any expenses incurred by the Owners in obtaining the reports described in Clause 38.13(a) and/or
38.17(a) (
Insurance
); and
|
(c) |
procure that there is delivered to the insurance brokers described in Clause 38.17(a) (
Insurance
) such information in relation to the Insurances as such brokers may require.
|
38.18 |
The Charterers shall:
|
(a) |
keep the Vessel insured at their expense against such other risks (other than loss of hire which shall be insured against upon an occurrence and during the
continuance of a Potential Termination Event or Termination Event) which the Owners or their financiers consider reasonable for a prudent shipowner or operator to insure against at the relevant time (as notified by the Owners and having
regard to the then existing available insurance cover and standard practice in the operation of vessels of the same type as the Vessel) and which are, at that time, generally insured against by owners or operators of vessels similar to
the Vessel or of the same type as the Vessel; and
|
(b) |
upon demand fully indemnify the Owners in respect of all premiums and other expenses incurred by the Owners in respect of any other insurances (other than
loss of hire insurances which the Owners may take out upon an occurrence and during the continuance of a Potential Termination Event or Termination Event) which the Owners deem necessary (having regard to the existing insurance cover
and standard practice in the operation of vessels of the same type) and takes out in respect of the Vessel.
|
39.1 |
It is expressly agreed and acknowledged that the Owners are not the manufacturer or original supplier of the Vessel which has been purchased by the Owners as
buyers from the Charterers as sellers pursuant to the MOA for the purpose of then chartering the Vessel to the Charterers hereunder and that no condition, term, warranty or representation of any kind is or has been given to the
Charterers by or on behalf of the Owners in respect of the Vessel (or any part thereof).
|
39.2 |
All conditions, terms or warranties express or implied by the law relating to the specifications, quality, description, merchantability or fitness for any
purpose of the Vessel (or any part thereof) or otherwise are hereby expressly excluded.
|
39.3 |
The Charterers agree and acknowledge that the Owners shall not be liable for any claim, loss, damage, expense or other liability of any kind or nature caused
directly or indirectly by the Vessel or by any inadequacy thereof or the use or performance thereof or any repairs thereto or servicing thereof and the Charterers shall not by reason thereof be released from any liability to pay any
Charterhire, the Pre-delivery Upfront Charterhire or the Advance Charterhire or other payment due under this Charter or the other Pertinent Documents.
|
40.1 |
If:
|
(a) |
subject to Clause 36.15, the Early Termination Price becomes payable in accordance with Clause 48.2 or Clause 48.3, the same shall (in each such case) be
payable in consideration of the purchase and transfer of the legal and beneficial title of the Vessel pursuant to Clause 40.4;
|
(b) |
the Pre-delivery Termination Sum becomes payable in accordance with Clause 48.3 the same shall (in each such case) be payable in consideration of the
Pre-delivery Releases pursuant to the terms of the Pre-delivery Assignment,
|
40.2 |
Upon irrevocable receipt of the Early Termination Price or the Pre-delivery Termination Sum (as the case may be) by the Owners pursuant to Clause 40.1 or
Clause 40.7, in full, this Charter shall terminate.
|
|
(i) |
At any time after a Termination Event Notice is served (or if a Termination Event has occurred pursuant to Clauses 48.1(a) or 48.1(g), at any time after its
occurrence) and regardless of if the Charterers’ Remarketing Period having commenced and the Charter having not been terminated because of the application of Clause 48.3(B), the Charterers' right to possess and operate the Vessel shall
immediately cease and (without in any way affecting the Charterers' obligation to pay the relevant Early Termination Price) the Charterers shall, upon the Owners' request (at the Owners' sole discretion), be obliged to immediately (and
at the Charterers' own cost) redeliver the Vessel to the Owners at such ready and nearest safe and practical for redelivery port as the Owners may require; further and for the avoidance of doubt, the Owners shall be entitled (at Owners'
sole discretion) to operate the Vessel as they may require and may create whatsoever interests thereon, including without limitation charterparties or any other form of employment contracts ("
Post-enforcement Interests
");
|
|
(ii) |
subject to paragraph (iii) below, at any time after a Termination Event Notice is served unless the Charterers’ Remarketing Period has commenced and the
Owners’ rights provided under this paragraph (ii) have not been suspended pursuant to Clause 48.3(B), the Owners shall be entitled (at the Owners' sole discretion) to sell the Vessel on an arm’s length basis and on terms they deem fit
(an "
Owners' Sale
"); and
|
|
(iii) |
at any time this Charter is terminated pursuant to Clause 48.3, the Owners shall be entitled (at the Owners’ sole discretion) to sell the Vessel on whatever
terms they deem fit and for the avoidance of doubt such sale shall not constitute an Owners’ Sale.
|
(b) |
If the Charterers fail to make any payment of the Pre-delivery Termination Sum on the due date therefor :
|
|
(i) |
Clauses 36.12 and 36.13 shall apply; and
|
|
(ii) |
shall be entitled to exercise its rights under the Pre-delivery Assignment and the other Leasing Documents (for the avoidance of doubt, Clause 6 of the
Pre-delivery Assignment shall continue to apply).
|
(c) |
Prior to effecting an Owners’ Sale, the Owners shall notify the Charterers in writing and the Charterers may thereafter but prior to the completion of the
Owners’ Sale:
|
|
(i) |
submit to the Owners evidence (to the satisfaction of the Owners) of a purchaser offering by way of a firm offer (subject to customary closing conditions and
Owners’ investigation on know your client issues) (a “
Third Party’s Offer
”) an amount at least equal to the then current amount of
the Early Termination Price following which the Owners will use reasonable endeavors to enter into a memorandum of agreement (in a form acceptable to the Owners and the relevant counterparty buyer) pursuant to such Third Party’s Offer;
or
|
|
(ii) |
elect to purchase the Vessel by paying the Owners the then current amount of the Early Termination Price (which has become due and payable pursuant to Clause
48.2,
|
(d) |
The proceeds of any sale (in any case other than the sale of the Vessel made after this Charter is terminated pursuant to Clause 48.3) of the Vessel pursuant
to an Owners’ Sale, a Third Party’s Offer or Clause 48.3(B)(1) (as the case may be) shall be applied:
|
|
(i) |
first, towards the Owners’ documented costs incurred in relation to such sale;
|
|
(ii) |
second, towards payment of the then applicable Early Termination Price and other sums then due and payable to the Owners under the Leasing Documents; and
|
|
(iii) |
third, any remaining balance to be paid to the Charterers subject to all actual and/or contingent liabilities incurred under any of the Leasing Documents
being fully discharged; provided also in the case of the sale proceeds are not in an amount sufficient to discharge in full the aggregate amounts due to the Owners under (i) and (ii), the Charterers shall continue to be liable for the
shortfall.
|
(a) |
Concurrently with the Owners receiving irrevocable payment of the Early Termination Price in full together with other sums then due and payable to the Owners
pursuant to the terms of this Charter or any other Leasing Documents from the Charterers pursuant to Clause 40.3(c)(ii) or Clause 48.3(B)(2) (as the case may be), the Owners shall (save, for the avoidance of doubt, in the event of Total
Loss or where ownership has already been or agreed to be transferred pursuant to an Owners’ Sale, a Third Party’s Offer, Clause or Clause 48.3(B)(1) (as the case may be)) transfer the legal and beneficial ownership of the Vessel on an
"as is where
|
(b) |
Clause 6.1(b) of the Pre-delivery Assignment shall apply to any receipt by the Owners of the Pre-delivery Termination Sum pursuant to the terms of this
Charter and the Pre-delivery Assignment.
|
40.5 |
The Charterers hereby undertake to indemnify the Owners against any claims incurred in relation to the Vessel as a result of the Charterers' action or
performance prior to transfer of ownership pursuant to Clause 40.4(a). Any taxes, notarial, consular and other costs, charges and expenses connected with closing of the Owners' register shall be for the Charterers' account.
|
(a) |
If the Charterers are required to redeliver the Vessel to the Owners pursuant to Clause 40.3(a) or if they do not exercise the Purchase Option, the Charterers
shall ensure that the Vessel shall, at the time of redelivery to the Owners (at Charterers' cost and expense, including as to docking and repair costs in respect of the below):
|
|
(i) |
be in compliance with its Insurances;
|
|
(ii) |
be in an equivalent classification as she was as at the Delivery Date without any recommendation or condition, and with valid, unextended certificates for not
less than six (6) months and free of average damage affecting the Vessel's classification and in the same or as good structure, state, condition and classification as that in which she was deemed on the Delivery Date, fair wear and tear
not affecting the Vessel's classification excepted ;
|
|
(iii) |
have passed her 5-year and if applicable, 10-year special surveys, and subsequent second intermediate surveys and drydock at the Charterers' time and expense
without any condition or outstanding issue and to the satisfaction of the Classification Society and with all the Vessel's classification, trading, national and international certificates that the Vessel had when she was delivered under
this Charter and the log book and whatsoever necessary relating to the operation of the Vessel, valid and un-extended without conditions or recommendation falling due;
|
|
(iv) |
have her survey cycles up to date and trading and classification certificate valid for at least six (6) months;
|
|
(v) |
be redelivered to the Owners together with all spare parts and spare equipment as were on board at the time of Delivery except for any spare parts already
used and replaced in accordance with the terms of this Charter, and any such spare parts and spare equipment on board at the time of redelivery shall be taken over by the Owners free of charge;
|
|
(vi) |
be free of any cargo and Security Interests (save for the Security Interests granted pursuant to the Financial Instruments);
|
|
(vii) |
be redelivered to the Owners together with all material information generated during the Charter Period in respect of the use, possession, operation,
navigation and the physical condition of the Vessel, whether or not such information is contained in the Charterers' equipment, computer or property;
|
|
(viii) |
subject to any quiet enjoyment agreement or similar agreement between the Owners and the BP Charterer, be free of any charter (unless the Owners wish to
retain the continuance of any then existing charter in which case the Charterers shall use their best endeavors to procure such continuance);
|
|
(ix) |
be free of officers and crew (unless otherwise agreed by the Owners); and
|
|
(x) |
shall have had her underwater parts treated with ample anti-fouling to last for the ensuing period up to the next scheduled dry docking of the Vessel in
accordance with Classification Society requirements.
|
(b) |
The Owners shall, at the time of the redelivery of the Vessel, take over all bunkers, lubricating oil, unbroached provisions, paints, ropes and other
consumable stores in the Vessel at no cost to the Owners.
|
(c) |
In the case of a redelivery of the Vessel if required because the Charterers do not exercise the Purchase Option:
|
|
(i) |
the Charterers shall give the Owners not less than sixty (60) days preliminary notice of the range of ports of redelivery or port of place or redelivery and
not less than fourteen (14) days definite notice of port or place of redelivery. Any changes thereafter in the Vessel’s position shall be notified by the Charterers immediately to the Owners;
|
|
(ii) |
the Charterers shall not permit the Vessel to commence any voyage (including any preceding ballast voyage) which cannot be expected to be completed prior on
the Expiry Date; and
|
|
(iii) |
if the time of actual redelivery is after the date on which redelivery is required to take place pursuant to Clause 50 (the "
Redelivery Date
"), the Charterer shall, without prejudice to any other amounts payable under the Leasing Documents (including without limitation pursuant to this
Clause 40) pay to the Owners, as from the first date following the Expiry Date and for each day until the date on which the Vessel is redelivered in accordance with the conditions Clause 40.6(a), the rate of hire equivalent to the
higher of:
|
|
(A) |
the daily Charterhire that would have been payable in the last month of the Charter Period;
|
|
(B) |
the prevailing market rate for the bareboat chartering of vessels of a similar type as the Vessel (as determined by an Approved Valuer appointed by the
Owners); and
|
|
(C) |
the prevailing market rate for the chartering of vessels of a similar type as the Vessel on the Index.
|
(d) |
The Owners reserve all rights to recover from the Charterers any costs, expense and/or liabilities incurred or suffered by them (including without limitation,
the costs of any docking and/or repairs which may be required to restore the Vessel to the structure, state, condition and class as that in which the Vessel was delivered (fair wear and tear not affecting class excepted, but without any
recommendations or conditions as to class)) as a result of the Vessel not being redelivered in accordance with the terms of this Charter.
|
40.7 |
If the Vessel, for any reason, becomes a Total Loss after Delivery, the Charterers shall pay the Early Termination Price to the Owners on the earlier of:
|
(a) |
the date falling ninety (90) days after such Total Loss has occurred; and
|
(b) |
the date of receipt by the Owners and/or their financiers (if any), in accordance with the terms of the relevant loss payable clause, of the proceeds of
insurance relating to such Total Loss,
|
|
(i) |
payment of the Charterhire and all other sums payable under the Leasing Documents during such period shall continue to be made by the Charterers in accordance
with the terms thereof unless and until the Owners receive in full the Early Termination Price;
|
|
(ii) |
should insurance proceeds be received by the Owners from the insurers, the Charterers' obligations to pay the Early Termination Price shall be accordingly
reduced by an amount corresponding to such insurance proceeds but in the event that such insurance proceeds are less than the amount of the Early Termination Price together with any interest accrued thereon, the Charterers shall remain
obliged to pay to the Owners the balance so that the full amount of the Early Termination Price due together with any interest accrued thereon is received by the Owners; and
|
|
(iii) |
the obligation of the Charterers to pay the Early Termination Price shall remain unaffected and exist regardless of whether any of the insurers have agreed or
refused to meet or has disputed in good faith, the claim for Total Loss.
|
40.8 |
The Owners shall have no obligation to supply to the Charterers with a replacement vessel following the occurrence of a Total Loss.
|
41.1 |
In consideration of the Owners entering into this Charter, the Charterers shall pay to the Owners or their nominee
|
(a) |
a non-refundable arrangement fee equal to one point one per cent. (1.10%) of the Financing Amount (the total amount of such arrangement fee payable, the “
Arrangement Fee Amount
”) which shall be payable, and actually received by the Owners or their nominee in two instalments, each payable in
the following amount and at the following times:
|
|
(i) |
the first instalment shall be payable and received by the Owners no later than the payment of the Fifth Instalment or the Sixth Instalment (whichever happens
first) or, if this Charter is terminated prior to the Delivery Date, the date of such termination in an amount equal to zero point five per cent. (0.50%) of the Estimated Financing Amount (the “
First Instalment Arrangement Fee Amount
”); and
|
|
(ii) |
the second instalment shall be payable and received by the Owners no later than the date the Final Instalment is remitted by the Owners as buyer under the MOA
to the Builder’s Bank pursuant to clause 19(b)(iii) (
Payment of Purchase Price by Buyer
) of the MOA or, if this Charter is
terminated prior to the Scheduled Delivery Date with no Delivery taking place, the date of such termination, in an amount in Dollars equal to the Arrangement Fee Amount minus the First Instalment Arrangement Fee Amount; and
|
(b) |
a commitment fee (the “
Commitment Fee
”) in Dollars
computed at the rate of zero point five per cent. (0.50%) per annum on the Committed Amount (Estimated) from time to time for the Pre-delivery Period and the accrued commitment fee is payable on the last day of each successive period of
three (3) months which ends during the Pre-delivery Period and on the last day of the Pre-delivery Period (so that the last payment of the Commitment Fee shall be made by the Charterers on the last day of the Pre-delivery Period),
provided that :
|
|
(i) |
if the Actual Commitment Fee is higher than the aggregate amount of the Commitment Fee payable during the Pre-delivery Period (applying the Committed Amount
(Estimated) in its calculation and disregarding the application of sub-paragraphs (b)(i) and (b)(ii) of this Clause) (such excess amount, the “
Additional Fee
”), the last payment of the Commitment Fee the Charterers shall make on the last day of the Pre-delivery Period shall be increased by the amount of the Additional Fee; and
|
|
(ii) |
if the Actual Commitment Fee is lower than the aggregate amount of the Commitment Fee payable during the Pre-delivery Period (applying the Committed Amount
(Estimated) in its calculation and disregarding the application of the sub-paragraphs (b)(i) and (b)(ii) of this Clause) (such a shortfall, the “
Excess Fee
”), the last payment of the Commitment Fee the Charterers shall make on the last day of the Pre-delivery Period shall be reduced by the amount of the Excess Fee, provided that if the amount of the Excess Fee is
higher than the last payment of the Commitment Fee payable on the last day of the Pre-delivery Period disregarding the application of this sub-paragraph (b)(ii) (such difference, the “
Fee Reimbursement
”), the Owners shall reimburse the Charterers with an amount in Dollars equal to the Fee Reimbursement without any interest.
|
41.2 |
Without prejudice to any other rights of the Owners hereunder, the Charterers shall promptly pay to the Owners on written demand on a full indemnity basis all
costs, charges and expenses incurred by the Owners in collecting any Charterhire, the Pre-delivery Upfront Charterhire or the Advance Charterhire or other payments not paid on the due date under this Charter and in remedying any other
failure of the Charterers to observe the terms and conditions of this Charter.
|
41.3 |
All costs and expenses (including, but not limited to, legal costs) incurred by the Owners or Owners’ legal counsel in the preparation, negotiation and
execution of all documentation in relation to this Charter or any other Pertinent Document (including without limitation any registration or filing expenses, all costs incurred by the Owners and all legal costs, expenses and
|
41.4 |
All costs and expenses incurred by the Owners in relation to the acquisition and registration of the Vessel by the Owners in the Owners’ name in the Buyers’
Nominated Flag State together with any and all fees (including but not limited to any vessel registration and tonnage fees) payable by the Owners to such flag state to maintain and/or renew such registration shall be for the account of
the Charterers. Without prejudice to the foregoing, if the Buyers’ Nominated Flag State requires the Owners to establish a physical presence or office in the jurisdiction of such flag state, all fees, costs and expenses payable by the
Owners to establish and maintain such physical presence or office shall be for the account of the Charterers.
|
41.5 |
All costs and expenses incurred by the Owners in relation to the redelivery of the Vessel by the Owners to the Charterers pursuant to Clause 40 (
Termination, Redelivery and Total Loss
) shall be for the account of the Charterers.
|
41.6 |
Notwithstanding anything to the contrary herein, the indemnities provided by the Charterers shall be provided in favour of the Owners and shall continue in
full force and effect notwithstanding any breach of the terms of this Charter or termination of this Charter pursuant to the terms hereof.
|
42.1 |
No neglect, delay, omission or indulgence on the part of either party in enforcing the terms and conditions of this Charter shall prejudice the strict rights
of that party or be construed as a waiver thereof nor shall any single or partial exercise of any right of either party preclude any other or further exercise thereof.
|
42.2 |
No right or remedy conferred upon either party by this Charter shall be exclusive of any other right or remedy provided for herein or by law and all such
rights and remedies shall be cumulative.
|
(a) |
the Charterers are legally, wholly and directly owned and controlled by the Guarantor and the Guarantor is controlled by affiliate companies to the family of
Mr. Evangelos Pistiolis;
|
(b) |
each Relevant Person is duly incorporated and validly existing under the laws of its jurisdiction of its incorporation;
|
(c) |
each Relevant Person has the corporate capacity, and has taken all corporate actions and obtained all consents, approvals, authorisations, licenses or permits
necessary for it:
|
|
(i) |
to execute each of the Pertinent Documents to which it is a party; and
|
|
(ii) |
to comply with and perform its obligations under each of the Pertinent Documents to which it is a party;
|
(d) |
all the consents, approvals, authorisations, licenses or permits referred to in Clause 44.1(c) (
Representations and Warranties
) remain in force and nothing has occurred which makes any of them liable to revocation;
|
(e) |
each of the Pertinent Documents to which a Relevant Person is a party constitutes such Relevant Person’s legal, valid and binding obligations enforceable
against such party in accordance with its respective terms and any relevant insolvency laws affecting creditors’ rights generally;
|
(f) |
the entry into and performance by each Relevant Person of, and the transactions contemplated by, each Pertinent Document to which it is a party do not and
will not conflict with:
|
|
(i) |
any law or regulation applicable to it;
|
|
(ii) |
the constitutional documents of such Relevant Person; and
|
|
(iii) |
any agreement or instrument binding upon it or any of its assets or constitute a default or termination event (however described) under any such agreement or
instrument;
|
(g) |
there are no outstanding notices or demands from any governmental, quasi-governmental or public authority or instrumentality or any other person claiming
authority in respect of the Vessel requiring any work or other action to be taken or the expenditure of any money to be taken in respect of the Vessel or any part thereof;
|
(h) |
the Vessel is free of encumbrances and liens except for the Permitted Security Interests; no third party has any Security Interest, other than the Permitted
Security Interests, or any other interest, right or claim over, in or in relation to the Vessel, this Charter or any moneys payable hereunder and/or any of the other Pertinent Documents;
|
(i) |
all payments which a Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) is liable to make under any Pertinent Document to
which such Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) is a party may be made by such party without deduction or withholding for or on account of any tax payable under the laws of its Relevant
Jurisdiction;
|
(j) |
no legal or administrative action involving a Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) has been commenced or taken
(including but not limited
|
(k) |
each Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) has paid all taxes applicable to, or imposed on or in relation to it,
its business or if applicable, the Vessel, except for those being contested in good faith with adequate reserves;
|
(l) |
it is not necessary under the laws of the Relevant Jurisdictions that this Charter or any other Leasing Document be registered, filed, recorded, notarized or
enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar taxes or fees be paid on or in relation to the Leasing Documents to which it is a party or the transactions
contemplated by those Leasing Documents; the choice of governing law as stated in each Pertinent Document to which a Relevant Person is a party and the agreement by such party to refer disputes to the relevant courts or tribunals as
stated in such Pertinent Document are valid and binding against such Relevant Person;
|
(m) |
no Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) nor any of their assets are entitled to immunity on the grounds of
sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement);
|
(n) |
the obligations of each Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) under each Pertinent Document to which it is a
party, are the direct, general and unconditional obligations of such Relevant Person and rank at least pari passu with all other present and future unsecured and unsubordinated creditors of such Relevant Person save for any obligation
which is mandatorily preferred by law and not by virtue of any contract;
|
(o) |
each Pertinent Document creates (or, once entered into, will create) the Security Interest which it is expressed to create with the ranking and priority it is
expressed to have;
|
(p) |
the Charterers and any other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) (i) are not US Tax Obligors and (ii) have not
established a place of business in the United Kingdom or the United States of America;
|
(q) |
no Relevant Person or any of their respective directors, officers, and employees is a Restricted Person or is otherwise a target of applicable Sanctions;
|
(r) |
no Relevant Person or any of their respective directors, officers, and employees is in breach of applicable Sanctions laws, and none of them (i) has been or
is currently being investigated on compliance with Sanctions, (ii) has received notice or is aware of any claim, action, suit or proceeding against any of them with respect to Sanctions and (iii) has taken any action to evade the
application of Sanctions;
|
(s) |
no Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) is in breach of any Anti-Money Laundering Laws, Anti-Terrorism
Financing Laws and/or Business Ethics Laws and each Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) has instituted and maintained systems, controls, policies and procedures designed to:
|
|
(i) |
prevent and detect incidences of bribery and corruption, money laundering and terrorism financing; and
|
|
(ii) |
promote and achieve compliance with Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and or Business Ethics Laws including, but not limited to,
ensuring thorough and accurate books and records, and utilization of best efforts to ensure
|
(t) |
that in relation to the Shipbuilding Documents and the BP Charter:
|
|
(i) |
each copy of the Shipbuilding Documents and BP Charter provided to the Owners is a true and complete copy of such document and there have been no amendments,
supplements or variations to the same;
|
|
(ii) |
all amounts due and payable to the Builder under the Contract on or prior to the date hereof have been fully and irrevocably paid to the Builder (receipt of
which has been duly acknowledged by the Builder) and there are no outstanding amounts as at the date hereof which are due, owing or payable to the Builder thereunder;
|
|
(iii) |
there are no unresolved disputes and/or pending claims for payment between the Builder and the Charterers in respect of the Shipbuilding Documents and/or the
Vessel and/or the BP Charter; and
|
|
(iv) |
each of the BP Charterer, Builder and the Refund Guarantor is fully aware of the transactions contemplated under the MOA and this Charter;
|
|
(v) |
each of the Builder and the Refund Guarantor has consented to the assignment by the Charterers to the Owners of all their rights, interests and benefits in
relation to the Shipbuilding Documents pursuant to the Pre-delivery Assignment;
|
|
(vi) |
the BP Charterer has consented to the assignment by the Charterers to the Owners of all their rights, interests and benefits in relation to the BP Charter
pursuant to the General Assignment;
|
(u) |
the Vessel is not employed, operated or managed in any manner which (i) is contrary to any Sanctions and in particular, the Vessel is not used by or to
benefit any party which is a target of Sanctions or trade to any area or country where trading the Vessel to such area or country would constitute a breach of any Sanctions or published boycotts imposed by any of the United Nations, the
European Union, the United States of America, the United Kingdom or the People’s Republic of China (provided that operation or use of the Vessel by the BP Charterer pursuant to the BP Charter shall not in any case be deemed to be in
breach or contrary to any published boycotts imposed by the People’s Republic of China) or (ii) would trigger the operation of any sanctions limitation or exclusion clause in any insurance documentation;
|
(v) |
none of the Relevant Persons nor any of their assets, in each case, has any right to immunity from set off, legal proceedings, attachment prior to judgment or
other attachment or execution of judgement on the grounds of sovereign immunity or otherwise;
|
(w) |
none of the Relevant Persons is insolvent, bankrupt or in liquidation, bankruptcy or administration or subject to any other formal or informal insolvency or
bankruptcy procedure (including, without limitation, those referred to under Clause 48.1(g) (
Termination Events
) and for the
avoidance of doubt including the presentation of a petition for commencing such procedures), and no receiver, administrative receiver, administrator, liquidator, trustee or analogous officer has been appointed in respect of the any
Relevant Person or all or material part of their assets;
|
(x) |
no Termination Event or Potential Termination Event is continuing or might reasonably be expected to result from the entry into and performance of this
Charter or any other Pertinent Document;
|
(y) |
any factual information provided by any Relevant Person (or on their behalf) to the Owners was true and accurate in all material respects as at the date it
was provided or as at the date at which such information was stated;
|
(z) |
none of the following events has occurred:
|
|
(i) |
any default by the Charterers or the BP Charterer under the terms of the BP Charter;
|
|
(ii) |
any default by the Charterers or the Builder under the terms of the Contract;
|
|
(iii) |
breach of any Sanctions;
|
|
(iv) |
upon delivery of the Vessel under the Contract, any casualty or occurrence (including damage caused to the Vessel for any reason whatsoever) which results, or
may be expected to result, in repairs on the Vessel; and
|
|
(v) |
upon and after the commencement of the Charter Period, any casualty or occurrence (including damage caused to the Vessel for any reason whatsoever which
results, or may be expected to result, in repairs on the Vessel) which exceed the Major Casualty Amount and which are not being dealt with in accordance with the Leasing Documents (including without limitation in accordance with Clause
38 and the General Assignment);
|
(aa) |
all Environmental Laws relating to the ownership, operation and management of the Vessel and the business of each Relevant Person (as now conducted and as
reasonably anticipated to be conducted in the future) have been complied with;
|
(bb) |
no Environmental Claim has been made or threatened against any Relevant Person or otherwise in connection with the Vessel; and
|
(cc) |
no Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred.
|
45.1 |
The Charterers undertake that they shall comply or procure compliance with the following undertakings during the Security Period:
|
(a) |
the Charterers shall, on the Delivery Date, procure the delivery of the full legal and beneficial title (free of any Security Interests save for those created
under a Pertinent Document or Financial Instrument) in the Vessel to the Owners;
|
(b) |
there shall be sent to the Owners:
|
|
(i) |
as soon as possible, but in no event later than one hundred and twenty (120) days after the end of each financial year of the Charterers, the audited annual
financial statement accounts of the Charterers for that financial year as referred to in the Guarantor’s audited consolidated annual financial statement accounts of the Guarantor for that financial year to be delivered under Clause
45.1(b)(iii);
|
|
(ii) |
as soon as possible, but in no event later than ninety (90) days after the end of each half-year, the unaudited semi-annual accounts of the Charterers for
that half-year;
|
|
(iii) |
as soon as possible, but in no event later than one hundred and twenty (120) days after the end of each financial year of the Guarantor, the audited
consolidated annual financial statement accounts of the Guarantor for that financial year; and
|
|
(iv) |
as soon as possible, but in no event later than ninety (90) days after the end of each half-year, the semi-annual consolidated unaudited accounts of the
Guarantor for that half-year certified as to their correctness by at least one director of the Guarantor;
|
(c) |
they shall provide to the Owners, at the same time as they are despatched, copies of all notices and minutes relating to any of their extraordinary
shareholders’ meeting which are despatched to the Charterers’ or the Guarantor’s respective shareholders or creditors or any class of them;
|
(d) |
they shall, and shall procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, provide the Owners
with details of any legal or administrative action involving such Relevant Person or the Vessel as soon as such action is instituted;
|
(e) |
they shall, and shall procure that each other Relevant Person will, obtain and promptly renew or procure the obtainment or renewal of and provide copies of,
from time to time, any necessary consents, approvals, authorisations, licenses or permits of any regulatory body or authority for the transactions contemplated under each Pertinent Document to which it is a party (including without
limitation to sell, charter and operate the Vessel);
|
(f) |
they shall not, and shall procure that each other Relevant Person will not, create, assume or permit to exist any Security Interest (other than any Permitted
Security Interest) of any kind upon any Pertinent Document to which such Relevant Person is a party, and if applicable, the Vessel;
|
(g) |
they shall at their own cost and shall procure that each other Relevant Person will:
|
|
(i) |
do all that such Relevant Person reasonably can to ensure that any Pertinent Document to which such Relevant Person is a party validly creates the obligations
and the Security Interests which such Relevant Person purports to create; and
|
|
(ii) |
without limiting the generality of paragraph (i), promptly register, file, record or enroll any Pertinent Document to which such Relevant Person is a party
with any court or authority in all Relevant Jurisdictions, pay any stamp duty, registration or similar tax in all Relevant Jurisdictions in respect of any Pertinent Document to which such Relevant Person is a party, give any notice or
take any other step which, is or has become necessary or desirable for any such Pertinent Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which such Relevant
Person creates;
|
(h) |
they shall notify the Owners as soon as possible (but in any event no later than ninety (90) days prior to the third anniversary of the charter period
commencement date under the BP Charter), together with any evidence requested by the Owners, whether the BP Charterer intends to and will (with irrevocable confirmation from the BP Charterer) extend the charter period of the BP Charter
in accordance with the terms thereunder;
|
(i) |
they shall, and shall procure that each other Relevant Person will (where applicable), notify the Owners as soon as they become aware of the occurrence of:
|
|
(i) |
any default by either the BP Charterer or Charterers of the terms of the BP Charter;
|
|
(ii) |
an event of default or termination event howsoever called under the terms of the BP Charter entitling either the Charterers or the BP Charterer to terminate
the BP Charter;
|
|
(iii) |
any default by any party of the terms of any Shipbuilding Document;
|
|
(iv) |
any event entitling the Charterers or the Builder to rescind the Contract;
|
|
(v) |
breach of any Sanctions; or
|
|
(vi) |
any Potential Termination Event or a Termination Event,
|
(j) |
they shall, and shall procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, on the sixth month
anniversary of the Delivery Date and at six-monthly intervals thereafter and otherwise upon the Owners’ and/or their financiers (if any) request from time to time and as soon as practicable after receiving such request, provide the
Owners with any additional financial or other information relating:
|
|
(i) |
to themselves and/or the Vessel (including, but not limited to the employment, condition, class records and location of the Vessel) and, to their best
knowledge having made due enquiry, to the BP Charterer, the Builder and the Refund Guarantor;
|
|
(ii) |
the terms and conditions of any sub-charter together with any other information relating to such sub-charter; and
|
|
(iii) |
to any other matter (which include without limitation, to their best knowledge having made due enquiry, any other matters relating to the BP Charterer, the
Builder and the Refund Guarantor) which may be reasonably requested by the Owners (or their financiers (if any)) at any time or which under the terms of the relevant Pertinent Document may be sought from the person in possession of such
information.
|
(k) |
without prejudice to Clause 45.1(q) (
Undertakings
),
comply, or procure compliance, and shall procure that each other Relevant Person will comply or procure compliance, with all laws or regulations relating to the Vessel and its construction, ownership, employment, operation, management
and registration, including the ISM Code, the ISPS Code, all Environmental Laws and the laws of the Vessel’s registry and shall procure that the Technical Manager and the Commercial Manager and the Vessel to be in the possession of
proper trading certificates and other vessel related documents and to comply with other relevant laws and regulations;
|
(l) |
the Vessel shall be classed with the Approved Classification Society and shall be free of all overdue recommendations and requirements;
|
(m) |
they shall not and ensure that neither the Other Charterer nor the Guarantor shall enter into any form of merger, sub-division, amalgamation, demerger,
reorganization, corporate reconstruction or change of ownership without the Owners’ prior consent;
|
(n) |
subject to Clause 45(v), they shall ensure that the Market Value of the Vessel will be tested at the following instances:
|
|
(i) |
on or about the date of this Charter, on the date falling six months thereafter and at six-monthly intervals thereafter (each such date the “
Market Value Test Date
”) and the Charterers shall procure a valuation report issued by the Approved Valuers evidencing such Market Value
applicable to a Market Value Test Date to be delivered to the Owners no later than that Market Value Test Date; and
|
|
(ii) |
if, in the opinion of the Owners, any volatile market fluctuations occurs that may affect the value of the Vessel or vessels of the similar type of the
Vessel, at any time at the request of the Owners;
|
|
(iii) |
at any time at the request of the Owners if the Owners have determined that the Market Value of the Vessel is likely to fall below an amount equal to 125% of
the then applicable Early Prepayment Sum;
|
|
(iv) |
valuation of the Market Value of the Vessel is required pursuant to Clause 45(v); and
|
|
(v) |
upon the occurrence of a Potential Termination Event or Termination Event, at any time at the request of the Owners,
|
(o) |
they shall notify the Owners immediately of:
|
|
(i) |
any Environmental Claim made against the Charterers or any subcharter of the Vessel in connection with the Vessel or any Environmental Incident;
|
|
(ii) |
arrest or detention of the Vessel;
|
|
(iii) |
any exercise or purported exercise of any lien on that Vessel or its Earnings or any requisition of that Vessel for hire;
|
|
(iv) |
any damage caused to or alteration of the Vessel for any reason whatsoever which results, or may be expected to result, in repairs on the Vessel which exceed
$1,000,000; or
|
|
(v) |
any casualty or occurrence as a result of which the Vessel has become or is, by the passing of time or otherwise, likely to become, a Major Casualty;
|
(p) |
they shall not permit the sub-chartering of the Vessel except in the following situations:
|
|
(i) |
the Vessel is let on a time charter basis for a period not exceeding twelve (12) months (inclusive of optional extension periods) unless
|
(q) |
they shall, and shall procure that each other Relevant Person (other than the Refund Guarantor and the Builder) will, comply with all applicable laws and
regulations in respect of Sanctions, and in particular, the Charterers shall effect and maintain a sanctions compliance policy to ensure compliance with all such laws and regulations implemented from time to time;
|
(r) |
they shall, and shall procure that each other Relevant Person (other than the BP Charterer, the Refund Guarantor and the Builder) and their respective
officers, directors and employees, will:
|
|
(i) |
conduct its business in compliance with all Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and/or Business Ethics Laws;
|
|
(ii) |
maintain systems, controls, policies and procedures designed to promote and achieve ongoing compliance with Anti-Money Laundering Laws, Anti-Terrorism
Financing Laws and/or Business Ethics Laws;
|
|
(iii) |
in respect of the Charterers, not use, or permit or authorize any person to directly or indirectly use, the Financing Amount for any purpose that would breach
any Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and/or Business Ethics Laws;
|
|
(iv) |
not lend, invest, contribute or otherwise make available the Financing Amount to or for any other person in a manner which would result in a violation of
Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and/or Business Ethics Laws.
|
(s) |
they shall, and shall procure that that each other Relevant Person will, promptly notify the Owners and provide all information in relation to its business
and operations which may be relevant for the purposes of ascertaining whether they are in compliance with all applicable laws and regulations relating to Sanctions, and in particular, the Charterers shall notify the Owners in writing
immediately upon being aware that any of the Charterers’ shareholders, directors, officers or employees is a Restricted Person or has otherwise become a target of Sanctions;
|
(t) |
they shall not appoint or permit to be appointed any manager of the Vessel save for an Approved Manager on terms acceptable to the Owners and their financiers
(if any) and such Approved Manager has (prior to accepting its appointment entered into a Manager’s Undertaking and, if required by the Owners, acceded to the Trust Deed);
|
(u) |
if at any time, the Market Value of the Vessel falls below the amount equivalent to 125% of the then applicable Early Prepayment Sum (the “
LTV Breach
” and the said difference between the Market Value of the Vessel and 125% of the then applicable Early Prepayment Sum shall be
referred to as the “
shortfall
”), the Charterers shall promptly, and in any event no later than the date falling thirty (30) days from
the earlier of (a) the Charterers’ receipt from the Owners notifying them of such LTV Breach and (b) the Charterers’ receipt of the relevant valuation of the Market Value, pay to the Owners to an account nominated by the Owners and
notified to the Charterers, without set-off or deduction, an amount in Dollars equivalent to that shortfall as deposit and such amount actually received by the Owners shall constitute to part of the Deposit then retained by the Owners.
|
(v) |
once the number of Fleet Vessels owned by the Group becomes less than five (the “
Relevant Time
”):
|
|
(i) |
the Charterers shall notify the Owners immediately of such occurrence;
|
|
(ii) |
the Owners shall have the right to request the Market Value of all the Fleet Vessels to be tested (at the Charterers’ costs) at any time as from the Relevant
Time and the Charterers shall ensure such Market Value be so tested (at the Charterers’ costs) immediately upon the Owners’ request; and
|
|
(iii) |
upon request by the Owners, the Charterers shall promptly and in any event no later than the date falling thirty (30) days from such request, pay to the
Owners to an account nominated by the Owners and notified to the Charterers, without set-off or deduction, an amount in Dollars as deposit an amount which will ensure that after payment of such deposit the Market Value of the Vessel is
not more than sixty per cent. (60%) of the amount equal to the then applicable Early Prepayment Sum and such amount actually received by the Owners shall become part of the Deposit then retained by the Owners;
|
(w) |
save with the prior written consent of the Owners, they shall not, and shall procure that no other Relevant Person shall, agree or enter into any transaction,
arrangement, document or do or omit to do anything which will have the effect of varying, amending, supplementing or waiving any term of any Shipbuilding Document or the BP Charter;
|
(x) |
they shall ensure that:
|
|
(i) |
all Earnings and any other amounts received by them in connection with the Vessel are paid into the Operating Account;
|
|
(ii) |
all operating expenses in connection with the Vessel are paid from the Operating Account or via the monthly budget from the manager’s bank account which shall
be credited from the Operating Account; and
|
|
(iii) |
the credit balance in the Operating Account shall not at any time as from the Delivery Date be less than $1,000,000,
|
(y) |
they shall not make or pay any dividend or other distribution (in cash or in kind) in respect of its share capital following the occurrence of a Potential
Termination Event or Termination Event;
|
(z) |
the Vessel shall be registered under the Buyers’ Nominated Flag State at all times;
|
(aa) |
they shall be responsible for losses directly or indirectly arising out of the defects of the design of the Vessel and/or the Charterers' negligence in the
supervision of the construction of the Vessel; and
|
(bb) |
they shall ensure that the Vessels to be maintained with all spare parts on board and on order and with all stores on board together with all records, logs,
plans, operating manuals and drawings in relation to the Vessel or the Vessel’s operations and/or maintenance.
|
46.1 |
Without prejudice to Clause 46.2 (
Inspection of Vessel
)
below, the Owners shall, after giving notice to the Charterers, be entitled to inspect or survey the Vessel or instruct a surveyor to carry out such survey on their behalf:
|
(a) |
to ascertain the condition of the Vessel and satisfy themselves that the Vessel is being properly repaired and maintained;
|
(b) |
in dry-dock if the Charterers have not dry-docked the Vessel in accordance with Clause 10(g) (
Periodical Dry-docking
); and
|
(c) |
for any other reason they consider necessary,
|
46.2 |
The Owners shall be entitled to exercise its rights of inspection or survey as described under Clause 46.1 (
Inspection of Vessel
) once a year at the cost of the Charterers and at any other time at the cost of the Owners (and, except where inspection or survey is carried out pursuant to
the following (a) or (b), without interference to the operation of the Vessel), save that (a) upon the occurrence of a Termination Event or Potential Termination Event or the occurrence of any major insurance claims (in the opinion of
the Owners) in respect of the Vessel, the Owners shall have the right to inspect or survey the Vessel or instruct a duly authorized surveyor to carry out such survey on their behalf at any time (and for the avoidance of doubt, more than
once a year) without prior notice to, and at the cost of, the Charterers; and (b) the Owners shall have the right to inspect or survey the Vessel or instruct a duly authorized surveyor to carry out such survey on their behalf at any
time prior to the Delivery Date. The Charterers shall procure that the Owners can fully exercise such rights of inspection and survey.
|
46.3 |
The Charterers shall also permit the Owners to inspect the Vessel’s log books whenever requested and shall whenever required by the Owners furnish them with
full information regarding any casualties or other accidents or damage to the Vessel.
|
48.1 |
The Owners and the Charterers hereby agree that any of the following events shall constitute a Termination Event:
|
(a) |
any Relevant Person fails to make any payment on the due date or on demand in accordance with the terms of any Pertinent Document to which it is a party,
unless such non-payment is caused by administrative or technical error and the relevant payment is made within five (5) Business Days of the relevant due date;
|
(b) |
the Charterers breach or omit to observe or perform any of their undertakings in Clause 45.1(a), 45.1(e), 45.1(f), 45.1(i), 45.1(k), 45.1(o), 45.1(q),
45.1(r), 45.1(s), 45.1(u), 45.1(v), 45.1(x)(iii), or 45.1(z) (
Undertakings
) or the Guarantor breaches or omits to observe or perform
any of its undertakings or the financial covenants contained under clause 11.14 (
financial covenants
) of the Guarantee;
|
(c) |
the Charterers fail to obtain and/or maintain the Insurances required under Clause 38 (
Insurance
) in accordance with the provisions thereof (or any insurer in respect of such Insurances cancels the Insurances or disclaims liability with respect thereto);
|
(d) |
any Relevant Person commits any other breach of, or omits to observe or perform, any of their other obligations or undertakings in this Charter or any
Pertinent Document (other than a breach referred to in paragraphs (a), (b) and (c) above) unless such breach or omission is in the opinion of the Owners, remediable and the Relevant Person remedies (or cause to remedy) such breach or
omission to the satisfaction of the Owners within five (5) Business Days of the occurrence of such breach or omission;
|
(e) |
any representation or warranty made by any Relevant Person in or pursuant to any Pertinent Document to which it is a party proves to be untrue or misleading
when it is made;
|
(f) |
any of the following occurs in relation to any Financial Indebtedness of the Charterers, each Other Charterer, the Guarantor or any member of the Group:
|
|
(i) |
any Financial Indebtedness of such entity is not paid when due or, if so payable, on demand after any applicable grace period has expired;
|
|
(ii) |
any Financial Indebtedness of such entity becomes due and payable, or capable of being declared due and payable, prior to its stated maturity date as a
consequence of any event of default and not as a consequence of the exercise of any voluntary right of prepayment;
|
|
(iii) |
a lease, hire purchase agreement or charter creating any Financial Indebtedness of such entity is terminated by the lessor or owner as a consequence of any
termination event or event of default (howsoever defined); or
|
|
(iv) |
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative
contract or transaction, relating to any Financial Indebtedness of such entity ceases to be available or becomes capable of being terminated or declared due and payable or cash cover is required or becomes capable of being required, as
a result of any termination event or event of default (howsoever defined);
|
(g) |
any of the following occurs in relation to the Charterers, each Other Charterer, the Guarantor or any member of the Group:
|
|
(i) |
such entity becomes, in the opinion of the Owners, unable to pay their debts as they fall due;
|
|
(ii) |
in respect of such entity, the value of its assets is less than its liabilities (taking into account contingent liabilities);
|
|
(iii) |
any administrative or other receiver is appointed over all or a substantial part of the assets of such entity unless as part of a solvent reorganisation which
has been approved by the Owners;
|
|
(iv) |
such entity makes any formal declaration of bankruptcy or any formal statement to the effect that they are insolvent or likely to become insolvent, or a
winding up or administration order is made in relation to such entity, or the members or directors of such entity pass a resolution to the effect that they should be wound up, placed in administration or cease to carry on business;
|
|
(v) |
a petition is presented in any Relevant Jurisdiction for the winding up or administration, or the appointment of a provisional liquidator, of such entity;
|
|
(vi) |
such entity petitions a court, or presents any proposal for, any form of judicial or non-judicial suspension or deferral of payments, reorganisation of their
debt (or certain of their debt) or arrangement with all or a substantial proportion (by number or value) of their creditors or of any class of them or with a minority proportion (by number or value) of their creditors or of any class of
them which would reasonably likely to have a Material Adverse Effect or any such suspension or deferral of payments, reorganisation or arrangement is effected by court order, contract or otherwise;
|
|
(vii) |
any meeting of the members or directors of such entity is summoned for the purpose of considering a resolution or proposal to authorise or take any action of
a type described in paragraph (iii), (iv), (v) or (vi);
|
|
(viii) |
,in any jurisdiction, any event occurs or any procedure is commenced which, in the opinion of the Owners, is similar to any of the foregoing referred to in
(ii) to and including (vii) above; or
|
|
(ix) |
any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction which affects any asset or assets of such
entity which is not discharged within fourteen (14) days;
|
(h) |
a Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) suspends or ceases or threatens to suspend or cease carrying on its
business;
|
(i) |
any consent, approval, authorisation, license or permit necessary to enable the Charterers or the BP Charterer to operate or charter the Vessel, the Builder
to sell and construct the Vessel, or any of Relevant Person to comply with any provision of Pertinent Document (as the case may be) and/or to ensure that the obligations of any Relevant Person under any Pertinent Document are legal,
valid, binding or enforceable (I) is not granted, (II) expires without being renewed, (III) is revoked or becomes liable to revocation or (IV) any condition of such a consent, approval, authorisation, license or permit is not fulfilled;
|
(j) |
any event or circumstance occurs which (in the opinion of the Owners) has or is reasonably likely to have a Material Adverse Effect;
|
(k) |
this Charter or any Pertinent Document or any Security Interest created by a Pertinent Document:
|
|
(i) |
is cancelled, terminated, rescinded or suspended or otherwise ceases to remain in full force and effect for any reason or no longer constitutes valid, binding
and enforceable obligations of any party to that document for any reason whatsoever; or
|
|
(ii) |
is amended or varied without the prior written consent of the Owners;
|
(l) |
a Relevant Person rescinds or purports to rescind or repudiates or purports to repudiate a Pertinent Document;
|
(m) |
the Security Interest constituted by any Pertinent Document is in any way imperiled or in jeopardy;
|
(n) |
any Termination Event (as defined in the Other Charter) occurs under the Other Charter;
|
(o) |
the occurrence of any of the following events;
|
|
(i) |
an event of default or termination event howsoever called under the terms of the BP Charter entitling either the BP Charterer or the Charterers to terminate
the BP Charter;
|
|
(ii) |
any default by any party of the terms of any Shipbuilding Document (including the occurrence of any Buyer’s Default) including, without limitation, any event
entitling the Charterers to rescind or terminate the Contract; or
|
|
(iii) |
breach of any Sanctions;
|
(p) |
Delivery does not occur on or prior to the Cancelling Date;
|
(q) |
there occurs:
|
|
(i) |
the filing of a petition or the making of an order or the passing of an effective resolution for the winding up of the bank issuing the Refund Guarantee
(other than for the purpose of reconstruction or amalgamation which has been previously approved in writing by the Owners) or the appointment of a receiver, administrator, compulsory manager, trustee, liquidator or other similar officer
has been made against the Refund Guarantor or any of its assets under the laws of any jurisdiction or the appointment of a receiver of the undertaking or property of the Refund Guarantor, or the insolvency of or suspension of payments
by the Refund Guarantor, or the making by the Refund Guarantor of any special arrangement or composition with the creditors of the Refund Guarantor, provided there is a the failure to replace the Refund Guarantor with an alternative
refund guarantor acceptable to the Charterers and the Owners; or
|
|
(ii) |
an event analogous to any of those set out at paragraph (i) above in relation to the Builder (disregarding the proviso thereto);
|
(r) |
a Total Loss has occurred in respect of the Vessel or any damage has occurred in respect of the Vessel which, in the opinion of Owners, with the passage of
time may result in a Total Loss of the Vessel or otherwise materially and adversely affects the value of the Vessel;
|
(s) |
the BP Charterer does not exercise its option to extend the charter period of the BP Charter beyond the third anniversary or, if such charter period extends
beyond its third anniversary, the fourth anniversary of the charter period commencement date thereunder unless the Charterers, subject to Clause 45.1(p), has entered into a Substitute Charter, and the Charterers have provided evidence
requested by the Owners relating to the entry into, and validity of, such Substitute Charter no later than one (1) month prior to the third anniversary and, if such charter period extends beyond its third anniversary, the fourth
anniversary (each a “
Notification Date
”) of the charter period commencement date of the BP Charter, provided
|
(t) |
if a Substitute Charter has been entered into pursuant to Clause 48.1(s) or pursuant to this Clause (t) (as a New Substitute Charter (as defined hereunder)
and the charter period under such Substitute Charter expires or is otherwise terminated prior to the Expiry Date, unless the Charterers, subject to Clause 45.1(p), has entered into another replacing Substitute Charter (each such
replacing Substitute Charter, the “
New Substitute Charter
”), and the Charterers have provided evidence requested by the Owners
relating to the entry into, and validity of, such New Substitute Charter no later than one (1) month prior to the expiry or termination date of the then existing Substitute Charter (each a “
New Notification Date
”), provided that if the Charterer does not enter into a New Substitute Charter by a New Notification Date non-entry thereof shall not constitute a
Termination Event under this Clause 48.1(t) if the Charterer (i) serves a notice of its intention to pay to the Owners as deposit an amount equal to 13.5% of the aggregate of the then applicable Early Prepayment Sum on the first Payment
Date to occur after that New Notification Date and (ii) such deposit shall be paid by the Charterers to an account nominated by the Owners and notified to the Charterers and received by the Owners (without set-off or deduction and
without counting the Charterhire instalment payable on that Payment Date) on such Payment Date and such amount actually received by the Owners shall become a part of the Deposit then retained by the Owners;
|
(u) |
there is a merger, amalgamation, demerger or corporate reconstruction of the Charterer, the Other Charterer and the Guarantor without the Owners’ prior
written consent;
|
(v) |
the Guarantor is de-listed from the NASDAQ Capital Markets or the trading of its shares is suspended for more than 5 Business Days for any reason whatsoever;
|
(w) |
there is a change in control of ownership or control of the Charterers or there is a change of control in the case of the Guarantor that set out in Clause
44.1(a) unless prior written consent from the Owners has been obtained prior to such change;
|
(x) |
the Refund Guarantee ceases to be valid and enforceable (unless, for the avoidance of doubt, Delivery has already taken place); or
|
(y) |
there is any occurrence of any litigation, arbitration or administrative proceedings or investigations involving a Relevant Person which has been commenced or
taken and has been adversely determined and which would have or is reasonably likely to have a Material Adverse Effect.
|
48.2 |
Subject to Clause 48.3 below, upon the occurrence of a Termination Event which is continuing on or after Delivery whereupon the then applicable Early
Termination Price shall become immediately due and payable by the Charterers unless this Charter is terminated pursuant to Clause 48.3.The Owners shall notify the Charterers of occurrence of such Termination Event (the "
Termination Event Notice
") other than if the relevant Termination Event is an event described under Clause 48.1(g), the Owners are not
required to serve such a notice to the Charterers.
|
48.3 |
If
|
|
(i) |
a Termination Event Notice is served by the Owners to the Charterers; or
|
|
(ii) |
a Termination Event has occurred on or after Delivery pursuant to Clause 48.1(g); or
|
|
(iii) |
a Termination Event has occurred prior to Delivery,
|
|
(A) |
in the case where the relevant Termination Event is an event described under Clause 48.1(a) or Clause 48.1(g), to notify the Charterers at any time of the
Owners’ intention to terminate this Charter whereupon this Charter shall immediately terminate, provided that the Owners’ rights under Clause 40.3 shall remain until this Charter is so terminated;
|
|
(B) |
in the case of paragraph (i) above and if the relevant Termination Event is not an event described under Clause 48.1(a) or Clause 48.1(g), to notify the
Charterers of the Owners’ intention to terminate this Charter (the “
Termination Notice
”) whereupon, unless the Charterers request in
writing for a period no longer than 30 days commencing from the date of the Termination Notice (such period the “
Charterers’ Remarketing
Period
”) before this Charter can be so terminated and then this Charter shall terminate on the earlier of the end of the Charterers’ Remarketing Period or the completion of the sale of the Vessel pursuant to Sub-paragraph B(1)
or (B)(2) below:
|
|
(1) |
the Charterers may submit to the Owners evidence (to the satisfaction of the Owners) of a purchaser offering by way of a firm offer (on the basis that sale
and purchase of the Vessel shall take place within the Charterers’ Remarketing Period and subject to customary closing conditions and Owners’ investigation on know your client issues) an amount at least equal to the then current amount
of the Early Termination Price following which the Owners will use reasonable endeavors to enter into a memorandum of agreement (in a form acceptable to the Owners and the relevant counterparty buyer and on the basis that sale and
purchase of the Vessel shall take place within the Charterers’ Remarketing Period) pursuant to such offer; or
|
|
(2) |
the Charterers may elect by delivering a written notice to the Owners to purchase the Vessel by payment of the then current amount of the Early Termination
Price (which has become due and payable pursuant to Clause 48.2) and such payment shall be made no later than the end of the Charterers’ Remarketing Period and upon receipt of such payment the Owners shall transfer the title of the
Vessel to the Charterers in accordance with Clause 40.4,
|
|
(C) |
in the case of paragraph (iii), in accordance with Clause 6.1(a)(ii)(A) of the Pre-delivery Assignment, to require the Charterers to pay the Pre-delivery
|
48.4 |
For the avoidance of doubt, notwithstanding any action taken by the Owners following a Termination Event, the Charterers shall remain liable for the
outstanding obligations on their part to be performed under this Charter.
|
48.5 |
Without limiting the generality of the foregoing or any other rights of the Owners, upon the occurrence of a Termination Event which is continuing, the Owners
shall have the sole and exclusive right and power to (i) settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to or pertaining to the Vessel and this Charter and (ii) make proof of loss, appear in
and prosecute any action arising from any policy or policies of insurance maintained pursuant to this Charter, and settle, adjust or compromise any claims for loss, damage or destruction under, or take any other action in respect of,
any such policy or policies, (iii) change or appoint a new manager (whether or not it is an Approved Manager) for the Vessel and the appointment of the originally appointed Approved Manager may be terminated immediately without any
recourse to the Owners.
|
48A.1 |
If it becomes unlawful in any applicable jurisdiction for the Owners to perform any of their obligations as contemplated by this Charter or the MOA or their
financiers to perform their obligations under the Financial Instruments, the Owners shall notify the Charterers of this event and the Charterers shall be required:
|
|
(i) |
if such circumstance occurs on or after Delivery, to pay the Early Termination Price; or
|
|
(ii) |
if such circumstance occurs prior to Delivery, to pay the Pre-delivery Termination Sum,
|
48A.2 |
If it is or has become:
|
|
(i) |
unlawful or prohibited, whether as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing
law is or will be interpreted or applied; or
|
|
(ii) |
contrary to, or inconsistent with, any regulation,
|
|
(A) |
if such circumstance occurs on or after Delivery, to pay the Early Termination Price; or
|
|
(B) |
if such circumstance occurs prior to Delivery, to pay the Pre-delivery Termination Sum,
|
48A.3 |
If there is a breach of 45.1(i), 45.1(q), 45.1(r) or 45.1(s) in any such case on the basis that reference to “the People’s Republic of China” applies to the
definition of “Restricted Person” or paragraph (e) of the definition of “Sanctions Authority” applies to the definition of “Sanctions Authority”, the Charterers shall be required:
|
|
(A) |
if such circumstance occurs on or after Delivery, to pay the Early Termination Price; or
|
|
(B) |
if such circumstance occurs prior to Delivery, to pay the Pre-delivery Termination Sum,
|
(a) |
If the Early Termination Price becomes payable in accordance with Clause 48A.1 or Clause 48A.2 or Clause 48A.3 the same shall (in each such case) be payable
in consideration of the purchase and transfer of the legal and beneficial title of the Vessel pursuant to Clause 51. The day on which the Early Termination Price is paid pursuant to Clause 48A1, Clause 48A2 or Clause 48A3 is a “
Mandatory Sale Date
” and such transfer of Vessel provided under this paragraph (a) is a “
Mandatory Sale
”.
|
(b) |
The Pre-delivery Termination Sum becomes payable in accordance with Clause 48A.1 or Clause 48A.2 or Clause 48A.3 the same shall (in each such case) be payable
in consideration of the Pre-delivery Releases pursuant to the terms of the Pre-delivery Assignment,
|
49.1 |
Subject to Clause 49.2 (
Early Termination Option
), the
Owners hereby grant to the Charterers an early termination option to require the Owners to sell all of the Owners’ beneficial and legal right, title and interest in the Vessel and all belongings to her, to the Charterers upon the terms
and conditions of this Charter.
|
49.2 |
Subject to the other terms and conditions of this Charter, the Early Termination Option shall only be exercisable by the Charterers on an Early Termination
Date provided that no Termination Event has occurred and is continuing and all obligations, duties, liabilities and indemnities of the Charterers under the Leasing Documents have been fully performed and (if applicable) paid.
|
49.3 |
The Early Termination Date:
|
(a) |
shall not fall on a date falling before the third anniversary of the Delivery Date; and
|
(b) |
shall fall on a Payment Date.
|
49.4 |
The Early Termination Option may be exercised by the Charterers by giving the Owners a notice to such effect (“
Early Termination Notice
”) at least sixty (60) days prior to the relevant intended Early Termination Date of its intention to exercise the Early Termination Option.
|
49.5 |
The Early Termination Notice shall be signed by a duly authorised officer or attorney of the Charterers and shall contain the following information:
|
(a) |
the relevant Early Termination Date; and
|
(b) |
the relevant Early Termination Price,
|
49.6 |
The Charterers may only serve an Early Termination Notice once throughout the duration of the Charter Period (unless otherwise agreed by the Owners in their
absolute discretion).
|
49.7 |
Upon the exercise of the Early Termination Option, the Owners and the Charterers shall thereupon perform their respective obligations referred to in Clause 51
(
Sale of the
Vessel
) and the Early Termination Price shall be paid by the Charterers on
the Early Termination Date.
|
50.1 |
The Charterers shall, on the Expiry Date (unless the Early Termination Option has been exercised and the Early Termination Price has been paid in accordance
with the terms of this Charter), have the right to purchase from the Owners all of the Owners’ beneficial and legal rights, title and interest in the Vessel and all belongings to her (the “
Purchase Option
”) upon payment to the Owners the Final Purchase Option Price in full (subject to Clause 36.15) in accordance with Clause 51 (
Sale of the Vessel
), provided that the Charterers shall give the Owners a notice confirming the Charterers’ intention to exercise the Purchase Option at least
sixty (60) days prior to the Expiry Date and such notice shall be irrevocable. If the Charterers do not exercise the Purchase Option, the Charterers shall redeliver the Vessel to the Owners in accordance with Clause 40.6 on the Expiry
Date.
|
51.1 |
The exercise of any of the Purchase Option or the Early Termination Option or the completion of the Mandatory Sale shall take place on the Expiry Date or the
Early Termination Date or the Mandatory Sale Date (as the case may be) whereupon the Owners will sell to the Charterers (or their nominee), and the Charterers (or their nominee) will purchase from the Owners, all the legal and
beneficial interest and title in the Vessel, for the Final Purchase Option Price or Early Termination Price on an “as is where is” basis and on the following terms and conditions:
|
(a) |
the Charterers expressly agree and acknowledge that no condition, warranty or representation of any kind is or has been given by or on behalf of the Owners in
respect of the Vessel or any part thereof, and accordingly the Charterers confirm that they have not, in entering into this Charter, relied on any condition, warranty or representation by the Owners or any person on the Owners’ behalf,
express or implied, whether arising by law or otherwise in relation to the Vessel or any part thereof, including, without limitation, warranties or representations as to the description, suitability, quality, merchantability, fitness
for any purpose, value, state, condition, appearance, safety, durability, design or operation of any kind or nature of the Vessel or any part thereof, and the benefit of any such condition, warranty or representation by the Owners is
hereby irrevocably and unconditionally waived by the Charterers to the extent permissible under applicable law;
|
(b) |
the Charterers hereby also waive any rights which they may have in tort in respect of any of the matters referred to under paragraph (a) above and irrevocably
agree that the Owners shall have no greater liability in tort in respect of any such matter than they would have in contract after taking account of all of the foregoing exclusions. No third party making any representation or warranty
relating to the Vessel or any part thereof is the agent of the Owners nor has any such third party authority to bind the Owners thereby. Notwithstanding anything contained above, nothing contained herein is intended to obviate, remove
or waive any rights or warranties or other claims relating thereto which the Charterers (or their nominee) or the Owners may have against the manufacturer or supplier of the Vessel or any third party;
|
(c) |
the Vessel shall be free from any registered mortgages incurred by the Owners (save for those mortgages, liens, encumbrances and debts arising out of or in
connection with the Charter or the Pertinent Documents or any other Permitted Security);
|
(d) |
the Final Purchase Option Price or Early Termination Price shall be paid by (or on behalf of) the Charterers to the Owners on the Expiry Date or the Early
Termination Date or the Mandatory Sale Date (as the case may be) together with unpaid amounts of Charterhire and other moneys owing by or accrued or due from the Charterers under this Charter on or prior to the Expiry Date or the Early
Termination Date or the Mandatory Sale Date (as the case may be) which remain unpaid; and
|
(e) |
concurrently with the Owners receiving irrevocable payment of the Final Purchase Option Price or, as the case may be, the applicable Early Termination Price
and all other moneys payable under this Charter in full pursuant to the terms of this Charter, the Owners shall (save in the event of Total Loss) (at the Charterer’s cost) transfer the legal and beneficial ownership of the Vessel on an
“as is where is” basis to the Charterers or their nominees and shall (at the Charterers’ cost) execute a bill of sale and a protocol of delivery and acceptance evidencing the same and any other document strictly necessary to transfer
the title of the Vessel to the Charterers (and to the extent required for such purposes, the Vessel shall be deemed first to have been redelivered to the Owners), provided that the Owners shall not be obliged to transfer the legal and
beneficial interest in the Vessel to the Charterers in any event unless the Owners are satisfied that no Termination Event has occurred and is continuing and all obligations, duties, liabilities and indemnities of the Charterers under
the Pertinent Documents have been fully performed and (if applicable) paid.
|
52.1 |
The Charterers shall pay such amounts to the Owners, on the Owners’ demand, in respect of all claims, expenses, liabilities, losses, fees (including but not
limited to any vessel registration and tonnage fees or any tax incurred by the Owners as a result of the operation and/or trading of the Vessel) suffered or incurred by or imposed on the Owners arising from this Charter and any
Pertinent Document, including but not limited to (i) in connection with delivery, possession, performance, control, registration, repair, survey, insurance, maintenance, manufacture, purchase, ownership and operation of the Vessel by
the Owners, (ii) costs related to the prevention or release of liens or detention of or requisition, use, operation or redelivery, sale or disposal of the Vessel or any part of it and (iii) enforcing the Owners’ rights under this
Charter or any Pertinent Document, in each case of paragraphs (i) to (iii), whether prior to, during or after termination of the leasing of this Charter and whether or not the Vessel is in the possession or the control of the Charterers
or otherwise. Without prejudice to its generality, this Clause covers any claims, expenses, liabilities and losses which arise, or are asserted, under or in connection with any law relating to safety at sea, the ISM Code, the ISPS Code,
the MARPOL Protocol, any Environmental Law, any Sanctions or any Anti- Money Laundering Laws, Anti-Terrorism Financing Laws or Business Ethics Laws.
|
52.2 |
The Charterers agree to indemnify the Owners against all consequences or liabilities arising from the Master, officers or agents signing Bills of Lading or
other documents.
|
52.3 |
In consideration of the Charterers requesting the Other Owners to charter the Other Vessels to the Other Charterers under the Other Charters, the Charterers
hereby irrevocably and unconditionally undertake to pay immediately on demand from the Owners such amounts in respect of all claims, expenses, liabilities, losses, fees of every kind and nature and all other moneys due, owing and/or
payable to the Other Owners (or any of them) under or in connection with the Other Charters (or any of them), and to indemnify and hold the Other Owners harmless against all such moneys, costs, fees and expenses.
|
52.4 |
All rights which the Charterers have at any time (whether in respect of this Charter or any other transaction) against the Other Charterer or any Relevant
Person shall be fully subordinated to the rights of the Owners under the Pertinent Documents and until the end of this Charter and unless the Owners otherwise direct, the Charterers shall not exercise any rights which it may have
(whether in respect of this Charter or any other transaction) by reason of performance by it of its obligations under the Pertinent Documents or by reason of any amount becoming payable, or liability arising, under this Clause:
|
(a) |
to be indemnified by the Other Charterer or such Relevant Person;
|
(b) |
to claim any contribution from any third party providing security for, or any other guarantor of, the Other Charterer’s or such Relevant Person’s obligations
under the Pertinent Documents;
|
(c) |
to take any benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Other Charterer or such Relevant Person under
the Pertinent Documents or of any other guarantee or security taken pursuant to, or in connection with, the Pertinent Documents by any of the aforesaid parties;
|
(d) |
to bring legal or other proceedings for an order requiring any of the Other Charterer or such Relevant Person to make any payment, or perform any obligation,
in respect of any Pertinent Document;
|
(e) |
to exercise any right of set-off against any of the Other Charterer or such Relevant Person; and/or
|
(f) |
to claim or prove as a creditor of any of the Other Charterer or such Relevant Person,
|
52.5 |
The Charterers hereby irrevocably agree to indemnify and hold harmless the Owners against any claim, expense, liability or loss reasonably incurred by the
Owners in liquidating or employing deposits from their financiers or third parties to fund the acquisition of the Vessel pursuant to the MOA and the Contract.
|
52.6 |
Notwithstanding anything to the contrary herein (but subject and without prejudice to Clause 33 (
Cancellation
) ) and without prejudice to any right to damages or other claim which the Charterers may have at any time against the Owners under this Charter, the indemnities provided by the
Charterers in favour of the Owners shall continue in full force and effect notwithstanding any breach of the terms of this Charter or termination of this Charter pursuant to the terms hereof or termination of this Charter by the Owners.
|
52.7 |
The obligations of the Charterers under this Clause 52 and in respect of any Security Interest created pursuant to the Security Documents will not be affected
or discharged by an act, omission, matter or thing which would reduce, release or prejudice any of its obligations
|
(a) |
any time, waiver or consent granted to, or composition with, any Relevant Person or other person;
|
(b) |
the release of any other Relevant Person or any other person under the terms of any composition or arrangement with any creditor of a Relevant Person or any
of its affiliates;
|
(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 Relevant Person 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 Relevant Person or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Leasing Document or
any other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Security Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
53.1 |
All Charterhire, the Pre-delivery Upfront Charterhire, the Advance Charterhire, payment of the Final Purchase Option Price or Early Termination Price and any
other payment made from any Relevant Person to the Owners under a Leasing Document shall be paid punctually:
|
(a) |
without any form of set-off (except in the case of the Advance Charterhire, each Pre-delivery Upfront Charterhire, the Deposit Refund, the Final Purchase
Option Price and the Early Termination Price which shall be set off in accordance with Clause 36.2, Clause 36.3 and (in respect of the Final Purchase Option Price or the Early Termination Price) Clause 36.15respectively), cross-claim or
condition and in the case of Charterhire, the Pre-delivery Upfront Charterhire, Advance Charterhire, the Deposit, the Early Prepayment Sum or the Final Purchase Option Price, without previous demand unless expressly permitted under the
terms of the Leasing Documents or otherwise agreed with the Owners; and
|
(b) |
free and clear of any tax deduction or withholding unless required by law.
|
53.2 |
Without prejudice to Clause 53.1 (
No Set-off or Tax Deduction
),
if the Owners are required by law to make a tax deduction from any payment:
|
(a) |
the Owners shall notify the Charterers as soon as they become aware of the requirement; and
|
(b) |
the amount due in respect of the payment shall be increased by the amount necessary to ensure that the Owners receive and retain (free from any liability
relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which they would otherwise have received.
|
53.3 |
In this Clause “
tax deduction
” means any deduction or
withholding for or on account of any present or future tax, other than a FATCA Deduction.
|
54.1 |
This Clause 54 (
Increased Costs
) applies if the Owners
notify the Charterers that they (or their financiers) consider that as a result of:
|
(a) |
the introduction or alteration after the date of this Charter of a law or an alteration after the date of this Charter in the manner in which a law is
interpreted or applied (disregarding any effect which relates to the application to payments under this Charter of a tax on the Owners' overall net income); or
|
(b) |
complying with any regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Owners allocates
capital resources to their obligations under this Charter) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Charter,
|
54.2 |
In this Clause 54 (
Increased Costs
), “
increased cost
” means, in relation to the Owners and the Owners’ financiers:
|
(a) |
an additional or increased cost incurred as a result of, or in connection with, the Owners or the Owners’ parent company or the Owners’ financiers (if any)
having entered into, or being a party to, this Charter, of funding the acquisition of the Vessel pursuant to the MOA or performing their obligations under this Charter;
|
(b) |
a reduction in the amount of any payment to the Owners under this Charter or in the effective return which such a payment represents to the Owners or the
Owners’ parent company or the Owners’ financiers (if any) on their capital;
|
(c) |
a reduction in the amount of any payment to the Owners’ financiers (if any) under their financing arrangements and relevant Financial Instruments or in the
effective return which such a payment represents to the Owners’ financiers (if any) or on their capital;
|
(d) |
an additional or increased cost of funding the acquisition of the Vessel pursuant to the MOA; or
|
(e) |
a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Owners under this Charter,
|
54.3 |
Subject to the terms of Clause 54.1 (
Increased Costs
),
the Charterers shall pay to the Owners, upon the Owners' demand and production of reasonable evidence thereto, the amounts which the Owners from time to time notify the Charterers to be necessary to compensate the Owners for the
increased cost.
|
54.4 |
If any sum due from the Charterers to the Owners under this Charter or any other Pertinent Document or under any order or judgment relating thereto has to be
converted from the currency in which this Charter or such Pertinent Document provided for the sum to be paid (the “
Contractual Currency
”)
into another currency (the “
Payment Currency
”) for the purpose of:
|
(a) |
making or lodging any claim or proof against the Charterers, whether in their liquidation, any arrangement involving them or otherwise; or
|
(b) |
obtaining an order or judgment from any court or other tribunal; or
|
(c) |
enforcing any such order or judgment;
|
55.1 |
The Parties agree to keep the terms and conditions of this Charter and any other Leasing Documents (the “
Confidential Information
”) strictly confidential, provided that a Party may disclose Confidential Information in the following cases:
|
(a) |
it is already known to the public or becomes available to the public other than through the act or omission of the disclosing Party;
|
(b) |
it is required to be disclosed under the applicable laws of any Relevant Jurisdiction, Stock Market regulation, the US Securities and Exchange Commission’s
rules or by a governmental order, decree, regulation or rule (provided that the disclosing Party shall give written notice of such required disclosure to the other Party prior to the disclosure);
|
(c) |
in filings with a court or arbitral body in proceedings in which the Confidential Information is relevant and in discovery arising out of such proceedings;
|
(d) |
to (or through) whom a Party assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more
Pertinent Document (as permitted by the terms thereof), provided that such person receiving Confidential Information shall undertake that it would not disclose Confidential Information to any other party save for circumstances arising
which are similar to those described under this Clause or such other circumstances as may be permitted by all Parties;
|
(e) |
to any permitted subcharterer of the Vessel provided that such person receiving Confidential Information shall undertake that it would not disclose
Confidential Information to any other party save for circumstances arising which are similar to those described under this Clause or such other circumstances as may be permitted by all Parties;
|
(f) |
to any of the following persons on a need to know basis:
|
|
(i) |
a shareholder or an Affiliate of either Party or a party referred to in either paragraph (d) or (e) (including the employees, officers and directors thereof);
|
|
(ii) |
professional advisers retained by a disclosing party; or
|
|
(iii) |
persons advising on, providing or considering the provision of financing to the disclosing party or an Affiliate,
|
(g) |
with the prior written consent of all Parties.
|
58.1 |
Any settlement or discharge under any Leasing Document between the Owners and any Relevant Person shall be conditional upon no security or payment to the
Owners by any Relevant Person or any other person being set aside, adjusted or ordered to be repaid, whether under any insolvency law or otherwise.
|
58.2 |
If the Owners consider that an amount paid or discharged by, or on behalf of, a Relevant Person or by any other person in purported payment or discharge of an
obligation of that Relevant Person to the Owners under the Leasing Documents is capable of being avoided or otherwise set aside on the liquidation or administration of that Relevant Person or otherwise, then that amount shall not be
considered to have been unconditionally and irrevocably paid or discharged for the purposes of the Leasing Documents.
|
61.1 |
Defined terms.
For the purposes of Clause 53 (
No Set-off of Tax Deduction
) and this Clause 61 (
FATCA
), the following terms shall have the following meanings:
|
|
(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 IRS, the US government or
any governmental or taxation authority in any other jurisdiction.
|
61.2 |
FATCA Information.
|
(a) |
Subject to paragraph (c) below, each Relevant Party shall, on the date of this Charter, and thereafter within ten Business Days of a reasonable request by
another Relevant Party:
|
|
(i) |
confirm to that other party whether it is a FATCA Exempt Party or is not a FATCA Exempt Party; and
|
|
(ii) |
supply to the requesting party (with a copy to all other Relevant Parties) such other form or forms (including IRS Form W-8 or Form W-9 or any successor or
substitute form, as applicable) and any other documentation and other information relating to its status under FATCA (including its applicable “pass thru percentage” or other information required under FATCA or other official guidance
including intergovernmental agreements) as the requesting party reasonably requests for the purpose of the requesting party’s compliance with FATCA .
|
(b) |
If a Relevant Party confirms to any other Relevant Party that it is a FATCA Exempt Party or provides an IRS Form W-8 or W-9 showing 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, or that the said form provided has ceased to be correct or valid, that party shall so notify all other Relevant Parties or provide the
relevant revised form, as applicable, reasonably promptly.
|
(c) |
Nothing in this clause shall oblige any Relevant Party to do anything which would or, in its reasonable opinion, might constitute a breach of any law or
regulation, any policy of that party, any fiduciary duty or any duty of confidentiality, or to disclose any confidential information (including, without limitation, its tax returns and calculations); provided, however, that nothing in
this paragraph shall excuse any Relevant Party from providing a true, complete and correct IRS Form W-8 or W-9 (or any successor or substitute form where applicable). Any information provided on such IRS Form W-8 or W-9 (or any
successor or substitute forms) shall not be treated as confidential information of such party for purposes of this paragraph.
|
(d) |
If a Relevant Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with the provisions of this
Charter or the provided information is insufficient under FATCA, then:
|
|
(i) |
if that party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such party shall be treated for the purposes of this Charter and the
Pertinent Documents as if it is a FATCA Non-Exempt Party; and
|
|
(ii) |
if that party failed to confirm its applicable passthru percentage then such party shall be treated for the purposes of this Charter and the Pertinent
Documents (and payments made thereunder) as if its applicable passthru percentage is 100%,
|
61.3 |
FATCA Deduction and gross-up by Relevant Party
|
(a) |
If the representation made by the Charterers under Clause 44.1(p) (
Representations and Warranties
) proves to be untrue or misleading such that the Charterers are required to make a FATCA Deduction, the Charterers shall make the FATCA Deduction and any payment required in connection
with that FATCA Deduction within the time allowed and in the minimum amount required by FATCA.
|
(b) |
If the Charterers are required to make a FATCA Deduction then the Charterers shall increase the payment due from them to the Owners to an amount which (after
making any FATCA Deduction) leaves an amount equal to the payment which would have been due if no FATCA Deduction had been required.
|
(c) |
The Charterers shall promptly upon becoming aware that they must make a FATCA Deduction (or that there is any change in the rate or basis of a FATCA
Deduction) notify the Owners accordingly. Within thirty (30) days of the Charterers making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the Charterers shall deliver to the Owners evidence
satisfactory to the Owners that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the relevant governmental or taxation authority.
|
61.4 |
FATCA Deduction by Owners
|
61.5 |
FATCA Mitigation
|
62.1 |
The Charterers shall not assign this Charter except with the Owners’ prior consent in writing.
|
62.2 |
The Owners may assign any of their rights or transfer by novation any of their rights and obligations under the Leasing Documents to any of the Other Owners,
a financial institution, a trust, a fund, a leasing company or any other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans securities or other financial assets.
|
62.3 |
Without limiting the generality of Clause 62.2:
|
(a) |
the Owners are entitled to enter into certain funding arrangements with their financier(s), including but not limited to, an affiliate of the Owners or any
other banks and financial institutions acceptable to the Owners in their sole discretion (the "
Mortgagee
");
|
(b) |
the Owners may do any of the following as security for the funding arrangements referred to in paragraph (a) above:
|
|
(i) |
execute a ship mortgage over the Vessel or any other Financial Instrument in favour of a Mortgagee (or its agent, trustee or nominee);
|
|
(i) |
assign their rights and interests to, in or in connection with this Charter or any other Leasing Documents in favour of a Mortgagee (or its agent, trustee or
nominee);
|
|
(ii) |
assign their rights and interests to, in or in connection with the Insurances, the Earnings and the Requisition Compensation of the Vessel in favour of the
Mortgagee (or its agent, trustee or nominee); and
|
|
(ii) |
enter into any other document or arrangement which is necessary to give effect to such financing arrangements;
|
(c) |
the Charterers undertake to comply, and provide such information and documents required to enable the Owners to comply, with all such instructions or
directions in regard to the employment, insurances, operation, repairs and maintenance of the Vessel as laid down in any Financial Instrument or as may be directed from to time during the currency of this Charter by the Mortgagee (or
its agent, trustee or nominee) in conformity with any Financial Instrument. The Charterers further agree and acknowledge all relevant terms, conditions and provisions of each Financial Instrument (if any) and agree to acknowledge this
in writing in any form that may be required by the Mortgagee (or its agent, trustee or nominee); and
|
(d) |
during the Charter Period a change in the registered or beneficial ownership of the Vessel or the Owners (by sale of shares in the Owners or other
transactions having the same effect) may be effected without the Charterers’ consent, provided always that, in the event of change in the registered or beneficial ownership of the Vessel, notwithstanding such change, this Charter would
continue on identical terms (save for logical, consequential or mutually agreed amendments). The Guarantor and the Charterers shall (where applicable) remain jointly and severally liable to the aforesaid new owner of the Vessel for its
performance of all obligations pursuant to this Charter after change of the registered and/or beneficial ownership of the Vessel or the Owners from the Owners to such new owner and agree and undertake to enter into any such usual
documents as the Owners shall reasonably require to complete or perfect the transfer of the Vessel (with the benefit and burden of this Charter) pursuant to this Clause.
|
(e) |
All expenses arising out of assignment or transfer of this Charter as per Clause 62 shall be for the Owner’s account subject to no Termination Event or
Potential Termination Event having occurred or being continuing at the relevant time.
|
(a) |
This Charter and any non-contractual obligations arising under or in connection with it, shall be governed by and construed in accordance with English law.
|
(b) |
Any dispute arising out of or in connection with this Charter (including a dispute regarding the existence, validity or termination of this Charter or any
non-contractual obligation arising out of or in connection with this Charter) (a "
Dispute
")) shall be referred to and finally
resolved by arbitration in London in accordance with the Arbitration Act 1996 or any statutory
|
(c) |
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 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 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 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 he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
|
(d) |
Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated above.
|
(e) |
The language of the arbitration shall be English.
|
64.1 |
In this Charter, unless as expressly defined otherwise, the following capitalized terms shall have the meanings ascribed to them below:
|
|
(a) |
the Advance Charterhire;
|
|
(b) |
the Pre-delivery Upfront Charterhire;
|
|
(c) |
the Pre-delivery Charterhire; and
|
|
(d) |
the Quarter Charterhire.
|
|
(a) |
the Estimated Financing Amount; minus
|
|
(b) |
the Pre-delivery Instalment Balance at such time.
|
|
(a) |
the Indicative Amount applicable to that time;
|
|
(b) |
the amount of any outstanding Quarter Charterhire due and unpaid at such relevant time (or if such relevant time is not a Payment Date, due on the Payment
Date immediately preceding such relevant time but unpaid) and, if such relevant time is not a Payment Date, plus the amount of the Adjusted Quarter Charterhire;
|
|
(c) |
the amount of the applicable Early Termination Fee if the Early Termination Date under Clause 49 occurs prior to the fifth anniversary of the Delivery Date;
|
|
(d) |
if the Early Termination Price becomes payable under Clause 48.2 or, as the case may be, 48.3, the Early Termination Fee plus an amount equal to 2 per cent.
(2%) of the Indicative Amount applicable to that time;
|
|
(e) |
Breakfunding Costs;
|
|
(f) |
legal costs incurred as a result of the early termination of the Charter;
|
|
(g) |
any other amount payable under the terms of any Pertinent Document; and
|
|
(h) |
any other costs incurred by the Owners as a result of the early termination of the Charter including without limitation any costs as a result of the
termination of any financing by the Owners in connection with the Vessel,
|
|
(a) |
except to the extent that they fall within paragraph (b),
|
|
(i) |
all freight, hire and passage moneys;
|
|
(ii) |
compensation payable to the Charterers in the event of requisition of the Vessel for hire;
|
|
(iii) |
remuneration for salvage and towage services;
|
|
(iv) |
demurrage and detention moneys;
|
|
(v) |
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Vessel; and
|
|
(vi) |
all moneys which are at any time payable under any Insurances in respect of loss of hire (if any); and
|
|
(b) |
if and whenever the Vessel is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other persons, that
proportion of the net receipts of the relevant pooling or sharing arrangements which is attributable to the Vessel.
|
|
(a) |
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or which relates to any Environmental Law; or
|
|
(b) |
any claim by any other person which relates to an Environmental Incident,
|
|
(a) |
any release of Environmentally Sensitive Material from the Vessel;
|
|
(b) |
any incident in which Environmentally Sensitive Material is released from a vessel other than the Vessel and which involves a collision between the Vessel and
such other vessel or some other incident of navigation or operation, in either case, in connection with which the Vessel is actually liable to be arrested, attached, detained or injuncted and/or
|
|
(c) |
any other incident involving the Vessel in which Environmentally Sensitive Material is released otherwise than from the Vessel and in connection with which
the Vessel is actually arrested and/or where the Owners and/or the Charterers and/or any other operator or manager of the Vessel is at fault or otherwise liable to any legal or administrative action.
|
|
(a) |
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;
|
|
(b) |
under any loan stock, bond, note or other security issued by the debtor;
|
|
(c) |
under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
|
|
(d) |
under a financial lease, a deferred purchase consideration arrangement (other than deferred payments for assets or services obtained on normal commercial
terms in the ordinary course of business) or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;
|
|
(e) |
under any foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the
agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or
|
|
(f) |
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within paragraphs
(a) to (e) if the references to the debtor referred to the other person.
|
|
(a) |
if such Determination Date falls on a Reference Date, the Reference Amount corresponding to that Reference Date; or
|
|
(b) |
if such Determination Date does not fall on any Reference Date, the Reference Amount corresponding to the Reference Date following immediately before such
Determination Date,
|
|
(a) |
all policies and contracts of insurance, including entries of the Vessel in any protection and indemnity or war risks association, which are effected in
respect of the Vessel or otherwise in relation to it whether before, on or after the date of this Charter; and
|
|
(b) |
all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any
claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Charter.
|
|
(a) |
in relation to the Vessel or any other Fleet Vessel at any relevant time, the market value of the Vessel as determined by a valuation prepared:
|
|
i. |
on a date no earlier than fifteen (15) days previously (provided that the requirement in this paragraph (a) is not applicable when determining the Market
Value of the Vessel and the Fleet Vessel pursuant to Clause 45.1(v));
|
|
ii. |
with or without physical inspection of that Vessel;
|
|
iii. |
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
existing charter or other contract of employment,
|
|
(b) |
in relation to the Vessel at a Market Value Test Date where the Market Value of the Vessel is to be determined pursuant to Clause 45.1(n), the market value of
the Vessel as determined by a valuation prepared:
|
|
i. |
on a date no earlier than five (5) days prior to that Market Value Test Date;
|
|
ii. |
with or without physical inspection of that Vessel;
|
|
iii. |
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
existing charter or other contract of employment,
|
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any Relevant Person or the Guarantor and its Subsidiaries as a whole;
|
|
(b) |
the ability of any Relevant Person to perform its obligations under any Pertinent Document to which it is a party; or
|
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security Interests granted pursuant to any of the Pertinent Documents or the rights
or remedies of the Owners under any of the Pertinent Documents.
|
|
(a) |
Security Interests created by a Pertinent Document or a Financial Instrument;
|
|
(b) |
other Security Interests arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of the Vessel in respect of
obligations which are not overdue or in respect of which the Charterers are contesting the claim giving rise to such lien in good faith by appropriate steps and for the payment of which adequate reserves have been made in case the
Charterers finally have to pay such claim so long as any such proceedings shall not, and may reasonably be considered unlikely to, lead to the arrest, sale, forfeiture or loss of the Vessel or any interest in the Vessel; and
|
|
(c) |
other Security Interests permitted by the Owners in writing.
|
|
(a) |
the Pre-delivery Instalment Balance (as of the Relevant Date);
|
|
(b) |
all sums which (as of the Relevant Date) are owed by the Charterers as sellers under the MOA;
|
|
(c) |
the amount of outstanding Pre-delivery Charterhire accrued and being unpaid as at the Relevant Date;
|
|
(d) |
three per cent (3%) of the Pre-delivery Instalment Balance (as of the Relevant Date);
|
|
(e) |
Breakfunding Costs;
|
|
(f) |
any costs or losses incurred with respect to unwinding of swaps entered into by the Owners or its financiers in connection with or under this Charter or any
Financial Instrument;
|
|
(g) |
legal costs incurred as a result of the early termination of the Charter;
|
|
(h) |
any other amount payable under the terms of any Pertinent Document; and
|
|
(i) |
any other costs incurred by the Owners as a result of the termination of the Charter and/or the termination and/or cancellation of the MOA including without
limitation any costs as a result of the termination and/or cancellation of any financing by the Owners in connection with the Vessel,
|
|
(a) |
in relation to each of the first twelve Quarter Charterhire instalments payable during the Charter Period and each of the first twelve relevant Payment Dates
during the Charter Period, an amount equal to $1,492,951; and
|
|
(b) |
in relation to each of the remaining Quarter Charterhire instalments and the remaining relevant Payment Dates during the Charter Period, an amount equal to
$1,213,362 ,
|
|
(a) |
its Original Jurisdiction;
|
|
(b) |
any jurisdiction where any property owned by it and charged under a Pertinent Document is situated;
|
|
(c) |
any jurisdiction where it conducts its business; and
|
|
(d) |
any jurisdiction whose laws govern the perfection of any of the Pertinent Documents entered into by it creating a Security Interest.
|
|
(a) |
imposed by law or regulation of a Sanctions Authority, to the extent applicable to this transaction; or
|
|
(b) |
otherwise imposed by any applicable law or regulation by which any Relevant Person is bound or to which it is subject.
|
|
(a) |
the Security Council of the United Nations;
|
|
(b) |
the United States;
|
|
(c) |
the European Union;
|
|
(d) |
the United Kingdom;
|
|
(e) |
the People’s Republic of China (including for the avoidance of doubt, Hong Kong), provided that this paragraph (e) shall not apply to the BP Charterer when
the Vessel is chartered under the BP Charter or the operation or use of the Vessel by the BP Charterer (but not any further sub-lessee of the Vessel) when the Vessel is operated by the BP Charterer (but not any further sub-lessee of the
Vessel), in each case unless otherwise specified in Clause 48A.3; and
|
|
(f) |
the governments and official institutions or agencies of any of paragraphs (a) to (e) above, including the U.S. Department of the Treasury’s Office of Foreign
Assets Control, the United States Department of State, the U.S. Department of Commerce and the Hong Kong Monetary Authority and Her Majesty's Treasury.
|
|
(a) |
a mortgage, charge (whether fixed or floating) or pledge, lien, assignment, hypothecation or any other security interest of any kind or any other agreement or
arrangement having the effect of conferring a security interest;
|
|
(b) |
the security rights of a plaintiff under an action
in rem
;
or
|
|
(c) |
any other right which confers on a creditor or potential creditor a right or privilege to receive the amount actually or contingently due to it ahead of the
general unsecured creditors of the debtor concerned; however this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution.
|
|
(a) |
in relation to the Pre-delivery Charterhire, the first Term shall commence on the date of payment of the First Instalment by the Buyers under clause 19 (
payment of purchase price by buyer
) of the MOA and the last shall end on the Delivery Date or, if any, the date on which the
Pre-delivery Termination Sum is fully paid to the Owners in accordance with this Charter;
|
|
(b) |
in relation to the Quarter Charterhire, the first Term shall commence on the Delivery Date;
|
|
(c) |
each subsequent Term shall commence on the last day of the preceding Term;
|
|
(d) |
any Term which would otherwise end on a non-Business Day shall instead end on the next following Business Day or, if that Business Day is in another calendar
month, on the immediately preceding Business Day;
|
|
(e) |
if any Term commences on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month three
(3) months thereafter, as the case may be, that Term shall, subject to sub-paragraphs (d), (f) and (g)
of this definition, end on the last Business Day
of such later calendar month;
|
|
(f) |
any Term which would otherwise overrun a Payment Date shall instead end on that Payment Date; and
|
|
(g) |
subject to paragraph (a), any Term which would otherwise extend beyond the Pre-delivery Period or, as the case may be, the Charter Period shall instead end on
the last day of the Pre-delivery Period or, as the case may be, the Expiry Date.
|
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of the Vessel;
|
|
(b) |
any expropriation, confiscation, requisition or acquisition of the Vessel, whether for full 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 one (1) year without any right to an extension) unless it is redelivered within twenty-one (21) days to the full control of the Owners or the Charterers; or
|
|
(c) |
any arrest, capture, seizure or detention of the Vessel (including any hijacking or theft but excluding any event specified in paragraph (b) of this
definition) unless it is redelivered within thirty (30) days to the full control of the Owners or the Charterers.
|
|
(a) |
in the case of an actual loss of the Vessel, the date on which it occurred;
|
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Vessel, the earlier of:
|
|
(i) |
the date on which a notice of abandonment is given to the insurers;
|
|
(ii) |
the date when the Vessel was last heard of; and
|
|
(iii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Charterers with the Vessel's insurers in which the insurers agree to treat
the Vessel as a Total Loss; and
|
|
(c) |
in the case of any expropriation, confiscation, requisition or acquisition of the Vessel whether for full 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 one (1) year without any right to an extension, on the date on which the expropriation, confiscation, requisition or, as the case may be, the acquisition of the Vessel is completed
by delivery of the Vessel to the relevant government or official authority or the person or persons claiming to be or to represent the relevant government or official authority unless it is redelivered within twenty-one (21) days to the
full control of the Owners or the Charterers; and
|
|
(d) |
in the case of any arrest, condemnation, capture, seizure or detention of the Vessel (including any hijacking or theft), unless it is redelivered within
thirty (30) days to the full control of the Owners or the Charterers, the date falling on the expiration of such days.
|
64.2 |
Construction
. Unless a contrary indication appears, in
this Charter:
|
|
(a) |
an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalization; and
|
|
(b) |
in relation to anything which will be prohibited or restricted by law if a governmental or official authority intervenes or acts in any way within a specified
period after lodgment, filing, registration or notification, the expiry of that period without intervention or action.
|
|
(a) |
cast, or control the casting of, more than 51 per cent, of the maximum number of votes that might be cast at a general meeting of such company;
|
|
(b) |
appoint or remove all, or the majority, of the directors or other equivalent officers of such company; or
|
|
(c) |
give directions with respect to the operating and financial policies of such company with which the directors or other equivalent officers of such company are
obliged to comply;
|
64.3 |
Meaning of “month”.
A period of one
or more “months” ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (“
the numerically corresponding day
”), but:
|
|
(a) |
on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business
Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or
|
|
(b) |
on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of
the period has no numerically corresponding day;
|
64.4 |
In this Charter:
|
|
(a) |
references to a Pertinent Document or any other document being in the form of a particular appendix or to any document referred to in the recitals include
references to that form with any modifications to that form which the Owners approve;
|
|
(b) |
references to, or to a provision of, a Pertinent Document or any other document are references to it as amended or supplemented, whether before the date of
this Charter or otherwise;
|
|
(c) |
references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Charter or
otherwise; and
|
|
(d) |
words denoting the singular number shall include the plural and vice versa.
|
64.5 |
Construction of Insurance terms
. In this Charter:
|
64.6 |
Headings.
In interpreting a Pertinent Document or any
provision of a Pertinent Document, all clauses, sub-clauses and other headings in that and any other Pertinent Document shall be entirely disregarded.
|
Name:
|
||
Title:
|
||
for and on behalf of
|
||
SOUTH CALIFORNIA INC.
|
||
Dated:
|
1 |
Corporate Authorisations/Confirmation
|
1.1 |
A certificate of an authorized signatory of each Relevant Person (other than the Refund Guarantor, the BP Charterer, the Builder and each Approved Manager)
certifying that each copy document provided under paragraph 1 of Part A of Schedule 1 (
Conditions Precedent to Signing
) of the MOA
remains correct, complete and in full force and effect as on the Delivery Date.
|
1.2 |
A certificate of an authorized signatory of the Charterers certifying that there is no Potential Termination Event or Termination Event has occurred and is
continuing as of the Delivery Date.
|
2 |
Pertinent Documents
|
2.1 |
Duly executed and dated copies of the General Assignment, the Quiet Enjoyment Agreement and each Manager’s Undertaking and of each document to be delivered
under it and evidence of their delivery within the timing prescribed under it.
|
2.2 |
Documentary evidence that the Security Interests intended to be created by each of the Security Documents have been duly perfected under applicable law or
will be perfected under applicable law within the prescribed period contained in such Security Documents.
|
3 |
Vessel certificates
|
3.1 |
A copy of the Vessel’s class certificate evidencing that the Vessel maintains its classification as set out in Article I of the Contract with the Approved
Classification Society free of all recommendations and conditions.
|
3.2 |
Copies of the Vessel’s Safety Management Certificate (together with any other details of the applicable Safety Management System which the Owners require) and
of any other documents required under the ISM Code and the ISPS Code (including without limitation an ISSC and IAPPC).
|
3.3 |
A copy of the valid and current Safety Management Certificate under the ISM Code in respect of the Vessel.
|
3.4 |
A copy of the valid and current International Ship Security Certificate (ISSC) in respect of the Vessel.
|
3.5 |
A copy of the valid and current International Air Pollution Prevention (IAPPC) Certificate in respect of the Vessel issued under Annex VI (Regulations for the
Prevention of Air Pollution from Ships) to MARPOL.
|
3.6 |
A copy of any other certificate mandatorily required by the International Maritime Organisation or the Approved Classification Society.
|
3.7 |
A copy of the tonnage certificate of the Vessel.
|
3.8 |
Safety construction, safety equipment, safety radio and load line certificates in respect of the Vessel.
|
3.9 |
Any other document required to be delivered by the Builder to the Buyers under the terms of the Contract (including the documents to be delivered by the
Builder as set out under Article VII paragraph 3 of the Contract).
|
3.10 |
Documentary evidence that the Vessel has been delivered by the Builder to the Charterers pursuant to the terms of the Contract, where such documents shall
include, in particular:
|
(a) |
the original notarized and if required, legalised copies of the bill of sale and builder’s certificate duly executed by the Builder (and where executed by an
attorney of the Builder, together with such original notarized Builder’s power of attorney); and
|
(b) |
the original protocol of delivery and acceptance duly executed by the Builder and the Charterers.
|
4 |
Delivery and title registration of the Vessel
|
4.1 |
Documentary evidence that the Vessel:
|
(a) |
will simultaneously upon Delivery definitively and permanently registered in the name of the Owners under the flag of the Buyers’ Nominated Flag State; and
|
(b) |
will simultaneously upon Delivery in the absolute and unencumbered ownership of the Owners.
|
4.2 |
The commercial invoice of the Vessel.
|
2 |
Legal opinions
|
2.1 |
A signed legal opinion of Watson Farley & Williams, legal advisers to the Owners on such matters on the laws of England as may be satisfactory to the
Owners.
|
2.2 |
Signed legal opinions by lawyers appointed by the Owners on such matters on the laws of the Marshall Islands and the Netherlands and any other jurisdictions
as may be satisfactory to the Owners.
|
3 |
Others
|
3.1 |
The Owners being satisfied that all conditions precedent or documents or evidence specified in Schedule 1 to the MOA have been satisfied or provided in form
and substance satisfactory to the Owners.
|
1. |
Subject to the provisions of this Schedule 3, the rate applied on the Pre-delivery Instalment Balance for the purpose of computing the relevant Pre-delivery
Interest Charterhire (such rate, the “
Rate
”) in respect of a Term shall be LIBOR for a three (3) months period ending on the last day
of such Term plus the Margin.
|
2. |
The Owners shall notify the Charterers of each such Rate in respect of a Term as soon as reasonably practicable after such Rate is determined by the Owners
but not later than 2 Business Days prior to the relevant Payment Date.
|
3. |
If, in relation to any Term:
|
|
(i) |
no screen rate is available for the LIBOR determination and the Reference Banks (or if at any time there is only one Reference Bank) do not provide quotations
to the Owners in order to fix LIBOR; and
|
|
(ii) |
the Owners determine (which determination shall be conclusive and binding) that by reason of circumstances affecting the London interbank market generally,
adequate and fair means do not or will not exist for ascertaining LIBOR at the beginning of that Term or the same does not reflect the cost of funding of the Owners; or
|
|
(iii) |
the Owners determine (which determination shall be conclusive and binding) that by reason of circumstances affecting the London interbank market generally,
deposits in Dollars in the required amount for the 3-month period commencing on the first day of that Term are not available to it in the London interbank market or from whatever sources it may select to obtain funds for that Term,
|
4. |
Immediately following the notification referred to in paragraph 3 above, the Owners and the Charterers, shall negotiate in good faith with a view to agreeing
upon a substitute basis for funding the Pre-delivery Instalment Balance and determining the applicable Rate for that Term, within thirty (30) days after the Owners serve the notice to the Charterers.
|
5. |
If a substitute basis is not so agreed pursuant to paragraph 4 above, the Charterers shall pay the Owners an amount computed at the rate per annum equal to
the cost certified to the Owners ((expressed as an annual rate) of funding the Pre-delivery Instalment Balance during that relevant Term (as conclusively determined by the Owners and which shall be binding on the Charterers)) on the
Pre-delivery Instalment Balance from time to time for the relevant Term.
|
6. |
Interest shall accrue from day to day, shall be calculated on the basis of the actual number of days elapsed and a 360 day year, including the first day of
the period during which it accrues but excluding the last day.
|
Payment Date
|
Indicative Amount ($)
|
1st
|
$45,558,177.73
|
2nd
|
$44,830,173.73
|
3rd
|
$44,089,946.14
|
4th
|
$43,337,289.71
|
5th
|
$42,571,995.77
|
6th
|
$41,793,852.12
|
7th
|
$41,002,643.01
|
8th
|
$40,198,149.06
|
9th
|
$39,380,147.21
|
10th
|
$38,548,410.65
|
11th
|
$37,702,708.78
|
12th
|
$36,842,807.11
|
13th
|
$36,248,056.22
|
14th
|
$35,643,319.12
|
15th
|
$35,028,428.16
|
16th
|
$34,403,212.84
|
17th
|
$33,767,499.81
|
18th
|
$33,121,112.80
|
19th
|
$32,463,872.60
|
20th
|
$31,795,596.97
|
21st
|
$31,116,100.63
|
22nd
|
$30,425,195.16
|
23rd
|
$29,722,689.01
|
24th
|
$29,008,387.40
|
25th
|
$28,282,092.26
|
26th
|
$27,543,602.23
|
27th
|
$26,792,712.54
|
28th
|
$26,029,215.00
|
OWNERS
|
||
SIGNED
|
)
|
|
by Zhou Ling
|
)
|
|
SEA 103 LEASING CO. LIMITED
|
)
|
/s/ Zhou Ling
|
for and on behalf of
|
)
|
|
)
|
||
in the presence of:
|
)
|
|
Witness’ signature: /s/ Wang Wei
|
)
|
|
Witness’ name: Wang Wei
|
)
|
|
Witness’ address:
22F, China Merchants Bank Building, NO.1088
Lujiazui Ring Road, Shanghai, China
|
)
|
|
CHARTERERS
|
||
SIGNED
|
)
|
|
by Andreas Louka
|
)
|
|
SEA 103 LEASING CO. LIMITED
|
)
|
/s/ Andreas Louka
|
for and on behalf of
|
)
|
|
)
|
||
in the presence of:
|
)
|
|
Witness’ signature: /s/ Alexandros Tsirikos
|
)
|
|
Witness’ name: Alexandros Tsirikos
|
)
|
|
Witness’ address:
12 N. Parizsi St., 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
|
7
|
12
|
JUDGMENTS AND CURRENCY INDEMNITY
|
12
|
13
|
SUPPLEMENTAL
|
12
|
14
|
ASSIGNMENT
|
14
|
15
|
NOTICES
|
14
|
16
|
INVALIDITY OF BAREBOAT CHARTER
|
14
|
17
|
GOVERNING LAW AND ENFORCEMENT
|
15
|
SCHEDULE 1
|
16
|
|
FORM OF COMPLIANCE CERTIFICATE
|
16
|
|
EXECUTION PAGE
|
17
|
(1) |
TOP SHIPS INC.
, a corporation incorporated under the
laws of Marshall Islands whose
registered
office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro,
Marshall Islands, MH96960 (the “
Guarantor
”); and
|
(2) |
SEA 103 LEASING CO., LIMITED
, a company incorporated
under the laws of Hong Kong whose registered office is at 46
th
Floor, Champion Tower, 3 Garden Road, Central (the “
Owner
”
which expression includes its successors and assigns).
|
(A) |
By a bareboat
charter
dated 3 December 2018 (the “
Bareboat Charter
”) and made between (i) the Owner, as owner and (ii)
South California Inc.
, a corporation incorporated under the laws of Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall
Islands, MH96960, as charterer (the “
Charterer
”), the Owner has agreed to bareboat charter the crude oil carrier with Builder hull
no. S874 (the “
Vessel
”) to the Charterer pursuant to the terms and conditions contained therein.
|
(B) |
The Guarantor is a shareholder of the Charterer and holds 100 per cent. of all of the issued shares in the Charterer.
|
(C) |
The execution and delivery to the Owner of this Guarantee is one of the conditions to the chartering of the Vessel under the Bareboat Charter.
|
(D) |
This Guarantee is the Guarantee referred to in the Bareboat Charter.
|
1 |
INTERPRETATION
|
1.1 |
Defined expressions.
Words and expressions defined in
the Bareboat Charter shall have the same meanings when used in this Guarantee unless the context otherwise requires.
|
1.2 |
Construction of certain terms
. In this Guarantee:
|
2 |
GUARANTEE
|
2.1 |
Guarantee and indemnity
. The Guarantor unconditionally
and irrevocably:
|
(a) |
guarantees the due payment of all amounts payable by each other Relevant Person under or in connection to each Leasing Document to which such Relevant Person
is a party;
|
(b) |
undertakes to pay to the Owner on the Owner’s demand any such amount which is not paid by that Relevant Person when due and payable under or in connection to
that Leasing Document;
|
(c) |
guarantees the punctual performance by that Relevant Person of all that Relevant Person’s obligations under or in connection with that Leasing Document; and
|
(d) |
fully indemnifies the Owner on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by the
Owner 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 Owner would otherwise have been entitled to recover.
|
2.2 |
No limit on number of demands.
The Owner may serve
more than one demand under Clause 2.1.
|
2.3 |
Guarantee of whole amount.
This Guarantee shall be
construed and take effect as a guarantee of all amounts due to the Owner under the Leasing Documents to which each other Relevant Person is a party.
|
3 |
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
|
3.1 |
Principal and independent debtor.
The Guarantor shall
be liable under this Guarantee as a principal and independent debtor and accordingly it shall not have, as regards this Guarantee, any of the rights or defences of a surety.
|
3.2 |
Waiver of rights and defences.
Without limiting the
generality of Clause 3.1, the Guarantor shall neither be discharged by, nor have any claim against the Owner in respect of:
|
(a) |
any amendment or supplement being made to the Bareboat Charter or any other Leasing Document;
|
(b) |
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, the Bareboat Charter or any other
Leasing Document;
|
(c) |
any release or loss (even though negligent) of any right or Security Interest created by any Leasing Document;
|
(d) |
any failure (even though negligent) promptly or properly to exercise or enforce any such right or Security Interest, including a failure to realise for its
full market value an asset covered by such a Security Interest; or
|
(e) |
the Bareboat Charter or any other Leasing Document 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
. The
Guarantor shall pay to the Owner on its demand the amount of all expenses (including, without limitation, legal fees) incurred by the Owner in connection with the enforcement of, or the preservation of any rights under this Guarantee or
any other Leasing Document, including any advice, claim or proceedings relating to such matters.
|
4.2 |
Fees and expenses payable under Leasing Documents
.
Clause 4.1 is without prejudice to the Guarantor’s liabilities in respect of any other Relevant Person’s obligations under any Leasing Document to which it is a party.
|
5 |
ADJUSTMENT OF TRANSACTIONS
|
5.1 |
Reinstatement of obligation to pay
. The Guarantor shall
pay to the Owner on its demand any amount which the Owner is required, or agrees, to pay pursuant to any claim by, or settlement with, a trustee in bankruptcy of any other Relevant Person on the ground that any Leasing Document to which
that Relevant Person is a party, or a payment by that Relevant Person, was invalid or unenforceable or on any similar ground.
|
6 |
PAYMENTS
|
6.1 |
Method of payments
. Any amount due under this Guarantee
shall be paid:
|
(a) |
in immediately available funds;
|
(b) |
to such account as the Owner 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 or withholding for or on account of any tax payable under any law of relevant jurisdictions except a tax deduction which
the Guarantor is required by law to make.
|
6.2 |
Grossing-up for taxes
. If the Guarantor is required by
law to make a tax deduction, the amount due to the Owner shall be increased by the amount necessary to ensure that the Owner receives and retains a net amount which, after the tax deduction, is equal to the full amount that it would
otherwise have received.
|
6.3 |
Indemnity and evidence of payment of taxes
. The
Guarantor shall fully indemnity the Owner on the Owner’s demand in respect of all claims, expenses, liabilities and losses incurred by the Owner by reason of any failure of the Guarantor to make any tax deduction or by reason of any
increased payment not being made on the due date for such payment in accordance with Clause 6.2. Within 30 days after making tax deduction, that Guarantor shall deliver to the Owner any receipts, certificates or other documentary
evidence satisfactory to the Owner that the tax had been paid to the appropriate taxation authority.
|
7 |
INTEREST
|
7.1 |
Accrual of interest
. Any amount due under this
Guarantee shall carry interest after the date on which the Owner demands payment of it until it is actually paid, unless interest on that same amount also accrues under the Bareboat Charter.
|
7.2 |
Calculation of interest.
Interest under this Guarantee
shall be calculated and accrue (as well after as before judgment) at the rate described in Clause 36.12 of the Bareboat Charter and otherwise in accordance with the terms thereof.
|
8 |
SUBORDINATION
|
8.1 |
Subordination of rights of Guarantor.
All rights which
the Guarantor at any time has (whether in respect of this Guarantee or any other transaction) against each other Relevant Person or its assets shall be fully subordinated to the rights of the Owner under the Leasing Documents (or any of
them), and in particular, the Guarantor shall not:
|
(a) |
claim, or in a bankruptcy of that Relevant Person prove for, any amount payable to the Guarantor by that Relevant Person, whether in respect of this Guarantee
or any other transaction;
|
(b) |
take or enforce any Security Interest for any such amount;
|
(c) |
claim to set-off any such amount against any amount payable by the Guarantor to that Relevant Person; or
|
(d) |
claim any subrogation or other right in respect of any Leasing Document or any sum received or recovered by the Owner under such Leasing Document.
|
9 |
ENFORCEMEN
T
|
9.1 |
No requirement to commence proceedings against other Relevant
Person.
The Owner will not need to commence any proceedings under, or enforce any Security Interest created by, the Bareboat Charter or any other Leasing Document before claiming or commencing proceedings under this Guarantee.
|
9.2 |
Conclusive evidence of certain matters
. However, as
against the Guarantor:
|
(a) |
any final and unappealable judgment or order of a court in England or any Relevant Jurisdiction or award of an arbitration tribunal in London in connection
with the Bareboat Charter or any other Leasing Document; and
|
(b) |
any statement or admission of any other Relevant Person in connection with the Bareboat Charter or any other Leasing Document,
|
10 |
REPRESENTATIONS AND WARRANTIES
|
10.1 |
General.
The Guarantor represents and warrants to the
Owner and the Other Owners as of the date of this Guarantee, and on each day henceforth until the last day of the Security Period as follows.
|
10.2 |
Status
.
|
(a) |
The Guarantor is duly incorporated and validly existing and in good standing under the laws of Marshall Islands.
|
(b) |
The Guarantor is not a FATCA FFI or a US Tax Obligor.
|
10.3 |
Corporate power.
The Guarantor has the corporate
capacity, and has taken all corporate action and obtained all consents necessary for it:
|
(a) |
to execute this Guarantee or any other Leasing Document to which it is a party; and
|
(b) |
to make all the payments contemplated by, and to comply with, this Guarantee or any other Leasing Document to which it is a party.
|
10.4 |
Consents in force.
All the capacities, actions and
consents referred to in Clause 10.3 remain in full force and nothing has occurred which makes any of them liable to revocation.
|
10.5 |
No conflicts.
The execution by the Guarantor of the
Leasing Documents to which it is a party and its compliance with this Guarantee will not involve or lead to a contravention of:
|
(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.
|
10.6 |
Legal, valid and binding obligations.
This Guarantee
and the Leasing Document to which it is a party do now or will upon execution and delivery constitute the Guarantor’s legal, valid and binding obligations enforceable against it in accordance with its terms and any relevant insolvency
laws affecting creditors’ rights generally.
|
10.7 |
Governing law.
The choice of governing law as stated
in this Guarantee and the agreement by the Guarantor to refer disputes to the relevant courts or tribunals as stated herein are valid and binding against the Guarantor.
|
10.8 |
Immunity.
Neither the Guarantor nor any of its assets
are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
10.9 |
Pari passu
ranking.
The obligations of the Guarantor under this Guarantee, are the direct, general and unconditional obligations of the Guarantor and rank at least
pari passu
with all other present and future unsecured and unsubordinated creditors of the Guarantor save for any obligation which is
mandatorily preferred by law and not by virtue of any contract.
|
10.10 |
Legal or administrative action.
No legal or
administrative action involving the Guarantor has been commenced or taken which would have required notification to the Owner under Clause 11.8.
|
10.11 |
No insolvency.
The Guarantor is not 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 the
Guarantor or all or material part of their assets.
|
10.12 |
Tax obligor and place of business
. The Guarantor is not
a US Tax Obligor, and has not established a place of business in the United Kingdom or the United States of America.
|
10.13 |
No withholding taxes.
All payments which the Guarantor
is liable to make under the Leasing Documents to which it is a party may be made without deduction or withholding for or on account of any tax payable under any law of relevant jurisdictions.
|
10.14 |
Taxes paid.
The Guarantor has paid all taxes
applicable to, or imposed on or in relation to it, its business or except for those being contested in good faith with adequate reserves.
|
10.15 |
No default.
No Termination Event or Potential
Termination Event has occurred nor is continuing or might reasonably be expected to result from the entry into and performance of this Guarantee or any other Leasing Document.
|
10.16 |
Information.
Any factual information provided by the
Guarantor (or on its behalf) to the Owner was true and accurate in all material respects as at the date it was provided or as the date at which such information was stated; all accounts (audited and unaudited) delivered under Clause
11.3 satisfied the requirements of Clause 11.4; and there has been no Material Adverse Effect on the Guarantor from its position disclosed in the latest of those accounts.
|
10.17 |
No litigation.
No legal or administrative action
involving the Guarantor has been commenced or taken or, to the Guarantor’s knowledge, is likely to be commenced or taken which, in either case, would be likely to have a Material Adverse Effect on the Guarantor.
|
10.18 |
Sanctions.
|
(a) |
No Relevant Person, nor any of their respective directors, officers, or employees, is a Restricted Person.
|
(b) |
Each Relevant Person, and their respective directors, officers, and employees is in compliance with all Sanctions laws, and none of them have been or are
currently being investigated on compliance with Sanctions, they have not received notice or are aware of any claim, action, suit or proceeding against any of them with respect to Sanctions and they have not taken any action to evade the
application of Sanctions.
|
(c) |
No Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) is in breach of any Anti-Money Laundering Laws, Anti-Terrorism
Financing Laws and/or Business Ethics Laws and, to the extent required by applicable law, has instituted and maintained systems, controls, policies and procedures designed to:
|
|
(i) |
prevent and detect incidences of bribery and corruption, money laundering and terrorism financing; and
|
|
(ii) |
promote and achieve compliance with Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws including, but not limited to, ensuring
thorough and accurate books and records, and utilization of best efforts to ensure that Affiliates acting on behalf of a Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) shall act in compliance with
Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws.
|
10.19 |
Environmental Laws.
All Environmental Laws relating to
the ownership, operation and management of the Vessel and the business of each Relevant Person (as now conducted and as reasonably anticipated to be conducted in the future) have been complied with.
|
10.20 |
Environmental Claim.
No Environmental Claim has been
made or threatened against any Relevant Person or otherwise in connection with the Vessel.
|
10.21 |
Environmental Incident.
No Environmental Incident has
occurred and no person has claimed that an Environmental Incident has occurred.
|
10.22 |
Ownership of the Charterer.
The Charterer is legally
and beneficially and indirectly wholly owned and controlled by the Guarantor.
|
10.23 |
Ownership of the Guarantor.
The Guarantor is listed on
the NASDAQ Composite and its shares are trading in accordance with all applicable laws and regulations. There is no change in the controlling shareholder of the Guarantor from the date of this Guarantee.
|
11 |
UNDERTAKINGS
|
11.1 |
General
. The Guarantor undertakes with the Owner to
comply with the following provisions of this Clause 11 at all times during the Security Period, except as the Owner may otherwise permit.
|
11.2 |
Information provided to be accurate
. All financial and
other information which is provided by or on behalf of the Guarantor under or in connection with the Leasing Documents will be true and not misleading and will not omit any material fact or consideration.
|
11.3 |
Provision of financial statements
. The Guarantor will
send to the Owner:
|
(a) |
as soon as possible, but in no event later than one hundred and twenty (120) days after the end of each financial year of the Charterers, the audited annual
financial statement accounts of the Charterers for that financial year as referred to in the Guarantor’s audited consolidated annual financial statement accounts of the Guarantor for that financial year to be delivered under Clause
11.3(c);
|
(b) |
as soon as possible, but in no event later than ninety (90) days after the end of each half-year, the unaudited semi-annual accounts of the Charterers for
that half-year;
|
(c) |
as soon as possible, but in no event later than one hundred and twenty (120) days after the end of each financial year of the Guarantor, the audited
consolidated annual financial statement accounts of the Guarantor for that financial year; and
|
(d) |
as soon as possible, but in no event later than ninety (90) days after the end of each half-year, the semi-annual consolidated unaudited accounts of the
Guarantor for that half-year certified as to their correctness by at least one director of the Guarantor.
|
11.4 |
Form of financial statements
. All accounts (audited and
unaudited) delivered under Clause 11.3 will:
|
(a) |
be prepared in accordance with all applicable laws and generally accepted accounting principles in the United Stated consistently applied;
|
(b) |
give a true and fair view of (in respect of the audited accounts) or fairly representing (in the case of the management accounts) the state of affairs of the
Group at the date of those accounts and of their profit for the period to which those accounts relate;
|
(c) |
fully disclose or provide for all significant liabilities of the Group; and
|
(d) |
If not in the English language, be accompanied by an English translation duly certified as to its correctness.
|
11.5 |
Shareholder and creditor notices
. The Guarantor will
send the Owner, upon its request, copies of all communications which are despatched to the Guarantor’s shareholders or creditors or any class of them.
|
11.6 |
Consents
. The Guarantor will obtain and promptly renew
and will procure that each other Relevant Person obtains and promptly renews or procure the obtainment or renewal of and provide copies of, from time to time, any necessary consents, approvals, authorisations, licenses or permits of any
regulatory body or authority for the transactions contemplated under each Leasing Document to which it is a party.
|
11.7 |
Valid obligations
. The Guarantor will at its own cost,
and will procure that each other Relevant Person will:
|
(a) |
do all that such Relevant Person reasonably can to ensure that any Leasing Document to which such Relevant Person is a party validly creates the obligations
and the Security Interests which such Relevant Person purports to create; and
|
(b) |
without limiting the generality of paragraph (a), promptly register, file, record or enrol any Leasing Document to which such Relevant Person is a party with
any court or authority in all Relevant Jurisdictions, pay any stamp duty, registration or similar tax in all Relevant Jurisdictions in respect of any Leasing Document to which such Relevant Person is a party, give any notice or take any
other step which, is or has become necessary or desirable for any such Leasing Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which such Relevant Person creates.
|
11.8 |
Notification of legal or administrative action.
The
Guarantor will provide or will procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) provides the Owner with details of any legal or administrative action involving such Relevant
Person (other than the BP Charterer, the Builder and the Refund Guarantor) or the Vessel that is likely to have a Material Adverse Effect as soon as such action is instituted or it becomes apparent is likely to be instituted and is
likely to have a Material Adverse Effect.
|
11.9 |
Notification of damage or default. The Guarantor
:
|
(a) |
will, and will procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, notify the Owner immediately
of the occurrence of any damage and/or alteration caused to the Vessel by any reason whatsoever which results, or may be expected to result, in repairs on the Vessel which exceed $1,000,000; and
|
(b) |
will, and will procure that each other Relevant Person will, notify the Owner immediately of the occurrence of any Termination Event,
and will keep the Owner fully up-to-date with all developments and the Guarantor will, if so requested by the Owner, provide any such certificate signed by its authorised signatory, confirming that there exists no Potential Termination Event or Termination Event. |
11.10 |
Additional information.
The Guarantor will, and will
procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, as soon as practicable after receiving the request, provide the Owner with any additional financial or other information
relating:
|
(a) |
to themselves and/or the Vessel (including, but not limited to the condition, location and employment status of the Vessel); or
|
(b) |
to any other matter relevant to, or to any provision of any Leasing Document to which it is a party,
|
11.11 |
Compliance with operational laws.
The Guarantor shall
procure compliance, and will procure that each other Relevant Person will comply or procure compliance, with all laws or regulations relating to the Vessel and its construction, ownership, employment, operation, management and
registration, including the ISM Code, the ISPS Code, all Environmental Laws and the laws of the Vessel’s registry.
|
11.12 |
Compliance with other laws
.
|
(a) |
The Guarantor shall comply, and shall procure that each other Relevant Person (other than the Builder and the Refund Guarantor) complies with all laws and
regulations in respect of Sanctions, and in particular, they shall ensure that the Charterers shall effect and maintain a sanctions compliance policy to ensure compliance with all such laws and regulations implemented from time to time.
|
(b) |
The Guarantor:
|
|
(i) |
shall, and will procure that each other Relevant Person will, promptly notify the Owner of any non-compliance by any Relevant Person or their respective
officers, directors, or employees with all laws and regulations relating to Sanctions, (including but not limited to notifying the Owner in writing immediately upon being aware that any Relevant Person or their respective shareholders,
directors, officers or employees is a Restricted Person or has otherwise become a target of Sanctions) as well as provide all information (once available) in relation to its business and operations which may be relevant for the purposes
of ascertaining whether any of the aforesaid parties are in compliance with such laws.
|
|
(ii) |
shall, and will procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, promptly notify the Owner of
any non-compliance by any Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) or their respective officers, directors, or employees with all laws and regulations relating to Anti-Money Laundering Laws,
Anti-Terrorism Financing Laws and/or Business Ethics Laws as well as provide all information (once available) in relation to its business and operations which may be relevant for the purposes of ascertaining whether any of the aforesaid
parties are in compliance with such laws.
|
(c) |
The Guarantor shall procure that the Vessel shall not be employed, operated or managed in any manner which (i) is contrary to any Sanctions and in particular,
the Vessel shall not be used by or to benefit any party which is a target of Sanctions and/or is a Restricted Person or trade to any area or country where trading the Vessel to such area or country would constitute or reasonably be
expected to constitute a breach of any Sanctions or published boycotts imposed by any of the United Nations, the European Union, the United States of America, the United Kingdom or the People’s Republic of China (provided that operation
or use of the Vessel by the BP Charterer pursuant to the BP Charter shall not in any case be deemed to be in breach or contrary to any published boycotts imposed by the People’s Republic of China); (ii) would result or reasonably be
expected to result in any Relevant Person or the Owner becoming a Restricted Person; or (iii) would trigger the operation of any sanctions limitation or exclusion clause in any insurance documentation.
|
(d) |
The Guarantor shall, and shall procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) and their
respective officers, directors and employees, will:
|
|
(i) |
comply with all Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws;
|
|
(ii) |
to the extent required by applicable law, maintain systems, controls, policies and procedures designed to promote and achieve ongoing compliance with
Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws; and
|
|
(iii) |
in respect of the Charterers, not use, or permit or authorize any person to directly or indirectly use, the Financing Amount for any purpose that would breach
any Anti-Money Laundering Laws, Anti-Terrorism Financing Laws or Business Ethics Laws; and
|
|
(iv) |
they shall not lend, invest, contribute or otherwise make available the Financing Amount to or for any other person in a manner which would
|
11.13 |
No Security Interests.
The Guarantor will not and will
procure that each other Relevant Person will not create, assume or permit to exist any Security Interest of any kind upon any Leasing Document to which it is a party or any asset subject thereto, other than the Permitted Security
Interests.
|
11.14 |
Financial covenants.
|
(a) |
The Guarantor shall ensure that, at any time during the Security Period, the Guarantor’s Leverage Ratio shall not be more than eighty per cent (80%).
|
(b) |
The Guarantor shall ensure that all time during the Security Period the Liquid Funds shall not be less than the aggregate of:
|
|
(i) |
$750,000 multiplied by the number of Fleet Vessels (other than the Chartered Fleet Vessels, the Vessel and the Other Vessel); and
|
|
(ii) |
$500,000 multiplied by the number of the Chartered Fleet Vessels; and
|
|
(iii) |
$1,000,000 multiplied by two (representing the Vessel and the Other Vessel).
|
|
(a) |
the Total Net Debt; and
|
|
(b) |
the aggregate Market Value of all Fleet Vessels adjusted to include 50% of the value of 50% Owned Vessels.
|
|
(a) |
on a date no earlier than fifteen (15) days previously;
|
|
(b) |
with or without physical inspection of that Vessel;
|
|
(c) |
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
existing charter or other contract of employment,
|
11.15 |
Compliance Certificate
. The Guarantor shall supply to
the Owner, a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 11.14 on each Testing Date; and each Compliance Certificate shall be signed by a Co-Chief Financial Officer of the
Guarantor.
|
11.16 |
Negative
Pledge
. The Guarantor shall:
|
(a) |
procure that the Charterers will not create or permit to arise any Security Interest over any of its assets present or future except for the Permitted
Security Interests.; and
|
(b) |
procure that its liabilities under this Guarantee will rank at least pari passu with all its other present and future unsecured liabilities, except for
liabilities which are mandatorily preferred by law.
|
11.17 |
No disposal of assets, change of business.
The
Guarantor will not, and shall (at all times) procure that no other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) shall:
|
(a) |
transfer, lease or otherwise dispose of all or a substantial part of their respective assets (or any of their assets, in the case of the Charterer), whether
by one transaction or a number of transactions, whether related or not except in the usual course of their respective trading operations; or
|
(b) |
make any substantial change (or any change, in the case of the Charterer) to the nature of their respective business or corporate structure from that existing
as at the date of this Guarantee.
|
11.18 |
No merger etc.
The Guarantor shall not enter into any
form of merger, sub-division, amalgamation or other reorganisation.
|
11.19 |
FATCA.
The Guarantor shall not, and shall procure that
no Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will become a FATCA FFI or US Tax Obligor.
|
11.20 |
No payment of dividend.
The Guarantor shall not
declare, make or pay any dividend or other distribution (or interest on any unpaid dividend or other distribution) on or in respect of its share capital (whether in cash or in kind) upon the occurrence of a Termination Event described
in clause 48 of the Bareboat Charter.
|
12 |
JUDGMENTS AND CURRENCY INDEMNITY
|
12.1 |
Judgments relating to Bareboat Charter and other Leasing
Documents.
This Guarantee shall cover any amount payable by any other Relevant Person under or in connection with any judgment or award relating to the Bareboat Charter and any other Leasing Document.
|
12.2 |
Currency indemnity.
If any sum due from the Guarantor
to the Owner under this Guarantee or under any order, judgment or award relating to this Guarantee has to be converted from the currency in which this Guarantee provided for the sum to be paid (the “
Contractual Currency
”) into another currency (the “
Payment
Currency
”) for the purpose of:
|
(a) |
making or lodging any claim or proof against the Guarantor, whether in its liquidation, any arrangement involving it or otherwise; or
|
(b) |
obtaining an order, judgment or award from any court or other tribunal; or
|
(c) |
enforcing any such order, judgment or award;
|
13 |
SUPPLEMENTAL
|
13.1 |
Continuing guarantee.
This Guarantee shall remain in
force as a continuing security interest at all times during the Security Period.
|
13.2 |
Rights cumulative, non-exclusive.
The Owner’s rights
under and in connection with this Guarantee are cumulative, may be exercised as often as appears expedient and shall not be taken to exclude or limit any right or remedy conferred by law.
|
13.3 |
No impairment of rights under Guarantee.
If the Owner
omits to exercise, delays in exercising or invalidly exercises any of its rights under this Guarantee, that shall not impair that or any other right of the Owner under this Guarantee.
|
13.4 |
Severability of provisions.
If any provision of this
Guarantee is or subsequently becomes void, illegal, unenforceable or otherwise invalid, that shall not affect the validity, legality or enforceability of its other provisions.
|
13.5 |
Guarantee not affected by other Security Interests.
This
Guarantee shall not impair, nor be impaired by, any other guarantee or any right of set-off or netting or to combine accounts which the Owner may now or later hold in connection with the Bareboat Charter or any other Leasing Document.
|
13.6 |
Guarantor bound by Bareboat Charter and other Leasing
Documents.
The Guarantor agrees with the Owner to be bound by all provisions of the Bareboat Charter and any other Leasing Document in the same way as if those provisions had been set out (with any necessary modifications) in
this Guarantee.
|
13.7 |
Applicability of provisions of Guarantee to other rights.
Clauses
3 and 16 shall also apply to any right of set-off or netting or to combine accounts which the Guarantor creates by an agreement entered into at the time of this Guarantee or at any later time (notwithstanding that the agreement does not
include provisions similar to Clauses 3 and 16), being an agreement referring to this Guarantee.
|
13.8 |
Third party rights.
A person who is not a party to
this Guarantee has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Guarantee.
|
13.9 |
Counterpart
. This Guarantee 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 Guarantee.
|
13.10 |
FATCA Information.
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by the other Party:
|
|
(i) |
confirm to the other Party whether it is:
|
|
(A) |
a FATCA Exempt Party; or
|
|
(B) |
not a FATCA Exempt Party; and
|
|
(ii) |
supply to the other Party such forms, documentation and other information relating to its status under FATCA (including its applicable “passthru payment
percentage” or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as the other Party reasonably requests for the purposes of the other Party's compliance with
FATCA.
|
(b) |
If a Party confirms to the other Party pursuant to paragraph (a)(i) 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 the other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige either 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 its status or to supply forms, documentation or other information
requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:
|
|
(i) |
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of this Guarantee and
the Leasing Documents as if it is not a FATCA Exempt Party; and
|
|
(ii) |
if that Party failed to confirm its applicable "passthru payment percentage" then such Party shall be treated for the purposes of the Finance Documents (and
payments made thereunder) as if its applicable "passthru payment percentage" is one hundred per cent. (100%),
|
14 |
ASSIGNMENT
|
14.1 |
Assignment by Owner.
|
14.2 |
The Guarantor may not assign any of its rights or transfer any of its rights or obligations under this Guarantee.
|
15 |
NOTICES
|
15.1 |
Notices to Guarantor.
Any notice or demand to the
Guarantor under or in connection with this Guarantee shall be given by letter or fax or mail at:
|
15.2 |
Validity of demands.
A demand under this Guarantee
shall be valid notwithstanding that it is served:
|
(a) |
on the date on which the amount to which it relates is payable by the relevant Relevant Person under the Leasing Document to which it is a party;
|
(b) |
at the same time as the service of a notice under clause 43 of the Bareboat Charter;
|
15.3 |
Notices to Owner.
Any notice to the Owner under or in
connection with this Guarantee shall be sent to the same address and in the same manner as notices to the Owner under the Bareboat Charter.
|
16 |
INVALIDITY OF BAREBOAT CHARTER
|
16.1 |
Invalidity of Bareboat Charter or other Leasing Documents
.
In the event of:
|
(c) |
the Bareboat Charter or any other Leasing Document 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
|
(d) |
without limiting the scope of paragraph (a), a bankruptcy of the Relevant Person party thereto, the introduction of any law or any other matter resulting in
that Relevant Person
|
17 |
GOVERNING LAW AND ENFORCEMENT
|
17.1 |
Governing law
.
|
17.2 |
Arbitration
.
|
(a) |
Any dispute arising out of or in connection with this Guarantee (including a dispute regarding the existence, validity or termination of this Guarantee or any
non-contractual obligation arising out of or in connection with this Guarantee) (a "
Dispute
") shall be referred to and finally
resolved by 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 17. 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.
|
(b) |
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 arbitrators within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless any of the other Party
appoints its own arbitrator and gives notice that it has done so within the 14 days specified. If the other Party does not appoint its own arbitrator and give notice that it has done so within the 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 all Parties as if he had been appointed by agreement. Nothing herein shall prevent the Parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
|
(c) |
Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated above.
|
(d) |
The language of the arbitration shall be English.
|
1. |
We refer to the Guarantee. This is a Compliance Certificate. Terms defined in the Guarantee have the same meaning when used in this Compliance Certificate
unless given a difference meaning in this Compliance Certificate.
|
2. |
We confirm that, as at the date hereof, no Termination Event has occurred and is continuing which has not been waived or remedied at the date hereof [or if
that is not the case, specifying the same and the steps, if any, being taken to remedy the same].
|
3. |
We confirm that, at any time during the Security Period, Leverage Ratio was not be more than 80 per cent (80%).
|
4. |
We confirm that all time during the Security Period the Liquid Funds was not be less than the aggregate of:
|
|
(i) |
$750,000 multiplied by the number of Fleet Vessels (other than the Chartered Fleet Vessels, the Vessel and the Other Vessel); and
|
|
(ii) |
$500,000 multiplied by the number of the Chartered Fleet Vessels; and
|
|
(iii) |
$1,000,000 multiplied by two (representing the Vessel and the Other Vessel).
|
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:
2019
|
Builder/Yard:
Hyundai
Samho Heavy Industries Co., Ltd.
|
1.
|
Purchase Price
–
See Clause 19
|
|
|
2.
|
Deposit – See Clause 19
|
|
|
||
|
|
|
(ii)
|
|
|
|
||
3.
|
Payment – See Clause 19
|
|
|
||
|
|
|
|
|
|
4.
|
Inspection – Intentionally omitted.
|
|
(
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
5.
|
Time and place of delivery and notices
|
|
(a)
The
Vessel shall be delivered
at the Builder’s shipyard in South Korea, safely afloat at a quay.
|
||
|
||
|
||
(b)
The Sellers
|
||
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 e
ither
cancelling this Agreement in accordance with
Clause 14
(Sellers’ Default) within three (3) B
usiness
|
||
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
a Total Loss
|
||
6.
|
Divers Inspection / Drydocking – Intentionally omitted.
|
|
|
||
|
|
|
|
|
|
|
|
||
|
|
|
|
||
|
||
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
||
7.
|
Spares, bunkers and other items
|
|
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on shore. All
spare parts and spare equipment including spare tail-end shaft(s) and/or
|
spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of
|
||
|
||
Items on board at the time of
delivery
|
||
The Buyers shall take over
remaining bunkers and unused lubricating and hydraulic oils
and
greases in storage tanks and unopened drums
without extra cost
|
||
|
||
|
||
|
||
|
||
|
||
|
||
8.
|
Documentation – See also Clause 20
|
|
The place
of closing:
At the Builder’s Yard
|
||
(a)
In exchange for payment of the Purchase Price the Sellers shall provide the Buyers with the
following delivery documents:
|
||
(i)
|
Legal Bill(s) of Sale in a form recordable in the Buyers’ Nominated Flag State, transferring title of the Vessel
and stating that the Vessel is free from all mortgages, encumbrances and
|
|
(ii)
|
Evidence that all necessary corporate, shareholder and other action has been taken by the Sellers to authorise
the execution, delivery and performance of this Agreement;
|
|
(iii)
|
Power of Attorney of the Sellers appointing one or more representatives to act on behalf of the Sellers in the
performance of this Agreement, duly notarially attested and legalised or apostilled (as appropriate);
|
|
(iv)
|
Certificate or Transcript of Registry issued by the competent authorities of the flag state on the date of
delivery evidencing the Sellers’ ownership of the Vessel and that the Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by such authority to the closing meeting with the original to be sent to the Buyers
as soon as possible after delivery of the Vessel;
|
|
(v)
|
Declaration of Class or (depending on the Classification Society) a Class Maintenance Certificate issued within
three (3) Banking Days prior to delivery confirming that the Vessel is in Class free of condition/recommendation;
|
|
|
|
|
|
||
|
|
|
(vi
|
Commercial Invoice for the Vessel;
|
|
(vii
|
Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases
(which will be taken over by the Buyers at no extra cost in accordance with Clause 7)
;
|
|
|
|
|
(
|
|
|
(ix
|
The Sellers’ letter of confirmation that to the best of their knowledge, the Vessel is not black listed by any
nation or international organisation
|
|
The items set out in this Clause 8(a) are inserted for the sole benefit of the Buyers and may
be waived in whole or in part with or without conditions by the Buyers.
|
||
(b)
At
the time delivery the Buyers shall provide the Sellers with:
|
||
(i)
|
Evidence that all necessary corporate, shareholder and other action has been taken by the Buyers to authorise the
execution, delivery and performance of this Agreement; and
|
|
(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
.
|
|
(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 for review and comment by the other party not later than
one(1) Business Day (or such later date as the Buyers may agree) prior to the notice to be sent to the Buyers from the Sellers five (5) Business Days before delivery in
accordance with Vessel’s intended date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) (the “Scheduled Delivery date”)
|
||
(e)
Concurrent
with
|
||
(f)
Other
technical documentation which may be in the Sellers’ possession shall promptly after delivery be forwarded to the Buyers at
Sellers’
|
||
(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
(the “PDA”)
.
|
||
9.
|
Encumbrances
|
|
The Sellers warrant that the Vessel, at the time of
|
||
to Port State or other administrative detentions. The Sellers hereby undertake to indemnify the Buyers against
all consequences of claims made against the Vessel which have been incurred prior to the time of
|
|
10.
|
Taxes, fees and expenses
|
Any taxes, fees and expenses in connection with the
purchase
of the Vessel
and registration in the Buyers’ Nominated Flag State
|
|
11.
|
Condition on delivery See also Clause 34 of the Bareboat Charter
|
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 was at the time of
Delivery
|
|
|
|
|
|
|
|
12.
|
Name/markings – Intentionally omitted
|
|
|
13.
|
Buyers’ default – Intentionally omitted
|
|
|
|
|
14.
|
Sellers’ default – See also Clause 19(c) and Clauses 33.1, 48 and 48A of the Bareboat Charter
|
Should 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.
|
|
Without prejudice
to Clause 19(c) and Clauses 33.1, 48 and 48A of the Bareboat Charter and any other rights the Buyer may have under the Leasing Documents, at law or otherwise,
|
|
15.
|
Buyers’ representatives – Intentionally omitted
|
|
16.
|
Law and Arbitration – See Clause 27
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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:
c/o CMB Financial Leasing Co., Ltd.
Address: 21/F, China Merchants Bank Building, No. 1088, Lujiazui Ring Road, Shanghai, China
Email: x
_
man@cmbchina.com
Tel: +8621 61061737
Fax: +8621 61059911*1737
|
|
For the Sellers:
c/o Central Mare, Inc.
Address: 1, Vas. Sofias Street & Meg. Alexandrou,
151 24 Maroussi, Greece
Email: atsirikos@topships.org
Tel: +302108128180
Fax: +302108056441
|
|
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.
|
|
/s/ Andreas Louka
|
/s/ Zhou Ling
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
|
Name: Andreas Louka
|
Name: Zhou Ling
|
|
Title: Attorney-in-fact
|
Title: Director
|
|
|
(i) |
the Buyers shall pay an amount equivalent to the Advance Charterhire to the Sellers on the Delivery Date provided that such amount shall be set off
against the amount of the Advance Charterhire payable to the Buyers as owners under the terms of the Bareboat Charter on the Delivery Date, with the result that the Buyers shall be deemed to have paid such sum to the Sellers
forthwith and the Sellers be deemed to have paid the amount of Advance Charterhire to the Buyers pursuant to the terms of the Bareboat Charter; and
|
|
(ii) |
The Buyers shall pay the balance of the Purchase Price to the Sellers (subject to the terms of sub-paragraph (b) below) by way of the following nine(9)
chronological instalments:
|
Instalment
|
Amount
|
Payment Date
|
||
1st
|
$2,742,135 (being an amount equal to the first instalment of the Contract Price or, if applicable, the Final
Contract Price payable to the Builder under Article X paragraph 2(a) of the Contract, and known as the “
First Instalment
”).
|
Within five (5) Business Days from the date the Buyers confirming receipt of the Refund Guarantee (in form
and substance satisfactory to the Buyers)
|
||
2nd
|
$2,742,135(being an amount equal to the second instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(b) of the Contract, and known as the “
Second Instalment
”)
|
on the day falling (3) months from the Sellers’ payment of the First Pre-delivery Upfront Charterhire
Instalment as charterers under the Bareboat Charter
|
||
3rd
|
$2,742,135(being an amount equal to the third instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(c) of the Contract, and known as the “
Third Instalment
”)
|
on the earlier of (i) the day falling (5) months from the Sellers’ payment of the First Pre-delivery Upfront
Charterhire Instalment as charterers under the Bareboat Charter; and (ii) the Delivery Date
|
||
4th
|
$2,742,135 (being an amount equal to the fourth instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph
|
on the earlier of (i) the day falling eight (8) months from the Sellers’ payment of the First Pre-delivery
|
2(d) of the Contract and known as the “
Fourth Instalment
”)
|
Upfront Charterhire Instalment as charterers under the Bareboat Charter; and (ii) the Delivery Date
|
|||
5th
|
$2,742,135 (being an amount equal to the fifth instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(e) of the Contract and known as the “
Fifth Instalment
”)
|
on the earlier of (i) the day falling eleven (11) months from the Sellers’ payment of the First Pre-delivery
Upfront Charterhire Instalment as charterers under the Bareboat Charter; and (ii) the Delivery Date
|
||
6th
|
$2,742,135 (being an amount equal to the sixth instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(f) of the Contract and known as the “
Sixth Instalment
”)
|
Within two (2) months of the Delivery Date.
|
||
7th
|
$5,484,270 (being an amount equal to the seventh instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(g) of the Contract and known as the “
Seventh Instalment
”)
|
Within one (1) month of the Delivery Date.
|
||
8th
|
$3,000,000 (being an amount equal to the eighth instalment of the Contract Price or, if applicable, Final
Contract Price payable to the Builder under Article X paragraph 2(h) of the Contract and known as the “
Eighth Instalment
”)
|
No later than the day falling (15) days prior to the Delivery Date.
|
||
9th
|
An amount in Dollars equal to the Final Instalment (being an amount equal to the last instalment of the
Contract Price (disregarding any adjustment pursuant to the terms of the Contract) payable to the Builder under Article X paragraph 2(i) of the Contract minus the amount equal to the Advance Charterhire and is also the “
Final Instalment
” as defined herein)
|
On the Delivery Date.
|
|
(i) |
with respect to the First Instalment, the Second Instalment, the Third Instalment, the Fourth Instalment and a portion (in an amount equal to the Fifth
Pre-delivery Upfront Charterhire Instalment payable by the Sellers as charterers under the Bareboat Charter) of the Fifth Instalment or the Sixth Instalment (whichever payment occurs earlier between these two Instalments) shall be
set off, against respectively, against the First Pre-delivery Upfront Charterhire Instalment, the Second Pre-delivery Upfront Charterhire Instalment, the Third Pre-delivery
|
|
(ii) |
subject to sub-paragraph (iii) below, with respect to the Fifth Instalment or the Sixth Instalment (whichever payment occurs earlier and netting the
portion set-off by the Fifth Pre-delivery Upfront Charterhire Instalment as per sub-paragraph (i) above), the Fifth Instalment or the Sixth Instalment (whichever payment occurs later), the Seventh Instalment and the Eighth
Instalment the Buyers may directly pay the amount of such Instalments (or any portion of any such Instalment) to the Builder on the relevant Payment Date in accordance with the requirements set out under Article X paragraph 4(a)(i),
of the Contract. The Sellers acknowledge that any such payment (whether in part or in whole) by the Buyers of such Instalment (or any portion of such Instalment) directly to the Builder shall be deemed to satisfy the Buyers’
obligation to pay the same to the Sellers under this Clause 19 (
Payment of Purchase Price by Buyer
); and
|
|
(iii) |
with respect to the Final Instalment, the Buyers shall remit by telegraphic transfer the amount of the Final Instalment to the Builder’s Bank in
accordance with the manner set out under Article X paragraph 4(a)(ii) of the Contract no later than three (3) Business Days prior to the Scheduled Delivery Date (or as otherwise agreed) (the date on which the Buyers remit the Final
Instalment, the “
Preposition Date
”) and with the release of the Final Instalment to the Builder governed by the terms of a
Conditional Payment Instruction, which shall, inter alia, permit the release of the Final Instalment to the Builder only upon presentation within fifteen 15 banking days (as defined in the Contract) by the Builder of (A) a protocol
of acceptance and delivery duly signed by authorised representatives of the Builder and the Sellers; and (B) a protocol of acceptance and delivery duly signed by authorised representatives of the Sellers and the Buyers and (if
applicable) the Buyers’ financiers.
provided that in respect of each of sub-paragraphs(iii) and(iii)above, the relevant instalment (or where relevant, portion of) of the Purchase Price shall
only be payable by the Buyers if the relevant conditions precedent set out under Clause 20 (
Documentation
) are fulfilled.
|
|
(A) |
in the event that the Vessel is delivered to the Buyers on the Delivery Date, accrue as of the Preposition Date until the Delivery Date (both dates
inclusive); and
|
|
(B) |
in the event that the Vessel is not delivered to the Buyers on the Delivery Date, accrue as of the Preposition Date until the amount of the Final
Instalment prepositioned or paid by the Buyers is returned by the Sellers’ Bank to the Buyers in accordance with the Conditional Payment Instruction (both dates inclusive).
|
(c) |
Subject to clause 6 of the Pre-delivery Assignment and clauses 33, 40, 48 and 48A of the Bareboat Charter, if a Termination Event or events described in
clause 48A.1 or 48A.2 or 48A.3 of the Bareboat Charter occurs prior to Delivery then:
|
|
(i) |
the Buyers shall immediately be released from all obligations under this Agreement;
|
|
(ii) |
upon receipt of the Pre-delivery Purchase Price by the Buyers pursuant to the terms of the Bareboat Charter this Agreement shall immediately terminate and
be cancelled without the need for the Buyers or the Sellers to take any action whatsoever provided that the Buyers shall be entitled to retain all fees paid by the Sellers under the Leasing Documents and such payment shall not be
construed as a penalty but shall represent an agreed estimate of the loss and damage suffered by the Buyers in entering into this Agreement upon the terms and conditions contained herein and shall therefore be paid as compensation
to the Buyers; and
|
|
(iii) |
the Sellers shall be obliged to refund in full to the Buyers, all Instalments paid by the Buyers under this Agreement, as at the date the Termination
Event or the relevant event described in Clause 48A.1 or 48A.2 or 48A.3 of the Bareboat Charter (as the case may be) occurs, provided that:
|
|
(aa) |
such obligation of the Sellers shall be waived by the Buyers only upon full payment of the Pre-delivery Purchase Price by the Sellers (in their capacity
as bareboat charterers) to the Buyers (in their capacity as owners) under the Bareboat Charter in accordance with its terms;
|
|
(bb) |
if the Buyers receive any moneys from the Builder or the Refund Guarantor pursuant to the terms of any Leasing Document, such amount received by the
Buyers shall be set off against the Sellers’ obligations to refund the Instalments to the Buyers under this paragraph (iii) and if such moneys received by the Buyers exceed the Pre-delivery Purchase Price, then any excess of such
moneys received by the Buyers over the Pre-delivery Purchase Price shall be paid over to the Sellers,
|
(d) |
For the avoidance of doubt, any difference between the Purchase Price and the outstanding Contract Price or, if applicable, Final Contract Price shall be
for the account of the Sellers (such difference, the “
Final Outstanding Sellers’ Amount
”).
|
(a) |
the relevant Payment Date falling within the Availability Period;
|
(b) |
the conditions precedent set out in Schedule 1 Part A being fulfilled to the satisfaction of the Buyers on or prior to the date of this Agreement;
|
(c) |
in respect of the Fifth Instalment (netting the portion set-off by the Fifth Pre-delivery Upfront Charterhire Instalment as per clause 19(b)(i) above),
the conditions precedent set out in Schedule 1 Part B being fulfilled to the satisfaction of the Buyers on or prior to the date of the Buyers’ payment of the Fifth Instalment;
|
(d) |
in respect of the Sixth Instalment, the conditions precedent set out in Schedule 1 Part C being fulfilled to the satisfaction of the Buyers on or prior to
the date of the Buyers’ payment of the Sixth Instalment;
|
(e) |
in respect of the Seventh Instalment, the conditions precedent set out in Schedule 1 Part D being fulfilled to the satisfaction of the Buyers on or prior
to the date of the Buyers’ payment of the Seventh Instalment;
|
(f) |
in respect of the Eighth Instalment, the conditions precedent set out in Schedule 1 Part E being fulfilled to the satisfaction of the Buyers on or prior
to the date of the Buyers’ payment of the Eighth Instalment; and
|
(g) |
in respect of the Final Instalment, the conditions precedent set out in Schedule 1 Part F being fulfilled to the satisfaction of the Buyers on or prior to
the date of the Buyers’ remittance of the Final Instalment in accordance with Clause 19(b)(iii) or, where indicated in Schedule 1 Part G, will, in the opinion of the Buyers, satisfy on or prior to the Delivery Date.
|
(a) |
The Sellers shall pay such amounts to the Buyers in respect of all costs, claims, expenses, liabilities, losses and fees (including but not limited to any
legal fees, vessel registration and tonnage fees) suffered or incurred by or imposed on the Buyers arising from this Agreement or in connection with the Delivery, registration and purchase of the Vessel by the Buyers whether prior
to, during or after termination of this Agreement and whether or not the Vessel is in the possession of or the control of the Sellers or otherwise.
|
(b) |
The Sellers shall indemnify and compensate the Buyers against all costs, claims, expenses, liabilities, losses, damages and fees (including but not
limited to any legal fees) arising due to any default, improper behaviour and/or negligence of the Sellers under any Leasing Documents and Shipbuilding Documents.
|
(c) |
Notwithstanding anything to the contrary herein, the indemnities provided by the Sellers shall be provided in favour of the Buyers and shall continue in
full force and effect notwithstanding any breach of the terms of this Agreement or termination of this Agreement pursuant to the terms hereof.
|
(a) |
they
|
|
(i) |
are not a Restricted Person;
|
|
(ii) |
are not owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Restricted Person;
|
|
(iii) |
do not own or control a Restricted Person; or
|
|
(iv) |
do not have a Restricted Person serving as a director, officer or, to the best of their knowledge, employee; and
|
(b) |
no proceeds of the Purchase Price shall be made available, directly or indirectly, to or for the benefit of a Restricted Person nor shall they be
otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
(a) |
prevent and detect incidences of bribery and corruption, money laundering and terrorism financing; and
|
(b) |
promote and achieve compliance with Anti-Money Laundering Laws including, but not limited to, ensuring thorough and accurate books and records, and
utilization of commercially reasonable efforts to ensure that Affiliates acting on behalf of the Sellers shall act in compliance with Anti-Money Laundering Laws.
|
(a) |
Subject to the Pre-delivery Assignment, the Sellers shall keep and duly exercise where appropriate in accordance with the Contract the Sellers’ rights as
buyer under the Contract in relation to:
|
|
(i) |
approval of plans and drawings;
|
|
(ii) |
supervision of the construction of the Vessel; and
|
|
(iii) |
attendance of the tests and sea trial,
|
(b) |
Any changes and modifications made or requested by the Sellers as buyer under the Contract in respect of the Vessel shall be made or requested with the
prior written
|
(a) |
This Agreement and any non-contractual obligations arising under or in connection with it, shall be governed by and construed in accordance with English
law.
|
(b) |
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
”)) shall be referred to and
finally resolved by 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 25. 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.
|
(c) |
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 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 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 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 he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
|
(d) |
Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated
above.
|
(e) |
The language of the arbitration shall be English.
|
1.1 |
A copy of the constitutional documents and statutory registers of each Relevant Party (other than the Refund Guarantor, the BP Charterer, the Builder
and each Approved Manager).
|
1.2 |
A copy of the resolutions of the board of directors (or equivalent) of each Relevant Party (other than the Refund Guarantor, the BP Charterer, the
Builder and each Approved Manager):
|
(a) |
approving the terms of, and the transactions contemplated by, the Leasing Documents to which it is a party and resolving that it execute the Leasing
Documents to which it is a party;
|
(b) |
authorizing a specified person or persons to execute the Leasing Documents to which it is a party on its behalf; and
|
(c) |
authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under,
or in connection with, the Leasing Documents to which it is a party.
|
1.3 |
If applicable, an original of the power of attorney of each Relevant Party (other than the Refund Guarantor, the BP Charterer, the Builder and each
Approved Manager) authorizing a specified person or persons to execute the Leasing Documents to which it is a party.
|
1.4 |
A specimen of the signature of each person authorized by the resolution referred to in paragraph 1.2 above.
|
1.5 |
A certificate of a director, officer or secretary (as appropriate) of each Relevant Party (other than the Refund Guarantor, the BP Charterer, the
Builder and each Approved Manager) certifying that each copy document relating to it specified in this Schedule 1 Part A is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2.1 |
A duly
executed copy of the Contract together with any amendments thereto
.
|
2.2 |
Duly executed copies of each Leasing Document (other than the General Assignment, the Quiet Enjoyment Agreement and the Manager’s Undertakings provided
that each such Leasing Document shall then be in agreed form) and of each document to be delivered under it and evidence of their delivery within the timing prescribed under it.
|
2.3 |
A duly executed copy of the BP Charter and any amendments thereto in form and substance satisfactory to the Buyers.
|
2.4 |
A copy of any other consents, approvals, authorization or other document, opinion or assurance which the Buyers consider to be reasonably desirable in
connection with the entry into and performance of the transactions contemplated by the BP Charter or for the validity and enforceability of the BP Charter.
|
2.5 |
Receipt by the Buyers of the Refund Guarantee together with any amendments thereto, each in form and substance satisfactory to the Buyers and not having
been revoked or purported to be revoked as of the Payment Date of the First Instalment and having a validity period expiring no earlier than the Cancelling Date.
|
2.6 |
Evidence that the Operating Account has been opened
.
|
2.7 |
Such documentary evidence as the Buyers may reasonably require in relation to the due authorization and execution by the Builder of the Contract and/or by
the Refund Guarantor of the Refund Guarantee.
|
2.1 |
A copy certified as true by an officer of the Sellers of the notification from the Builder demanding the payment of the fifth instalment of the Contract
Price pursuant to Article X paragraph 3 of the Contract.
|
3.1 |
Evidence satisfactory to the Buyers that the Sellers have paid and the Builder has received an amount equivalent to the sum of the First Pre-delivery
Upfront Charterhire Instalment, the Second Pre-delivery Upfront Charterhire Instalment, the Third Pre-delivery Upfront Charterhire Instalment, the Fourth Pre-delivery Upfront Charterhire Instalment and the Fifth Pre-delivery Upfront
Charterhire Instalment.
|
3.2 |
Evidence satisfactory to the Buyers that any interest accrued from the delayed payment by the Sellers under the Contract have been settled.
|
5.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
5.2 |
Documentary evidence that the Security Interests intended to be created by each of the Security Documents (other than the General Assignment and the
Managers’ Undertakings) have been duly perfected under applicable law.
|
5.3 |
The Buyers’ receipt of full payment of (i) the First Instalment Arrangement Fee Amount (if the Fifth Instalment is payable earlier than the Sixth
Instalment); and (ii) all accrued Commitment Fee which are outstanding and payable by the Sellers to the Buyers.
|
5.4 |
The Buyers being satisfied with the progress of the construction and conditions of the Vessel upon inspection and/or survey of the Vessel.
|
2.1 |
A copy certified as true by an officer of the Sellers of the notification from the Builder demanding the payment of the sixth instalment of the Contract
Price pursuant to Article X paragraph 3 of the Contract.
|
3.1 |
In
the event where the Sixth Instalment occurs earlier than the Fifth Instalment:
|
(a) |
Evidence satisfactory to the Buyers that the Sellers have paid and the Builder has received an amount equivalent to the sum of the First Pre-delivery
Upfront Charterhire Instalment, the Second Pre-delivery Upfront Charterhire Instalment, the Third Pre-delivery Upfront Charterhire Instalment, the Fourth Pre-delivery Upfront Charterhire Instalment and the Fifth Pre-delivery Upfront
Charterhire Instalment.
|
(b) |
Evidence satisfactory to the Buyers that any interest accrued from the delayed payment by the Sellers under the Contract have been settled.
|
5.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
5.2 |
The Buyers’ receipt of full payment of (i) the First Instalment Arrangement Fee Amount (if the Sixth Instalment is payable earlier than the Fifth
Instalment); and (ii) all accrued Commitment Fee which is outstanding and payable by the Sellers to the Buyers.
|
5.3 |
In the event where the Sixth Instalment occurs earlier than the Fifth Instalment, documentary evidence that the Security Interests intended to be created
by each of the Security Documents (other than the General Assignment and the Managers’ Undertakings) have been duly perfected under applicable law.
|
4.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
4.2 |
The Buyers’ receipt of full payment of all accrued Commitment Fee which are outstanding and payable by the Sellers to the Buyers.
|
4.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
4.2 |
The Buyers’ receipt of full payment of all accrued Commitment Fee which are outstanding and payable by the Sellers to the Buyers.
|
2.1 |
Notices of Delivery issued by the Sellers to the Buyers under Clause 5 of this
Agreement
.
|
2.2 |
A copy certified as true by an officer of the Sellers of the notification from the Builder demanding the payment of the last instalment of the Contract
Price (or, if applicable, the Final Contract Price) pursuant to Article X paragraph 3 of the Contract.
|
2.3 |
Duly executed but undated copies of the General Assignment, the Quiet Enjoyment Agreement and each Manager’s Undertaking and of each document to be
delivered under it within the timing prescribed under it.
|
5.1 |
A signed opinion from an independent insurance consultant acceptable to the Buyers on such matters relating to the Insurances as the Buyers may require
(obtained at the costs of the Sellers).
|
5.2 |
Signed insurance policies or documents from the relevant approved brokers, insurance companies and/or underwriters, war risks and protection and indemnity
risks associations confirming that as of the Delivery Date the insurances are placed in accordance with the provisions of the Bareboat Charter and all requirements of the Bareboat Charter in respect of Insurances have been complied
with.
|
7.1 |
Valuation reports of the Vessel for determining the First Market Value of the Vessel, provided at the costs of the Sellers and addressed to the Buyers and
dated not earlier than fifteen (15) days before the Scheduled Delivery Date.
|
7.2 |
A survey report in form and substance satisfactory to the Buyers (in its sole discretion) (including without limitation the quality and physical
conditions of the Vessel) of the Vessel by the surveyor appointed by the Buyers and at the Sellers’ costs.
|
8.1 |
A copy of the valid and current Document of Compliance in respect of the Approved Manager.
|
8.2 |
A copy of the valid and current Document of Compliance for the Carriage of Dangerous Goods in respect of the Vessel (if required by the Buyers).
|
8.3 |
A copy of the Declaration of Designated Person form under the ISM Code of the Approved Manager in respect of the Vessel.
|
9.1 |
Evidence satisfactory to the Buyers that there is no default which is continuing and not remedied under the Contract and there has been no default and/or
default occurred under the Contract.
|
9.2 |
The Buyers’ receipt of full payment of all accrued Commitment Fee which is outstanding and payable by the Sellers to the Buyers and the full Arrangement
Fee Amount.
|
9.3 |
Documents setting out the Specification (as defined under Article I of the Contract)] of the Vessel.
|
9.4 |
Any additional documents as may reasonably be required by the competent authorities of the Buyers’ Nominated Flag State for the purpose of the Buyers’
registration of the Vessel.
|
9.5 |
Copies of the Original Financial Statements certified true by an officer of the Sellers and the Guarantor respectively.
|
9.6 |
Evidence that all Pre-delivery Upfront Charterhire, fees, costs and expenses outstanding and payable from the Sellers to the Buyers pursuant to Clause 41
(
Fees and Expenses
) of the Bareboat Charter have been paid in full.
|
9.7 |
Such evidence relating to a Relevant Person as the Buyers may require for their (or their financiers) to be able to satisfy each of their “know your
customer” or similar identification procedures in relation to the transactions contemplated by the Pertinent Documents.
|
9.8 |
A copy of any other consents, approvals, authorization or other document, opinion or assurance which the Buyers consider to be reasonably desirable in
connection with the entry into and performance of the transactions contemplated by any of the Leasing Documents and the BP Charter or for the validity and enforceability of such document.
|
9.9 |
The Owners being satisfied that all conditions precedent for delivery of the Vessel to the BP Charterer under the BP Charter has been or will be satisfied
upon the Delivery Date and that the Vessel shall be delivered to the BP Charterer under the BP Charter on the Delivery Date.
|
9.10 |
Such other documents as the Buyers may reasonably require by giving the Sellers not less than three (3) Business Days’ prior written notice.
|
9.11 |
The Buyers’ being satisfied that the conditions precedent set out in Part A of Schedule 2 to the Bareboat Charter, have been, or will capable of being,
satisfied on the Delivery Date.
|
10.1 |
An unsigned legal opinion of Watson Farley & Williams, legal advisers to the Buyers on such matters on the laws of England and Hong Kong as may be
satisfactory to the Buyers.
|
10.2 |
An unsigned legal opinions by lawyers appointed by the Buyers on such matters on the laws of the Netherlands and the Marshal Islands and any other
relevant jurisdictions as may be satisfactory to the Buyers.
|
To:
|
Sea 104 Leasing Co. Limited
|
Date:
|
[
●
]
|
SELLERS
|
SIGNED
|
)
|
/s/ Andreas Louka | ||
By Andreas Louka
|
)
|
|||
As an attorney-in-fact
|
)
|
|||
for and on behalf of
|
)
|
|||
MALIBU WARRIOR INC.
|
)
|
|||
in the presence of:
|
)
|
|
||
)
|
||||
Witness' signature:
|
)
|
/s/ Alexandros Tsirikos
|
||
Witness' name:
|
)
|
Alexandros Tsirikos
|
||
Witness address:
|
)
|
12 N. Perizsi St, Athens, Greece
|
SIGNED
|
)
|
|
||
by ___________________
|
|
/s/ ________________
|
||
as an attorney-in-fact
|
)
|
|||
for and on behalf of
|
)
|
|||
SEA 104 LEASING CO., LIMITED
|
)
|
|||
in the presence of:
|
)
|
|
||
)
|
||||
Witness' signature:
|
)
|
/s/ Wang Wei
|
||
Witness' name:
|
)
|
Wang Wei
|
||
Witness address:
|
)
|
22F, China Mercahnts Bank Building, NO. 1088
Lujiazui Ring Road, Shanghai, China
|
1. |
Definitions
|
2. |
Charter Period
|
3. |
Delivery
|
4. |
Time for Delivery (See Clauses 32 and 34)
|
5. |
Cancelling (See Clause 33)
|
6. |
Trading Restrictions (See also Clauses 45.1(q), 45.1(r), 45.1(s))
|
7. |
Surveys on Delivery and Redelivery
|
8. |
Inspection (See Clause 46)
|
9. |
Inventories, Oil and Stores See also Clause 34.7
|
10. |
Maintenance and Operation
|
|
(ii) |
New Class and Other Safety Requirements
- In the event of any
improvement, structural changes or new equipment becoming necessary for the continued operation of the Vessel by reason of new class requirements or by compulsory legislation
the Charterers shall ensure that the same are complied with and the time and costs of compliance shall be for the Charterers’ account.
|
|
(iii) |
Financial Security
- The Charterers shall maintain financial
security or responsibility in respect of third party liabilities as required by any government, including federal, state or municipal or other division or authority thereof, to enable the Vessel, without penalty or charge, lawfully to
enter, remain at, or leave any port, place, territorial or contiguous waters of any country, state or municipality in performance of this Charter without any delay. This obligation shall apply whether or not such requirements have been
lawfully imposed by such government or division or authority thereof.
|
11. |
Hire (See Clause 36)
|
12. |
Mortgage See Clause 62.3
|
|
|
|
|
|
|
13. |
Insurance and Repairs (See also Clause 38)
|
14. |
Insurance, Repairs and Classification – intentionally omitted
|
15. |
Redelivery See also Clause 40
|
16. |
Non-Lien
|
17. |
Indemnity (See Clauses 33.1, 36.11, 37.3, 38.15, 38.16, 38.18, 41, 52 and 54)
|
18. |
Lien
|
19. |
Salvage
|
20. |
Wreck Removal
|
21. |
General Average
|
22. |
Assignment, Sub-Charter and Sale (See Clauses 45.1(p) and 62)
|
23. |
Contracts of Carriage
|
*) |
(a)
The Charterers are to procure that all
documents issued during the Charter Period evidencing the terms and conditions agreed in respect of carriage of goods shall contain a paramount clause incorporating any legislation relating to carrier's liability for cargo compulsorily
applicable in the trade; if no such legislation exists, the documents shall incorporate the Hague-Visby Rules. The documents shall also contain the New Jason Clause and the Both-to-Blame Collision Clause.
|
|
|
|
|
24. |
|
25. |
Requisition/Acquisition
|
26. |
War
|
|
(i) |
to comply with all orders, directions, recommendations or advice as to departure, arrival, routes, sailing in convoy, ports of call, stoppages, destinations,
discharge of cargo, delivery, or in any other way whatsoever, which are given by the Government of the Nation under whose flag the Vessel sails, or any other Government, body or group whatsoever acting with the power to compel
compliance with their orders or directions;
|
|
(ii) |
to comply with the orders, directions or recommendations of any war risks underwriters who have the authority to give the same under the terms of the war
risks insurance;
|
|
(iii) |
to comply with the terms of any resolution of the Security Council of the United Nations, any directives of the European Community, 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 Owners are subject, and to obey the orders and directions of those who are charged with their
enforcement.
|
27. |
Commission – Intentionally omitted
|
28. |
Termination (See Clauses 40 and 48)
|
|
|
|
|
|
|
|
|
|
29. |
Repossession
|
30. |
Dispute Resolution (See Clause 63)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31. |
Notices (See Clause 43)
|
OPTIONAL
PART |
|
|
|
|
|
|
|
|
|
|
OPTIONAL
PART |
OPTIONAL
PART |
|
|
|
|
|
|
32.1 |
For the avoidance of doubt, notwithstanding the fact that the Charter Period shall commence on the Delivery Date, this Charter shall be:
|
(a) |
in full force and effect; and
|
(b) |
valid, binding and enforceable against the parties hereto,
|
33.1 |
Subject to Clause 48.3, if:
|
(a) |
a Termination Event occurs prior to the delivery of the Vessel by the Charterers as sellers to the Owners as buyers under the MOA;
|
(b) |
it becomes unlawful for the Owners (as buyers) to perform or comply with any or all of their obligations under the MOA or any of the obligations of the Owners
under the MOA are not or cease to be legal, valid, binding and enforceable; and/or
|
(c) |
the MOA expires, is cancelled, terminated, rescinded or suspended or otherwise ceases to remain in full force and effect for any reason,
|
|
(i) |
retain all fees paid by the Charterers pursuant to Clause 41 (and without prejudice to Clause 41 and if such fees have not been paid, the Charterers shall
forthwith pay such fees to the Owners); and
|
|
(ii) |
any payment, reimbursement, indemnities provided for under Clause 41 (Fees and Expenses) and Clause 52 (Indemnities),
|
34.1 |
The obligation of the Owners to charter the Vessel to the Charterers hereunder is subject to and conditional upon:
|
(a) |
the delivery to and acceptance by the Charterers as buyers of the Vessel under the Contract and the delivery to and acceptance by the Owners as buyers of the
Vessel under the MOA;
|
(b) |
no Potential Termination Event or Termination Event having occurred which is continuing from the date of this Charter to the last day of the Charter Period
(inclusive);
|
(c) |
the representations and warranties contained in Clause 44 (
Representations
and Warranties
) being true and correct on the date hereof and each day thereafter until and including the last date of the Charter Period;
|
(d) |
Delivery occurring on or before the Cancelling Date;
|
(e) |
the Owners having received from the Charterers:
|
|
(i) |
on or prior to the Delivery, the documents or evidence set out in Part A of Schedule 2 in form and substance satisfactory to them; and
|
|
(ii) |
After the Delivery, the documents or evidence set out in Part B of Schedule 2 in form and substance satisfactory to them within the time periods set out
thereunder;
|
34.2 |
The conditions precedent specified in Clause 34.1(b) are inserted for the sole benefit of the Owners and may be waived or deferred in whole or in part and
with or without conditions by the Owners.
|
34.3 |
Upon the requirements of Clause 34.1 (
Delivery and Charter of
Vessel
) being fulfilled to the satisfaction of the Owners or waived (with or without conditions) by the Owners in their sole discretion, the Owners shall give notice thereof in writing to the Charterers.
|
34.4 |
On (A) delivery to and acceptance by the Charterers as buyers of the Vessel from the Builder under the Contract; and (B) delivery to and acceptance by the
Owners as buyers of the Vessel from the Charterers as sellers under the MOA and subject to the provisions of this Clause, the Vessel shall be deemed to have been delivered to, and accepted without reservation by, the Charterers under
this Charter and the Charterers shall become and be entitled to the possession and use of the Vessel on and subject to the terms and conditions of this Charter.
|
34.5 |
On Delivery, as evidence of the commencement of the Charter Period, the Charterers shall sign and deliver to the Owners, the Acceptance Certificate. Without
prejudice to this Clause, the Charterers shall be deemed to have accepted the Vessel under this Charter, and the commencement of the Charter Period having started, on Delivery even if, for whatever reason, the Acceptance Certificate is
not signed and/or the Charterers do not take actual possession of the Vessel at that time.
|
34.6 |
Without prejudice to and notwithstanding the provisions of this Clause, the Charterers shall not be entitled for any reason whatsoever to refuse to accept
delivery of the Vessel under this Charter once the Vessel has been delivered to and accepted by the Owners from the Charterers under the MOA, and the Owners shall not be liable for any losses, costs or expenses whatsoever or howsoever
arising including without limitation, any loss of profit or any loss or otherwise:
|
(a) |
resulting directly or indirectly from any defect or alleged defect in the Vessel (including but not limited to any deficiency in seaworthiness,
merchantability, classification, condition, design, quality , operation, performance, capacity or fitness for use or the eligibility of the Vessel for any particular trade or operation) or any failure of the Vessel; or
|
(b) |
arising from any delay in the commencement of the Charter Period or any failure of the Charter Period to commence.
|
34.7 |
The Owners shall not be obliged to deliver the Vessel to the Charterers with any bunkers and unused lubricating oils and greases in storage tanks and unopened
drums of the Vessel.
|
35.1 |
Provided that the Charterers do not breach any terms of this Charter or any other Pertinent Document and subject to the provisions thereof, the Owners hereby
agree not to disturb or interfere with the Charterers’ lawful use, possession and quiet enjoyment of the Vessel during the Charter Period.
|
36.1 |
In consideration of the Owners agreeing to charter the Vessel to the Charterers under this Charter and the Owners buying the Vessel from the Charterers under
the MOA at the request of the Charterers, the Charterers hereby irrevocably and unconditionally agree to pay to the Owners each Charterhire.
|
36.2 |
The Charterers shall pay to the Owners an amount equivalent to the Advance Charterhire on the Delivery Date which amount shall be deemed paid on such date by
it setting off against the corresponding portion of the Purchase Price payable by the Owners as buyers to the Charterers as sellers under the MOA on the Delivery Date pursuant to the terms thereof.
|
36.3 |
The Charterers shall pay to the Owners the Pre-delivery Upfront Charterhire in the following instalments and manners:
|
(a) |
the first instalment (the “
First Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $2,742,135 which shall be paid on the same date the First Instalment is payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms
thereof. Such amount shall be deemed paid by it setting off against the First Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof;
|
(b) |
the second instalment (the “
Second Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $2,742,135 which shall be paid on the same date the Second Instalment is payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms
thereof. Such amount shall be deemed paid by it setting off against the Second Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof;
|
(c) |
the third instalment (the “
Third Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $2,742,135 which shall be payable on the same date the Third Instalment is payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms
thereof. Such amount shall be deemed paid by it setting off against the Third Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof;
|
(d) |
the fourth instalment (the “
Fourth Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $2,742,135 which shall be payable on the same date the Fourth Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms
thereof. Such amount shall be deemed paid by it setting off against the Fourth Instalment payable by the Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof; and
|
(e) |
the fifth instalment (the “
Fifth Pre-delivery Upfront
Charterhire Instalment
”) in the amount equivalent to $600,000 which shall be payable on the earlier of (i) the day on which the Fifth Instalment is paid by the Owners as buyers under the MOA; and (Ii) the day on which the Sixth
Instalment is paid by the Owners as buyers under the MOA. Such amount shall be deemed paid by it setting off against the corresponding portion of the Fifth Instalment or Sixth Instalment, whichever payment occurs earlier, payable by the
Owners as buyers to the Charterers as sellers under the MOA pursuant to the terms thereof.
|
36.4 |
Subject to Clause 40.3(d), each instalment of the Pre-delivery Upfront Charterhire and the Advance Charterhire shall be unsecured and non-refundable under all
circumstances and without interest accrued thereon.
|
36.5 |
During the Pre-delivery Period, the Charterers shall pay a fee in the form of Charterhire (“Pre-delivery Charterhire”) computed at the rate of the
Pre-delivery Rate on the Pre-delivery Instalment Balance from time to time during the Pre-delivery Period and each such Pre-delivery Charterhire shall be received on the last date of every Term during the Pre-delivery Period and the
last instalment of the Pre-delivery Charterhire shall be received on the last day of the Pre-delivery Period, not later, in each case, than 4.00 pm (Shanghai time).
|
36.6 |
Following Delivery, Quarter Charterhire shall be payable quarterly in arrears in twenty-eight (28) instalments, with such instalments of Charterhire being
received on the last day of every Term by not later than 4.00 pm (Shanghai time).
|
36.7 |
The Vessel shall not at any time be deemed off-hire. All Charterhire, the Pre-delivery Upfront Charterhire, the Advance Charterhire and other amounts payable
in this Charter shall be paid in Dollars and shall be absolutely and unconditionally payable under any and all circumstances and shall not be affected by any circumstances of any nature whatsoever including, but not limited to:
|
(a) |
any set off (other than the Advance Charterhire which shall be set off in accordance with Clause 36.2, each Pre-delivery Upfront Charterhire which shall be
set off in accordance with Clause 36.3 and the Deposit Refund, the Final Purchase Option Price and the Early Termination Price which shall be set off in accordance with Clause 36.15), counterclaim, recoupment, defence, claim or other
right which the Charterers may at any time have against the Owners or any other person for any reason whatsoever including, without limitation, any act, omission or breach on the part of the Owners under this Charter or any other
agreement at any time existing between the Owners and the Charterers;
|
(b) |
any change, extension, indulgence or other act or omission in respect of any indebtedness or obligation of the Charterers, or any sale, exchange, release or
surrender of, or other dealing in, any security for any such indebtedness or obligation;
|
(c) |
any unavailability of the Vessel, including any title defect or encumbrance or any dispossession of the Vessel by title paramount or otherwise;
|
(d) |
any defect in the seaworthiness, condition, value, design, merchantability, operation or fitness for use of the Vessel or the ineligibility of the Vessel for
any particular trade, or for registration or documentation under the laws of any relevant jurisdiction;
|
(e) |
the Total Loss or any damage to or forfeiture or court marshall’s or other sale of the Vessel;
|
(f) |
any libel, attachment, levy, detention, sequestration or taking into custody of the Vessel or any restriction or prevention of or interference with or
interruption or cessation in, the use or possession thereof by the Charterers unless for such period where such arrest, detention or seizure is solely attributable to the fault of the Owners;
|
(g) |
any insolvency, bankruptcy, reorganization, arrangement, readjustment, dissolution, liquidation or similar proceedings by or against the Charterers;
|
(h) |
any invalidity, unenforceability, lack of due authorization or other defects, or any failure or delay in performing or complying with any of the terms and
provisions of this Charter or any of the Pertinent Documents by any party to this Charter or any other person;
|
(i) |
any enforcement or attempted enforcement by the Owners of their rights under this Charter or any of the Pertinent Documents executed or to be executed
pursuant to this Charter; or
|
(j) |
any loss of use of the Vessel due to deficiency or default or strike of officers or crew, fire, breakdown, damage, accident, defective cargo or any other
cause which would or might but for this provision have the effect of terminating or in any way affecting any obligation of the Charterers under this Charter.
|
36.8 |
Time of payment of Charterhire, the Pre-delivery Upfront Charterhire and the Advance Charterhire and other payments by the Charterers shall be of the essence
of this Charter and the other Pertinent Documents.
|
36.9 |
All Charterhire and any moneys payable hereunder shall be payable by the Charterers to the Owners to such account as the Owners may notify the Charterers in
writing.
|
36.10 |
Payment of Charterhire, the Pre-delivery Upfront Charterhire, and Advance Charterhire and any other moneys hereunder shall be at the Charterers’ risk until
receipt by the Owners.
|
36.11 |
All stamp duty, value added tax, withholding or other taxes and import and export duties and all other similar types of charges which may be levied or
assessed on or in connection with:
|
(a) |
the operation of this Charter in respect of the hire and all other payments to be made pursuant to this Charter and the remittance thereof to the Owners; and
|
(b) |
the import, export, purchase, delivery and re-delivery of the Vessel,
|
36.12 |
If the Charterers (including in their capacity as Sellers) fail to make any payment due under this Charter for any other Leasing Document on the due date,
they shall pay interest on such late payment at the default rate of two per cent. (2%) per annum from the date on which such payment became due until the date of payment thereof.
|
36.13 |
All default interest and any other payments under this Charter which are of an annual or periodic nature shall accrue from day to day and shall be calculated
on the basis of the actual number of days elapsed and a 360 day year.
|
36.14 |
Any payment which is due to be made on a day which is not a Business Day, shall be made on the preceding Business Day in the same calendar month (if there is
no preceding Business Day in the same calendar month, then payment shall be made on the next Business Day following the day on which payment is due to be made).
|
(a) |
The Deposit shall be refunded to the Charterers together with the applicable Deposit Interest (such amount to be refunded, the “
Deposit Refund
”) upon irrevocable payment in full of all amounts due and payable by the Charterers and any other Relevant Party under the Pertinent Documents,
provided that and subject to Clause 36.15(b), if the Charterers exercises the Purchase Option in accordance with Clause 50 or Early Termination Price is payable by the Charterers pursuant to Clause 40.1(a), Clause 48A or Clause 49, the
Deposit Refund shall be set off against part of (or if the Deposit Refund is larger than the Final Purchase Option Price or the then applicable Early Termination Price, as the case may be, the whole of) the Final Purchase Option Price
or the then applicable Early Termination Price, as the case may be, payable by the Charterers pursuant to Clause 50 or Clause 40.1(a), Clause 48A or Clause 49 (as the case may be) and upon such set-off, the Owners shall be deemed to
have discharged their obligations to refund to the Charterers the Deposit Refund under this Clause 36.15 and the Charterers shall be deemed to have paid part of (or if the Deposit Refund is larger than the Final Purchase Option Price or
the then applicable Early Termination Price, as the case may
|
(b) |
If the Charterers exercises the Final Purchase Option or the Charterers makes payment of the Early Termination Price pursuant to Clause 40.1(a), Clause 48A or
Clause 49 (as the case may be) and the Deposit Refund is set off against the Final Purchase Option Price or the then applicable Early Termination Price, as the case may be, pursuant to Clause 36.15(a):
|
|
(i) |
and if the Deposit Refund so set off is lower than the Final Purchase Option Price or the then applicable Early Termination Price (as the case may be), the
Charterers shall be fully liable for such shortfall and shall pay to the Owners such shortfall without set-off or deduction on, in respect the Final Purchase Option Price, the Expiry Date or, in respect of the Early Termination Price,
the date on which such Early Termination Price is to be made by the Charterers, to satisfy their payment obligations of the Final Purchase Option Price or the Early Termination Price in full; and
|
|
(ii) |
if the Deposit Refund so set off exceeds the Final Purchase Option Price or the then applicable Early Termination Price (as the case may be), the Owners shall
refund such excess to the Charterers upon irrevocable payment in full of all amounts due and payable by the Charterers and any other Relevant Party under the Pertinent Documents and upon such refund the Owners shall be deemed to have
discharged their obligation to refund the Deposit Refund to the Charterers under this Clause 36.15.
|
(c) |
The Deposit paid to the Owners shall be in the possession and ownership of the Owners until the Deposit is refunded in accordance with this Clause 36.15 and
shall only be refundable in accordance with this Clause 36.15.
|
37.1 |
The Charterers shall not, without the prior written consent of the Owners, assign, mortgage or pledge the Vessel or any interest therein, its Earnings,
Insurances and/or any Requisition Compensation and shall not permit the creation of any Security Interest thereon other than the Permitted Security Interests.
|
37.2 |
The Charterers shall promptly notify any party including, without limitation, the BP Charterer or any other subcharterer of the Vessel (as the Owners may
request) in writing that the Vessel is the property of the Owners and the Charterers shall provide the Owners with a copy of such written notification and satisfactory evidence to the opinion of the Owners that such party has received
such written notification.
|
37.3 |
If the Vessel is arrested, seized, impounded, forfeited, detained or taken out of their possession or control (whether or not pursuant to any distress,
execution or other legal process), the Charterers shall procure the immediate release of the Vessel (whether by providing bail or procuring the provision of security or otherwise do such lawful things as the circumstances may require)
and shall immediately notify the Owners of such event and shall indemnify the Owners against all losses, costs or charges incurred by the Owners by reason thereof in re-taking possession or otherwise in re-acquiring the Vessel. Without
prejudice to the generality of the foregoing and Clause 52, the Charterers agree to indemnify the Owners against all consequences or liabilities arising from the master, officers or agents signing bills of lading or other documents.
|
37.4 |
The Charterers shall pay and discharge or cause the BP Charterer or any other subcharterer of the Vessel to pay and discharge all obligations and liabilities
whatsoever which have given or may give rise to liens on or claims enforceable against the Vessel and take all steps to prevent (and procure any subcharterer of the Vessel to prevent) an arrest (threatened or otherwise) of the Vessel.
|
38.1 |
The Charterers shall procure that such insurances are effected:
|
(a) |
in Dollars;
|
(b) |
in the case of fire and usual hull and machinery, marine risks and war risks (including blocking and trapping), on an agreed value basis in an amount of at
least the higher of (i) 120% of the then applicable Early Prepayment Sum; and (ii) the then current Market Value;
|
(c) |
in the case of oil pollution liability risks for the Vessel, for an aggregate amount equal to the highest level of cover from time to time available under
protection and indemnity club entry and in the international marine insurance market and for an amount of not less than $1,000,000,000;
|
(d) |
in relation to protection and indemnity risks in respect of the full tonnage of the Vessel;
|
(e) |
in the case of innocent Owners’ interest insurance, innocent additional perils (oil pollution) insurance, lessor’s additional perils (pollution) insurance,
Mortgagees’ interest insurance and Mortgages’ additional perils (pollution) insurance, for an amount equal to at least one hundred and twenty percent. (120%) of the then applicable Early Prepayment Sum;
|
(f) |
in the case of lessor contingent liability insurance, for an amount no less than $500,000,000 and in the name of the Owners;
|
(g) |
on terms and in form acceptable to the Owners and their financiers (if any); and
|
(h) |
through approved brokers and with first class international insurers and/or underwriters acceptable to the Owners (including having a Standard & Poor’s
rating of BBB+ or above, a Moody’s rating of A or above or an AM Best rating of A- or above) or, in the case of war risks and protection and indemnity risks, in a war risks and protection and indemnity risks associations (being either
Gard or Britannia P&I Club) acceptable to the Owners and their financiers (if any).
|
38.2 |
In addition to the terms set out in Clause 13(a) (
Insurance
and Repairs
), the Charterers shall procure that the obligatory insurances shall:
|
(a) |
subject always to paragraph (b), name the Charterers, the Approved Manager and the Owners (and if applicable the Owners’ financiers if so required by the
Owners) as the only named assureds unless the interest of every other named assured or co-assured is limited:
|
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
|
(1) |
to any provable out-of-pocket expenses that they have incurred and which form part of any recoverable claim on underwriters; and
|
|
(2) |
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
them); and
|
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries they are entitled to make by way of reimbursement following
discharge of any third party liability claims made specifically against them,
|
(b) |
whenever a financier of the Owners requires:
|
|
(i) |
in respect of fire and other usual marine risks and war risks, name (or be amended to name) the same as additional named assured for their rights and
interests, warranted no operational interest and with full waiver of rights of subrogation against such financiers, but without such financiers thereby being liable to pay (but having the right to pay) premiums, calls or other
assessments in respect of such insurance;
|
|
(ii) |
in relation to protection and indemnity risks, name (or be amended to name) the same as additional insured or co-assured for their rights and interests to the
extent permissible under the relevant protection and indemnity club rules; and
|
|
(iii) |
name the Owners’ financiers (if any) and the Owners as respectively the first ranking loss payee and the second ranking loss payee (and in the absence of any
financiers, the Owners as first ranking loss payee) in accordance with the terms of the relevant loss payable clauses approved by the Owners’ financiers and the Owners with such directions for payment in accordance with the terms of
such relevant loss payable clause, as the Owners and their financiers (if any) may specify;
|
(c) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Owners and/or their financiers (as applicable) shall be made
without set-off, counterclaim or deductions or condition whatsoever;
|
(d) |
provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Owners or their
financiers (if any);
|
(e) |
provide that the Owners and/or their financiers (if any) may make proof of loss if the Charterers fail to do so; and
|
(f) |
provide that if any obligatory insurance is cancelled, or if any substantial change is made in the coverage which adversely affects the interest of the Owners
and/or their financiers (if any), or if any obligatory insurance is allowed to lapse for non-payment of premium, such cancellation, change or lapse shall not be effective with respect to the Owners and/or their financiers (if any) for
thirty (30) days after receipt by the Owners and/or their financiers (if any) of prior written notice from the insurers of such cancellation, change or lapse.
|
38.3 |
The Charterers shall:
|
(a) |
at least fifteen (15) days prior to Delivery (or such lesser period agreed by the parties), notify the terms and conditions of all Insurances in writing to
the Owners (copied to their financiers (if any) and the brokers or insurers with whom the Insurances are or will be placed);
|
(b) |
at least fifteen (15) days before the expiry of any obligatory insurance notify the Owners (copied to their financiers (if any)) of the brokers (or other
insurers) and any protection and indemnity or war risks association through or with whom the Charterers propose to renew that obligatory insurance and of the proposed terms of renewal and obtain the Owners' approval to such matters;
|
(c) |
at least seven (7) days before the expiry of any obligatory insurance, procure that such obligatory insurance is renewed or to be renewed on its expiry date
in accordance with the provisions of this Charter;
|
(d) |
procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after
the renewal or the
|
(e) |
as soon as practicable after the expiry of any obligatory insurance, deliver to the Owners a letter of undertaking as required by this Charter in respect of
such Insurances for the Vessel as renewed pursuant to Clause 38.3(c) (
Insurance
) together with copies of the relevant policies or
cover notes or entry certificates duly endorsed with the interest of the Owners and/or their financiers (if any).
|
38.4 |
The Charterers shall ensure that all insurance companies and/or underwriters, and/or (if any) insurance brokers provide the Owners with all (if required by
the Owners, in original) policies, cover notes and certificates of entry relating to the obligatory insurances which they are to effect or renew and a letter or letters of undertaking in a form required by the Owners and/or their
financiers (if any) and including undertakings by the insurance companies and/or underwriters that:
|
(a) |
they will have endorsed on each policy, immediately upon issuance, a loss payable clause and a notice of assignment complying with the provisions of this
Charter and the Financial Instruments;
|
(b) |
they will hold the benefit of such policies and such insurances, to the order of the Owners and/or their financiers (if any) and/or such other party in
accordance with the said loss payable clause;
|
(c) |
they will advise the Owners and their financiers (if any) promptly of any material change to the terms of the obligatory insurances of which they are aware;
|
(d) |
(i) they will indicate in the letters of undertaking that they will immediately notify the Owners and their financiers (if any) when any cancellation, charge
or lapse of the relevant obligatory insurance occur and (ii) following a written application from the Owners and/or their financiers (if any) not later than one (1) month before the expiry of the obligatory insurances they will notify
the Owners and their financiers (if any) not less than fourteen (14) days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from the Charterers and, in the event of
their receiving instructions to renew, they will promptly notify the Owners and their financiers (if any) of the terms of the instructions; and
|
(e) |
if any of the obligatory insurances form part of any fleet cover, the Charterers shall procure that the insurance broker(s), or leading insurer, as the case
may be, undertakes to the Owners and their financiers (if any) that such insurance broker or insurer will not set off against any sum recoverable in respect of a claim relating to the Vessel under such obligatory insurances any premiums
due in respect of any other vessel under any fleet cover of which the Vessel forms a part or any premium due for other insurances, they waive any lien on the policies, or any sums received under them, which they might have in respect of
such premiums, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of the Vessel forthwith upon being so
requested by the Owners and/or their financiers (if any) and where practicable.
|
38.5 |
The Charterers shall ensure that any protection and indemnity and/or war risks associations in which the Vessel is entered provides the Owners and their
financiers (if any) with:
|
(a) |
a copy of the certificate of entry for the Vessel as soon as such certificate of entry is issued;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Owners and their financiers (if any) or in such association’s standard form; 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 Vessel.
|
38.6 |
The Charterers shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are
effected or renewed.
|
38.7 |
The Charterers shall procure that all premiums or other sums payable in respect of the obligatory insurances are punctually paid and produce all relevant
receipts when so required by the Owners.
|
38.8 |
The Charterers shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force
and effect.
|
38.9 |
The Charterers shall neither 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; and, in particular:
|
(a) |
the Charterers shall procure that all necessary action is taken and all requirements are complied with which may from time to time be applicable to the
obligatory insurances, and (without limiting the obligations contained in this Clause 38) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Owners have not given their prior
approval (unless such exclusions or qualifications are made in accordance with the rules of a protection and indemnity association which is a member of the International Group of protection and indemnity associations);
|
(b) |
the Charterers shall not make or permit any changes relating to the classification or classification society of the Vessel or manager or operator of the
Vessel unless such changes have first been approved by the underwriters of the obligatory insurances and are approved by the Owners;
|
(c) |
the Charterers shall procure that all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which
the Vessel 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) are made and the Charterers
shall promptly provide the Owners with copies of such declarations and a copy of the certificate of financial responsibility; and
|
(d) |
the Charterers shall not employ the Vessel, 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.
|
38.10 |
The Charterers shall not make or agree to any alteration to the terms of any obligatory insurance nor waive any right relating to any obligatory insurance
without the prior written consent of the Owners and the Owners’ financiers (if any).
|
38.11 |
The Charterers shall not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all
things necessary and provide all documents, evidence and information to enable the Owners to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
38.12 |
The Charterers shall provide the Owners upon written request (except that upon the occurrence of a Total Loss or a Major Casualty the Charterers shall provide
the following immediately without the Owners’ making any request), copies of:
|
(a) |
all communications between the Charterers and:
|
|
(i) |
the approved brokers;
|
|
(ii) |
the approved protection and indemnity and/or war risks associations; and/or
|
|
(iii) |
the first class international insurers and/or underwriters, which relate directly or indirectly to:
|
|
(A) |
the Charterers’ obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional
premiums or calls; and
|
|
(B) |
any credit arrangements made between the Charterers and any of the persons referred to in paragraphs (i) or (ii) relating wholly or partly to the effecting or
maintenance of the obligatory insurances; and
|
(b) |
any communication with all parties involved in case of a claim under any of the Vessel’s insurances.
|
38.13 |
The Charterers shall promptly provide the Owners (or any persons which they may designate) with:
|
(a) |
any information which the Owners or their financiers (or any such designated person) request for the purpose of:
|
|
(i) |
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
|
|
(ii) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 13(a) (
Insurance and Repairs
) or dealing with or considering any matters relating to any such insurances; and
|
(b) |
copies of any communication between all parties involved in case of a claim under any of the Vessel’s insurances exceeding the Major Casualty amount.
|
38.14 |
If one or more of the obligatory insurances are not effected and maintained with first class international insurers or are effected with an insurance or
captive Subsidiary of the Owners or the Charterers, then the Charterers shall procure, at their own expense, that the relevant insurers maintain in full force and effect facultative reinsurances with reinsurers and through brokers, in
each case, of recognised standing and acceptable in all respects to the Owners. Any reinsurance policy shall include, if and when permitted by law, a cut-through clause in a form acceptable to the Owners and/or their financiers (if
any). The Charterers shall procure that underwriters of the primary insurances assign each reinsurance to the relevant financiers in full, if required.
|
38.15 |
The Charterers shall upon demand fully indemnify the Owners and/or their financiers (if any) in respect of all premiums and other expenses which are incurred
by (i) the Owners in connection with or with a view to effecting, maintaining or renewing an innocent Owners’ interest insurance, innocent additional perils (oil pollution) insurance, lessor’s additional perils (pollution) insurance,
lessor contingent liability insurance that is taken out in respect of the Vessel and/or (ii) the financier(s) of the Owners (if any) in connection with or with a view to effecting, maintaining or renewing a mortgagee’s interest
insurance, innocent additional perils (oil pollution insurance) and a mortgagee’s additional perils (pollution) insurance that is taken out in respect of the Vessel, in each case as referred to in aforementioned (i) or (ii), on such
terms and through such insurers as the Owners and/or their financiers (if any) may from time to time consider appropriate in its sole discretion.
|
38.16 |
The Charterers shall be solely responsible for and indemnify the Owners in respect of all loss or damage to the Vessel (insofar as the Owners shall not be
reimbursed by the proceeds of any insurance in respect thereof) however caused occurring at any time or times before physical possession thereof is retaken by the Owners, reasonable wear and tear to the Vessel only excepted.
|
38.17 |
The Charterers shall:
|
(a) |
if so requested by the Owners, but at the expense of the Charterers, furnish the Owners once every year not later than the annual anniversary of the Delivery
Date (or, after a Termination Event has occurred and is continuing, as many times per year as the Owners may require) with a detailed report signed by an independent firm of marine insurance brokers appointed by the Owners dealing with
the Insurances and stating the opinion of such firm as to the adequacy of the Insurances;
|
(b) |
reimburse the Owners, promptly on the Owners’ demand, any expenses incurred by the Owners in obtaining the reports described in Clause 38.13(a) and/or
38.17(a) (
Insurance
); and
|
(c) |
procure that there is delivered to the insurance brokers described in Clause 38.17(a) (
Insurance
) such information in relation to the Insurances as such brokers may require.
|
38.18 |
The Charterers shall:
|
(a) |
keep the Vessel insured at their expense against such other risks (other than loss of hire which shall be insured against upon an occurrence and during the
continuance of a Potential Termination Event or Termination Event) which the Owners or their financiers consider reasonable for a prudent shipowner or operator to insure against at the relevant time (as notified by the Owners and having
regard to the then existing available insurance cover and standard practice in the operation of vessels of the same type as the Vessel) and which are, at that time, generally insured against by owners or operators of vessels similar to
the Vessel or of the same type as the Vessel; and
|
(b) |
upon demand fully indemnify the Owners in respect of all premiums and other expenses incurred by the Owners in respect of any other insurances (other than
loss of hire insurances which the Owners may take out upon an occurrence and during the continuance of a Potential Termination Event or Termination Event) which the Owners deem necessary (having regard to the existing insurance cover
and standard practice in the operation of vessels of the same type) and takes out in respect of the Vessel.
|
39.1 |
It is expressly agreed and acknowledged that the Owners are not the manufacturer or original supplier of the Vessel which has been purchased by the Owners as
buyers from the Charterers as sellers pursuant to the MOA for the purpose of then chartering the Vessel to the Charterers hereunder and that no condition, term, warranty or representation of any kind is or has been given to the
Charterers by or on behalf of the Owners in respect of the Vessel (or any part thereof).
|
39.2 |
All conditions, terms or warranties express or implied by the law relating to the specifications, quality, description, merchantability or fitness for any
purpose of the Vessel (or any part thereof) or otherwise are hereby expressly excluded.
|
39.3 |
The Charterers agree and acknowledge that the Owners shall not be liable for any claim, loss, damage, expense or other liability of any kind or nature caused
directly or indirectly by the Vessel or by any inadequacy thereof or the use or performance thereof or any repairs thereto or servicing thereof and the Charterers shall not by reason thereof be released from any liability to pay any
Charterhire, the Pre-delivery Upfront Charterhire or the Advance Charterhire or other payment due under this Charter or the other Pertinent Documents.
|
40.1 |
If:
|
(a) |
subject to Clause 36.15, the Early Termination Price becomes payable in accordance with Clause 48.2 or Clause 48.3, the same shall (in each such case) be
payable in consideration of the purchase and transfer of the legal and beneficial title of the Vessel pursuant to Clause 40.4;
|
(b) |
the Pre-delivery Termination Sum becomes payable in accordance with Clause 48.3 the same shall (in each such case) be payable in consideration of the
Pre-delivery Releases pursuant to the terms of the Pre-delivery Assignment,
|
40.2 |
Upon irrevocable receipt of the Early Termination Price or the Pre-delivery Termination Sum (as the case may be) by the Owners pursuant to Clause 40.1 or
Clause 40.7, in full, this Charter shall terminate.
|
|
(i) |
At any time after a Termination Event Notice is served (or if a Termination Event has occurred pursuant to Clauses 48.1(a) or 48.1(g), at any time after its
occurrence) and regardless of if the Charterers’ Remarketing Period having commenced and the Charter having not been terminated because of the application of Clause 48.3(B), the Charterers' right to possess and operate the Vessel shall
immediately cease and (without in any way affecting the Charterers' obligation to pay the relevant Early Termination Price) the Charterers shall, upon the Owners' request (at the Owners' sole discretion), be obliged to immediately (and
at the Charterers' own cost) redeliver the Vessel to the Owners at such ready and nearest safe and practical for redelivery port as the Owners may require; further and for the avoidance of doubt, the Owners shall be entitled (at Owners'
sole discretion) to operate the Vessel as they may require and may create whatsoever interests thereon, including without limitation charterparties or any other form of employment contracts ("
Post-enforcement Interests
");
|
|
(ii) |
subject to paragraph (iii) below, at any time after a Termination Event Notice is served unless the Charterers’ Remarketing Period has commenced and the
Owners’ rights provided under this paragraph (ii) have not been suspended pursuant to Clause 48.3(B), the Owners shall be entitled (at the Owners' sole discretion) to sell the Vessel on an arm’s length basis and on terms they deem fit
(an "
Owners' Sale
"); and
|
|
(iii) |
at any time this Charter is terminated pursuant to Clause 48.3, the Owners shall be entitled (at the Owners’ sole discretion) to sell the Vessel on whatever
terms they deem fit and for the avoidance of doubt such sale shall not constitute an Owners’ Sale.
|
(b) |
If the Charterers fail to make any payment of the Pre-delivery Termination Sum on the due date therefor :
|
|
(i) |
Clauses 36.12 and 36.13 shall apply; and
|
|
(ii) |
shall be entitled to exercise its rights under the Pre-delivery Assignment and the other Leasing Documents (for the avoidance of doubt, Clause 6 of the
Pre-delivery Assignment shall continue to apply).
|
(c) |
Prior to effecting an Owners’ Sale, the Owners shall notify the Charterers in writing and the Charterers may thereafter but prior to the completion of the
Owners’ Sale:
|
|
(i) |
submit to the Owners evidence (to the satisfaction of the Owners) of a purchaser offering by way of a firm offer (subject to customary closing conditions and
Owners’ investigation on know your client issues) (a “
Third Party’s Offer
”) an amount at least equal to the then current amount of
the Early Termination Price following which the Owners will use reasonable endeavors to enter into a memorandum of agreement (in a form acceptable to the Owners and the relevant counterparty buyer) pursuant to such Third Party’s Offer;
or
|
|
(ii) |
elect to purchase the Vessel by paying the Owners the then current amount of the Early Termination Price (which has become due and payable pursuant to Clause
48.2,
|
(d) |
The proceeds of any sale (in any case other than the sale of the Vessel made after this Charter is terminated pursuant to Clause 48.3) of the Vessel pursuant
to an Owners’ Sale, a Third Party’s Offer or Clause 48.3(B)(1) (as the case may be) shall be applied:
|
|
(i) |
first, towards the Owners’ documented costs incurred in relation to such sale;
|
|
(ii) |
second, towards payment of the then applicable Early Termination Price and other sums then due and payable to the Owners under the Leasing Documents; and
|
|
(iii) |
third, any remaining balance to be paid to the Charterers subject to all actual and/or contingent liabilities incurred under any of the Leasing Documents
being fully discharged; provided also in the case of the sale proceeds are not in an amount sufficient to discharge in full the aggregate amounts due to the Owners under (i) and (ii), the Charterers shall continue to be liable for the
shortfall.
|
(a) |
Concurrently with the Owners receiving irrevocable payment of the Early Termination Price in full together with other sums then due and payable to the Owners
pursuant to the terms of this Charter or any other Leasing Documents from the Charterers pursuant to Clause 40.3(c)(ii) or Clause 48.3(B)(2) (as the case may be), the Owners shall (save, for the avoidance of doubt, in the event of Total
Loss or where ownership has already been or agreed to be transferred pursuant to an Owners’ Sale, a Third Party’s Offer, Clause or Clause 48.3(B)(1) (as the case may be)) transfer the legal and beneficial ownership of the Vessel on an
"as is where
|
(b) |
Clause 6.1(b) of the Pre-delivery Assignment shall apply to any receipt by the Owners of the Pre-delivery Termination Sum pursuant to the terms of this
Charter and the Pre-delivery Assignment.
|
40.5 |
The Charterers hereby undertake to indemnify the Owners against any claims incurred in relation to the Vessel as a result of the Charterers' action or
performance prior to transfer of ownership pursuant to Clause 40.4(a). Any taxes, notarial, consular and other costs, charges and expenses connected with closing of the Owners' register shall be for the Charterers' account.
|
(a) |
If the Charterers are required to redeliver the Vessel to the Owners pursuant to Clause 40.3(a) or if they do not exercise the Purchase Option, the Charterers
shall ensure that the Vessel shall, at the time of redelivery to the Owners (at Charterers' cost and expense, including as to docking and repair costs in respect of the below):
|
|
(i) |
be in compliance with its Insurances;
|
|
(ii) |
be in an equivalent classification as she was as at the Delivery Date without any recommendation or condition, and with valid, unextended certificates for not
less than six (6) months and free of average damage affecting the Vessel's classification and in the same or as good structure, state, condition and classification as that in which she was deemed on the Delivery Date, fair wear and tear
not affecting the Vessel's classification excepted ;
|
|
(iii) |
have passed her 5-year and if applicable, 10-year special surveys, and subsequent second intermediate surveys and drydock at the Charterers' time and expense
without any condition or outstanding issue and to the satisfaction of the Classification Society and with all the Vessel's classification, trading, national and international certificates that the Vessel had when she was delivered under
this Charter and the log book and whatsoever necessary relating to the operation of the Vessel, valid and un-extended without conditions or recommendation falling due;
|
|
(iv) |
have her survey cycles up to date and trading and classification certificate valid for at least six (6) months;
|
|
(v) |
be redelivered to the Owners together with all spare parts and spare equipment as were on board at the time of Delivery except for any spare parts already
used and replaced in accordance with the terms of this Charter, and any such spare parts and spare equipment on board at the time of redelivery shall be taken over by the Owners free of charge;
|
|
(vi) |
be free of any cargo and Security Interests (save for the Security Interests granted pursuant to the Financial Instruments);
|
|
(vii) |
be redelivered to the Owners together with all material information generated during the Charter Period in respect of the use, possession, operation,
navigation and the physical condition of the Vessel, whether or not such information is contained in the Charterers' equipment, computer or property;
|
|
(viii) |
subject to any quiet enjoyment agreement or similar agreement between the Owners and the BP Charterer, be free of any charter (unless the Owners wish to
retain the continuance of any then existing charter in which case the Charterers shall use their best endeavors to procure such continuance);
|
|
(ix) |
be free of officers and crew (unless otherwise agreed by the Owners); and
|
|
(x) |
shall have had her underwater parts treated with ample anti-fouling to last for the ensuing period up to the next scheduled dry docking of the Vessel in
accordance with Classification Society requirements.
|
(b) |
The Owners shall, at the time of the redelivery of the Vessel, take over all bunkers, lubricating oil, unbroached provisions, paints, ropes and other
consumable stores in the Vessel at no cost to the Owners.
|
(c) |
In the case of a redelivery of the Vessel if required because the Charterers do not exercise the Purchase Option:
|
|
(i) |
the Charterers shall give the Owners not less than sixty (60) days preliminary notice of the range of ports of redelivery or port of place or redelivery and
not less than fourteen (14) days definite notice of port or place of redelivery. Any changes thereafter in the Vessel’s position shall be notified by the Charterers immediately to the Owners ;
|
|
(ii) |
the Charterers shall not permit the Vessel to commence any voyage (including any preceding ballast voyage) which cannot be expected to be completed prior on
the Expiry Date; and
|
|
(iii) |
if the time of actual redelivery is after the date on which redelivery is required to take place pursuant to Clause 50 (the "
Redelivery Date
"), the Charterer shall, without prejudice to any other amounts payable under the Leasing Documents (including without limitation pursuant to this
Clause 40) pay to the Owners, as from the first date following the Expiry Date and for each day until the date on which the Vessel is redelivered in accordance with the conditions Clause 40.6(a), the rate of hire equivalent to the
higher of:
|
|
(A) |
the daily Charterhire that would have been payable in the last month of the Charter Period;
|
|
(B) |
the prevailing market rate for the bareboat chartering of vessels of a similar type as the Vessel (as determined by an Approved Valuer appointed by the
Owners); and
|
|
(C) |
the prevailing market rate for the chartering of vessels of a similar type as the Vessel on the Index
|
(d) |
The Owners reserve all rights to recover from the Charterers any costs, expense and/or liabilities incurred or suffered by them (including without limitation,
the costs of any docking and/or repairs which may be required to restore the Vessel to the structure, state, condition and class as that in which the Vessel was delivered (fair wear and tear not affecting class excepted, but without any
recommendations or conditions as to class)) as a result of the Vessel not being redelivered in accordance with the terms of this Charter.
|
40.7 |
If the Vessel, for any reason, becomes a Total Loss after Delivery, the Charterers shall pay the Early Termination Price to the Owners on the earlier of:
|
(a) |
the date falling ninety (90) days after such Total Loss has occurred; and
|
(b) |
the date of receipt by the Owners and/or their financiers (if any), in accordance with the terms of the relevant loss payable clause, of the proceeds of
insurance relating to such Total Loss,
|
|
(i) |
payment of the Charterhire and all other sums payable under the Leasing Documents during such period shall continue to be made by the Charterers in accordance
with the terms thereof unless and until the Owners receive in full the Early Termination Price;
|
|
(ii) |
should insurance proceeds be received by the Owners from the insurers, the Charterers' obligations to pay the Early Termination Price shall be accordingly
reduced by an amount corresponding to such insurance proceeds but in the event that such insurance proceeds are less than the amount of the Early Termination Price together with any interest accrued thereon, the Charterers shall remain
obliged to pay to the Owners the balance so that the full amount of the Early Termination Price due together with any interest accrued thereon is received by the Owners; and;
|
|
(iii) |
the obligation of the Charterers to pay the Early Termination Price shall remain unaffected and exist regardless of whether any of the insurers have agreed or
refused to meet or has disputed in good faith, the claim for Total Loss.
|
40.8 |
The Owners shall have no obligation to supply to the Charterers with a replacement vessel following the occurrence of a Total Loss.
|
41.1 |
In consideration of the Owners entering into this Charter, the Charterers shall pay to the Owners or their nominee
|
(a) |
a non-refundable arrangement fee equal to one point one per cent. (1.10%) of the Financing Amount (the total amount of such arrangement fee payable, the “
Arrangement Fee Amount
”) which shall be payable, and actually received by the Owners or their nominee in two instalments, each payable in
the following amount and at the following times:
|
|
(i) |
the first instalment shall be payable and received by the Owners no later than the payment of the Fifth Instalment or the Sixth Instalment (whichever happens
first) or, if this Charter is terminated prior to the Delivery Date, the date of such termination in an amount equal to zero point five per cent. (0.50%) of the Estimated Financing Amount (the “
First Instalment Arrangement Fee Amount
”); and
|
|
(ii) |
the second instalment shall be payable and received by the Owners no later than the date the Final Instalment is remitted by the Owners as buyer under the MOA
to the Builder’s Bank pursuant to clause 19(b)(iii) (
Payment of Purchase Price by Buyer
) of the MOA or, if this Charter is
terminated prior to the Scheduled Delivery Date with no Delivery taking place, the date of such termination, in an amount in Dollars equal to the Arrangement Fee Amount minus the First Instalment Arrangement Fee Amount; and
|
(b) |
a commitment fee (the “
Commitment Fee
”) in Dollars
computed at the rate of zero point five per cent. (0.50%) per annum on the Committed Amount (Estimated) from time to time for the Pre-delivery Period and the accrued commitment fee is payable on the last day of each successive period of
three (3) months which ends during the Pre-delivery Period and on the last day of the Pre-delivery Period (so that the last payment of the Commitment Fee shall be made by the Charterers on the last day of the Pre-delivery Period),
provided that :
|
|
(i) |
if the Actual Commitment Fee is higher than the aggregate amount of the Commitment Fee payable during the Pre-delivery Period (applying the Committed Amount
(Estimated) in its calculation and disregarding the application of sub-paragraphs (b)(i) and (b)(ii) of this Clause) (such excess amount, the “
Additional Fee
”), the last payment of the Commitment Fee the Charterers shall make on the last day of the Pre-delivery Period shall be increased by the amount of the Additional Fee; and
|
|
(ii) |
if the Actual Commitment Fee is lower than the aggregate amount of the Commitment Fee payable during the Pre-delivery Period (applying the Committed Amount
(Estimated) in its calculation and disregarding the application of the sub-paragraphs (b)(i) and (b)(ii) of this Clause) (such a shortfall, the “
Excess Fee
”), the last payment of the Commitment Fee the Charterers shall make on the last day of the Pre-delivery Period shall be reduced by the amount of the Excess Fee, provided that if the amount of the Excess Fee is
higher than the last payment of the Commitment Fee payable on the last day of the Pre-delivery Period disregarding the application of this sub-paragraph (b)(ii) (such difference, the “
Fee Reimbursement
”), the Owners shall reimburse the Charterers with an amount in Dollars equal to the Fee Reimbursement without any interest.
|
41.2 |
Without prejudice to any other rights of the Owners hereunder, the Charterers shall promptly pay to the Owners on written demand on a full indemnity basis all
costs, charges and expenses incurred by the Owners in collecting any Charterhire, the Pre-delivery Upfront Charterhire or the Advance Charterhire or other payments not paid on the due date under this Charter and in remedying any other
failure of the Charterers to observe the terms and conditions of this Charter.
|
41.3 |
All costs and expenses (including, but not limited to, legal costs) incurred by the Owners or Owners’ legal counsel in the preparation, negotiation and
execution of all documentation in relation to this Charter or any other Pertinent Document (including without limitation any registration or filing expenses, all costs incurred by the Owners and all legal costs, expenses and
|
41.4 |
All costs and expenses incurred by the Owners in relation to the acquisition and registration of the Vessel by the Owners in the Owners’ name in the Buyers’
Nominated Flag State together with any and all fees (including but not limited to any vessel registration and tonnage fees) payable by the Owners to such flag state to maintain and/or renew such registration shall be for the account of
the Charterers. Without prejudice to the foregoing, if the Buyers’ Nominated Flag State requires the Owners to establish a physical presence or office in the jurisdiction of such flag state, all fees, costs and expenses payable by the
Owners to establish and maintain such physical presence or office shall be for the account of the Charterers.
|
41.5 |
All costs and expenses incurred by the Owners in relation to the redelivery of the Vessel by the Owners to the Charterers pursuant to Clause 40 (
Termination, Redelivery and Total Loss
) shall be for the account of the Charterers.
|
41.6 |
Notwithstanding anything to the contrary herein, the indemnities provided by the Charterers shall be provided in favour of the Owners and shall continue in
full force and effect notwithstanding any breach of the terms of this Charter or termination of this Charter pursuant to the terms hereof.
|
42.1 |
No neglect, delay, omission or indulgence on the part of either party in enforcing the terms and conditions of this Charter shall prejudice the strict rights
of that party or be construed as a waiver thereof nor shall any single or partial exercise of any right of either party preclude any other or further exercise thereof.
|
42.2 |
No right or remedy conferred upon either party by this Charter shall be exclusive of any other right or remedy provided for herein or by law and all such
rights and remedies shall be cumulative.
|
(a) |
the Charterers are legally, wholly and directly owned and controlled by the Guarantor and the Guarantor is controlled by affiliate companies to the family of
Mr. Evangelos Pistiolis;
|
(b) |
each Relevant Person is duly incorporated and validly existing under the laws of its jurisdiction of its incorporation;
|
(c) |
each Relevant Person has the corporate capacity, and has taken all corporate actions and obtained all consents, approvals, authorisations, licenses or permits
necessary for it:
|
|
(i) |
to execute each of the Pertinent Documents to which it is a party; and
|
|
(ii) |
to comply with and perform its obligations under each of the Pertinent Documents to which it is a party;
|
(d) |
all the consents, approvals, authorisations, licenses or permits referred to in Clause 44.1(c) (
Representations and Warranties
) remain in force and nothing has occurred which makes any of them liable to revocation;
|
(e) |
each of the Pertinent Documents to which a Relevant Person is a party constitutes such Relevant Person’s legal, valid and binding obligations enforceable
against such party in accordance with its respective terms and any relevant insolvency laws affecting creditors’ rights generally;
|
(f) |
the entry into and performance by each Relevant Person of, and the transactions contemplated by, each Pertinent Document to which it is a party do not and
will not conflict with:
|
|
(i) |
any law or regulation applicable to it;
|
|
(ii) |
the constitutional documents of such Relevant Person; and
|
|
(iii) |
any agreement or instrument binding upon it or any of its assets or constitute a default or termination event (however described) under any such agreement or
instrument;
|
(g) |
there are no outstanding notices or demands from any governmental, quasi-governmental or public authority or instrumentality or any other person claiming
authority in respect of the Vessel requiring any work or other action to be taken or the expenditure of any money to be taken in respect of the Vessel or any part thereof;
|
(h) |
the Vessel is free of encumbrances and liens except for the Permitted Security Interests; no third party has any Security Interest, other than the Permitted
Security Interests, or any other interest, right or claim over, in or in relation to the Vessel, this Charter or any moneys payable hereunder and/or any of the other Pertinent Documents;
|
(i) |
all payments which a Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) is liable to make under any Pertinent Document to
which such Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) is a party may be made by such party without deduction or withholding for or on account of any tax payable under the laws of its Relevant
Jurisdiction;
|
(j) |
no legal or administrative action involving a Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) has been commenced or taken
(including but not limited
|
(k) |
each Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) has paid all taxes applicable to, or imposed on or in relation to it,
its business or if applicable, the Vessel, except for those being contested in good faith with adequate reserves;
|
(l) |
it is not necessary under the laws of the Relevant Jurisdictions that this Charter or any other Leasing Document be registered, filed, recorded, notarized or
enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar taxes or fees be paid on or in relation to the Leasing Documents to which it is a party or the transactions
contemplated by those Leasing Documents; the choice of governing law as stated in each Pertinent Document to which a Relevant Person is a party and the agreement by such party to refer disputes to the relevant courts or tribunals as
stated in such Pertinent Document are valid and binding against such Relevant Person;
|
(m) |
no Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) nor any of their assets are entitled to immunity on the grounds of
sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement);
|
(n) |
the obligations of each Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) under each Pertinent Document to which it is a
party, are the direct, general and unconditional obligations of such Relevant Person and rank at least pari passu with all other present and future unsecured and unsubordinated creditors of such Relevant Person save for any obligation
which is mandatorily preferred by law and not by virtue of any contract;
|
(o) |
each Pertinent Document creates (or, once entered into, will create) the Security Interest which it is expressed to create with the ranking and priority it is
expressed to have;
|
(p) |
the Charterers and any other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) (i) are not US Tax Obligors and (ii) have not
established a place of business in the United Kingdom or the United States of America;
|
(q) |
no Relevant Person or any of their respective directors, officers, and employees is a Restricted Person or is otherwise a target of applicable Sanctions;
|
(r) |
no Relevant Person or any of their respective directors, officers, and employees is in breach of applicable Sanctions laws, and none of them (i) has been or
is currently being investigated on compliance with Sanctions, (ii) has received notice or is aware of any claim, action, suit or proceeding against any of them with respect to Sanctions and (iii) has taken any action to evade the
application of Sanctions;
|
(s) |
no Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) is in breach of any Anti-Money Laundering Laws, Anti-Terrorism
Financing Laws and/or Business Ethics Laws and each Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) has instituted and maintained systems, controls, policies and procedures designed to:
|
|
(i) |
prevent and detect incidences of bribery and corruption, money laundering and terrorism financing; and
|
|
(ii) |
promote and achieve compliance with Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and or Business Ethics Laws including, but not limited to,
ensuring thorough and accurate books and records, and utilization of best efforts to ensure
|
(t) |
that in relation to the Shipbuilding Documents and the BP Charter:
|
|
(i) |
each copy of the Shipbuilding Documents and BP Charter provided to the Owners is a true and complete copy of such document and there have been no amendments,
supplements or variations to the same;
|
|
(ii) |
all amounts due and payable to the Builder under the Contract on or prior to the date hereof have been fully and irrevocably paid to the Builder (receipt of
which has been duly acknowledged by the Builder) and there are no outstanding amounts as at the date hereof which are due, owing or payable to the Builder thereunder;
|
|
(iii) |
there are no unresolved disputes and/or pending claims for payment between the Builder and the Charterers in respect of the Shipbuilding Documents and/or the
Vessel and/or the BP Charter; and
|
|
(iv) |
each of the BP Charterer, Builder and the Refund Guarantor is fully aware of the transactions contemplated under the MOA and this Charter;
|
|
(v) |
each of the Builder and the Refund Guarantor has consented to the assignment by the Charterers to the Owners of all their rights, interests and benefits in
relation to the Shipbuilding Documents pursuant to the Pre-delivery Assignment;
|
|
(vi) |
the BP Charterer has consented to the assignment by the Charterers to the Owners of all their rights, interests and benefits in relation to the BP Charter
pursuant to the General Assignment;
|
(u) |
the Vessel is not employed, operated or managed in any manner which (i) is contrary to any Sanctions and in particular, the Vessel is not used by or to
benefit any party which is a target of Sanctions or trade to any area or country where trading the Vessel to such area or country would constitute a breach of any Sanctions or published boycotts imposed by any of the United Nations, the
European Union, the United States of America, the United Kingdom or the People’s Republic of China (provided that operation or use of the Vessel by the BP Charterer pursuant to the BP Charter shall not in any case be deemed to be in
breach or contrary to any published boycotts imposed by the People’s Republic of China) or (ii) would trigger the operation of any sanctions limitation or exclusion clause in any insurance documentation;
|
(v) |
none of the Relevant Persons nor any of their assets, in each case, has any right to immunity from set off, legal proceedings, attachment prior to judgment or
other attachment or execution of judgement on the grounds of sovereign immunity or otherwise;
|
(w) |
none of the Relevant Persons is insolvent, bankrupt or in liquidation, bankruptcy or administration or subject to any other formal or informal insolvency or
bankruptcy procedure (including, without limitation, those referred to under Clause 48.1(g) (
Termination Events
) and for the
avoidance of doubt including the presentation of a petition for commencing such procedures), and no receiver, administrative receiver, administrator, liquidator, trustee or analogous officer has been appointed in respect of the any
Relevant Person or all or material part of their assets;
|
(x) |
no Termination Event or Potential Termination Event is continuing or might reasonably be expected to result from the entry into and performance of this
Charter or any other Pertinent Document;
|
(y) |
any factual information provided by any Relevant Person (or on their behalf) to the Owners was true and accurate in all material respects as at the date it
was provided or as at the date at which such information was stated;
|
(z) |
none of the following events has occurred:
|
|
(i) |
any default by the Charterers or the BP Charterer under the terms of the BP Charter;
|
|
(ii) |
any default by the Charterers or the Builder under the terms of the Contract;
|
|
(iii) |
breach of any Sanctions;
|
|
(iv) |
upon delivery of the Vessel under the Contract, any casualty or occurrence (including damage caused to the Vessel for any reason whatsoever) which results, or
may be expected to result, in repairs on the Vessel; and
|
|
(v) |
upon and after the commencement of the Charter Period, any casualty or occurrence (including damage caused to the Vessel for any reason whatsoever which
results, or may be expected to result, in repairs on the Vessel) which exceed the Major Casualty Amount and which are not being dealt with in accordance with the Leasing Documents (including without limitation in accordance with Clause
38 and the General Assignment);
|
(aa) |
all Environmental Laws relating to the ownership, operation and management of the Vessel and the business of each Relevant Person (as now conducted and as
reasonably anticipated to be conducted in the future) have been complied with;
|
(bb) |
no Environmental Claim has been made or threatened against any Relevant Person or otherwise in connection with the Vessel; and
|
(cc) |
no Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred.
|
45.1 |
The Charterers undertake that they shall comply or procure compliance with the following undertakings during the Security Period:
|
(a) |
the Charterers shall, on the Delivery Date, procure the delivery of the full legal and beneficial title (free of any Security Interests save for those created
under a Pertinent Document or Financial Instrument) in the Vessel to the Owners;
|
(b) |
there shall be sent to the Owners:
|
|
(i) |
as soon as possible, but in no event later than one hundred and twenty (120) days after the end of each financial year of the Charterers, the audited annual
financial statement accounts of the Charterers for that financial year as referred to in the Guarantor’s audited consolidated annual financial statement accounts of the Guarantor for that financial year to be delivered under Clause
45.1(b)(iii);
|
|
(ii) |
as soon as possible, but in no event later than ninety (90) days after the end of each half-year, the unaudited semi-annual accounts of the Charterers for
that half-year;
|
|
(iii) |
as soon as possible, but in no event later than one hundred and twenty (120) days after the end of each financial year of the Guarantor, the audited
consolidated annual financial statement accounts of the Guarantor for that financial year; and
|
|
(iv) |
as soon as possible, but in no event later than ninety (90) days after the end of each half-year, the semi-annual consolidated unaudited accounts of the
Guarantor for that half-year certified as to their correctness by at least one director of the Guarantor;
|
(c) |
they shall provide to the Owners, at the same time as they are despatched, copies of all notices and minutes relating to any of their extraordinary
shareholders’ meeting which are despatched to the Charterers’ or the Guarantor’s respective shareholders or creditors or any class of them;
|
(d) |
they shall, and shall procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, provide the Owners
with details of any legal or administrative action involving such Relevant Person or the Vessel as soon as such action is instituted;
|
(e) |
they shall, and shall procure that each other Relevant Person will, obtain and promptly renew or procure the obtainment or renewal of and provide copies of,
from time to time, any necessary consents, approvals, authorisations, licenses or permits of any regulatory body or authority for the transactions contemplated under each Pertinent Document to which it is a party (including without
limitation to sell, charter and operate the Vessel);
|
(f) |
they shall not, and shall procure that each other Relevant Person will not, create, assume or permit to exist any Security Interest (other than any Permitted
Security Interest) of any kind upon any Pertinent Document to which such Relevant Person is a party, and if applicable, the Vessel;
|
(g) |
they shall at their own cost and shall procure that each other Relevant Person will:
|
|
(i) |
do all that such Relevant Person reasonably can to ensure that any Pertinent Document to which such Relevant Person is a party validly creates the obligations
and the Security Interests which such Relevant Person purports to create; and
|
|
(ii) |
without limiting the generality of paragraph (i), promptly register, file, record or enroll any Pertinent Document to which such Relevant Person is a party
with any court or authority in all Relevant Jurisdictions, pay any stamp duty, registration or similar tax in all Relevant Jurisdictions in respect of any Pertinent Document to which such Relevant Person is a party, give any notice or
take any other step which, is or has become necessary or desirable for any such Pertinent Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which such Relevant
Person creates;
|
(h) |
they shall notify the Owners as soon as possible (but in any event no later than ninety (90) days prior to the third anniversary of the charter period
commencement date under the BP Charter), together with any evidence requested by the Owners, whether the BP Charterer intends to and will (with irrevocable confirmation from the BP Charterer) extend the charter period of the BP Charter
in accordance with the terms thereunder;
|
(i) |
they shall, and shall procure that each other Relevant Person will (where applicable), notify the Owners as soon as they become aware of the occurrence of:
|
|
(i) |
any default by either the BP Charterer or Charterers of the terms of the BP Charter;
|
|
(ii) |
an event of default or termination event howsoever called under the terms of the BP Charter entitling either the Charterers or the BP Charterer to terminate
the BP Charter;
|
|
(iii) |
any default by any party of the terms of any Shipbuilding Document;
|
|
(iv) |
any event entitling the Charterers or the Builder to rescind the Contract;
|
|
(v) |
breach of any Sanctions; or
|
|
(vi) |
any Potential Termination Event or a Termination Event,
|
(j) |
they shall, and shall procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, on the sixth month
anniversary of the Delivery Date and at six-monthly intervals thereafter and otherwise upon the Owners’ and/or their financiers (if any) request from time to time and as soon as practicable after receiving such request, provide the
Owners with any additional financial or other information relating:
|
|
(i) |
to themselves and/or the Vessel (including, but not limited to the employment, condition, class records and location of the Vessel) and, to their best
knowledge having made due enquiry, to the BP Charterer, the Builder and the Refund Guarantor;
|
|
(ii) |
the terms and conditions of any sub-charter together with any other information relating to such sub-charter; and
|
|
(iii) |
to any other matter (which include without limitation, to their best knowledge having made due enquiry, any other matters relating to the BP Charterer, the
Builder and the Refund Guarantor) which may be reasonably requested by the Owners (or their financiers (if any)) at any time or which under the terms of the relevant Pertinent Document may be sought from the person in possession of such
information.
|
(k) |
without prejudice to Clause 45.1(q) (
Undertakings
),
comply, or procure compliance, and shall procure that each other Relevant Person will comply or procure compliance, with all laws or regulations relating to the Vessel and its construction, ownership, employment, operation, management
and registration, including the ISM Code, the ISPS Code, all Environmental Laws and the laws of the Vessel’s registry and shall procure that the Technical Manager and the Commercial Manager and the Vessel to be in the possession of
proper trading certificates and other vessel related documents and to comply with other relevant laws and regulations;
|
(l) |
the Vessel shall be classed with the Approved Classification Society and shall be free of all overdue recommendations and requirements;
|
(m) |
they shall not and ensure that neither the Other Charterer nor the Guarantor shall enter into any form of merger, sub-division, amalgamation, demerger,
reorganization, corporate reconstruction or change of ownership without the Owners’ prior consent;
|
(n) |
subject to Clause 45(v), they shall ensure that the Market Value of the Vessel will be tested at the following instances:
|
|
(i) |
on or about the date of this Charter, on the date falling six months thereafter and at six-monthly intervals thereafter (each such date the “
Market Value Test Date
”) and the Charterers shall procure a valuation report issued by the Approved Valuers evidencing such Market Value
applicable to a Market Value Test Date to be delivered to the Owners no later than that Market Value Test Date; and
|
|
(ii) |
if, in the opinion of the Owners, any volatile market fluctuations occurs that may affect the value of the Vessel or vessels of the similar type of the
Vessel, at any time at the request of the Owners;
|
|
(iii) |
at any time at the request of the Owners if the Owners have determined that the Market Value of the Vessel is likely to fall below an amount equal to 125% of
the then applicable Early Prepayment Sum;
|
|
(iv) |
valuation of the Market Value of the Vessel is required pursuant to Clause 45(v); and
|
|
(v) |
upon the occurrence of a Potential Termination Event or Termination Event, at any time at the request of the Owners,
|
(o) |
they shall notify the Owners immediately of:
|
|
(i) |
any Environmental Claim made against the Charterers or any subcharter of the Vessel in connection with the Vessel or any Environmental Incident;
|
|
(ii) |
arrest or detention of the Vessel;
|
|
(iii) |
any exercise or purported exercise of any lien on that Vessel or its Earnings or any requisition of that Vessel for hire;
|
|
(iv) |
any damage caused to or alteration of the Vessel for any reason whatsoever which results, or may be expected to result, in repairs on the Vessel which exceed
$1,000,000; or
|
|
(v) |
any casualty or occurrence as a result of which the Vessel has become or is, by the passing of time or otherwise, likely to become, a Major Casualty;
|
(p) |
they shall not permit the sub-chartering of the Vessel except in the following situations:
|
|
(i) |
the Vessel is let on a time charter basis for a period not exceeding twelve (12) months (inclusive of optional extension periods) unless
|
(q) |
they shall, and shall procure that each other Relevant Person (other than the Refund Guarantor and the Builder) will, comply with all applicable laws and
regulations in respect of Sanctions, and in particular, the Charterers shall effect and maintain a sanctions compliance policy to ensure compliance with all such laws and regulations implemented from time to time;
|
(r) |
they shall, and shall procure that each other Relevant Person (other than the BP Charterer, the Refund Guarantor and the Builder) and their respective
officers, directors and employees, will:
|
|
(i) |
conduct its business in compliance with all Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and/or Business Ethics Laws;
|
|
(ii) |
maintain systems, controls, policies and procedures designed to promote and achieve ongoing compliance with Anti-Money Laundering Laws, Anti-Terrorism
Financing Laws and/or Business Ethics Laws;
|
|
(iii) |
in respect of the Charterers, not use, or permit or authorize any person to directly or indirectly use, the Financing Amount for any purpose that would breach
any Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and/or Business Ethics Laws;
|
|
(iv) |
not lend, invest, contribute or otherwise make available the Financing Amount to or for any other person in a manner which would result in a violation of
Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and/or Business Ethics Laws.
|
(s) |
they shall, and shall procure that that each other Relevant Person will, promptly notify the Owners and provide all information in relation to its business
and operations which may be relevant for the purposes of ascertaining whether they are in compliance with all applicable laws and regulations relating to Sanctions, and in particular, the Charterers shall notify the Owners in writing
immediately upon being aware that any of the Charterers’ shareholders, directors, officers or employees is a Restricted Person or has otherwise become a target of Sanctions;
|
(t) |
they shall not appoint or permit to be appointed any manager of the Vessel save for an Approved Manager on terms acceptable to the Owners and their financiers
(if any) and such Approved Manager has (prior to accepting its appointment entered into a Manager’s Undertaking and, if required by the Owners, acceded to the Trust Deed);
|
(u) |
if at any time, the Market Value of the Vessel falls below the amount equivalent to 125% of the then applicable Early Prepayment Sum (the “
LTV Breach
” and the said difference between the Market Value of the Vessel and 125% of the then applicable Early Prepayment Sum shall be
referred to as the “
shortfall
”), the Charterers shall promptly, and in any event no later than the date falling thirty (30) days from
the earlier of (a) the Charterers’ receipt from the Owners notifying them of such LTV Breach and (b) the Charterers’ receipt of the relevant valuation of the Market Value, pay to the Owners to an account nominated by the Owners and
notified to the Charterers, without set-off or deduction, an amount in Dollars equivalent to that shortfall as deposit and such amount actually received by the Owners shall constitute to part of the Deposit then retained by the Owners.
|
(v) |
once the number of Fleet Vessels owned by the Group becomes less than five (the “
Relevant Time
”):
|
|
(i) |
the Charterers shall notify the Owners immediately of such occurrence;
|
|
(ii) |
the Owners shall have the right to request the Market Value of all the Fleet Vessels to be tested (at the Charterers’ costs) at any time as from the Relevant
Time and the Charterers shall ensure such Market Value be so tested (at the Charterers’ costs) immediately upon the Owners’ request; and
|
|
(iii) |
upon request by the Owners, the Charterers shall promptly and in any event no later than the date falling thirty (30) days from such request, pay to the
Owners to an account nominated by the Owners and notified to the Charterers, without set-off or deduction, an amount in Dollars as deposit an amount which will ensure that after payment of such deposit the Market Value of the Vessel is
not more than sixty per cent. (60%) of the amount equal to the then applicable Early Prepayment Sum and such amount actually received by the Owners shall become part of the Deposit then retained by the Owners;
|
(w) |
save with the prior written consent of the Owners, they shall not, and shall procure that no other Relevant Person shall, agree or enter into any transaction,
arrangement, document or do or omit to do anything which will have the effect of varying, amending, supplementing or waiving any term of any Shipbuilding Document or the BP Charter;
|
(x) |
they shall ensure that:
|
|
(i) |
all Earnings and any other amounts received by them in connection with the Vessel are paid into the Operating Account;
|
|
(ii) |
all operating expenses in connection with the Vessel are paid from the Operating Account or via the monthly budget from the manager’s bank account which shall
be credited from the Operating Account; and
|
|
(iii) |
the credit balance in the Operating Account shall not at any time as from the Delivery Date be less than $1,000,000,
|
(y) |
they shall not make or pay any dividend or other distribution (in cash or in kind) in respect of its share capital following the occurrence of a Potential
Termination Event or Termination Event;
|
(z) |
the Vessel shall be registered under the Buyers’ Nominated Flag State at all times;
|
(aa) |
they shall be responsible for losses directly or indirectly arising out of the defects of the design of the Vessel and/or the Charterers' negligence in the
supervision of the construction of the Vessel; and
|
(bb) |
they shall ensure that the Vessels to be maintained with all spare parts on board and on order and with all stores on board together with all records, logs,
plans, operating manuals and drawings in relation to the Vessel or the Vessel’s operations and/or maintenance.
|
46.1 |
Without prejudice to Clause 46.2 (
Inspection of Vessel
)
below, the Owners shall, after giving notice to the Charterers, be entitled to inspect or survey the Vessel or instruct a surveyor to carry out such survey on their behalf:
|
(a) |
to ascertain the condition of the Vessel and satisfy themselves that the Vessel is being properly repaired and maintained;
|
(b) |
in dry-dock if the Charterers have not dry-docked the Vessel in accordance with Clause 10(g) (
Periodical Dry-docking
); and
|
(c) |
for any other reason they consider necessary,
|
46.2 |
The Owners shall be entitled to exercise its rights of inspection or survey as described under Clause 46.1 (
Inspection of Vessel
) once a year at the cost of the Charterers and at any other time at the cost of the Owners (and, except where inspection or survey is carried out pursuant to
the following (a) or (b), without interference to the operation of the Vessel), save that (a) upon the occurrence of a Termination Event or Potential Termination Event or the occurrence of any major insurance claims (in the opinion of
the Owners) in respect of the Vessel, the Owners shall have the right to inspect or survey the Vessel or instruct a duly authorized surveyor to carry out such survey on their behalf at any time (and for the avoidance of doubt, more than
once a year) without prior notice to, and at the cost of, the Charterers; and (b) the Owners shall have the right to inspect or survey the Vessel or instruct a duly authorized surveyor to carry out such survey on their behalf at any
time prior to the Delivery Date. The Charterers shall procure that the Owners can fully exercise such rights of inspection and survey.
|
46.3 |
The Charterers shall also permit the Owners to inspect the Vessel’s log books whenever requested and shall whenever required by the Owners furnish them with
full information regarding any casualties or other accidents or damage to the Vessel.
|
48.1 |
The Owners and the Charterers hereby agree that any of the following events shall constitute a Termination Event:
|
(a) |
any Relevant Person fails to make any payment on the due date or on demand in accordance with the terms of any Pertinent Document to which it is a party,
unless such non-payment is caused by administrative or technical error and the relevant payment is made within five (5) Business Days of the relevant due date;
|
(b) |
the Charterers breach or omit to observe or perform any of their undertakings in Clause 45.1(a), 45.1(e), 45.1(f), 45.1(i), 45.1(k), 45.1(o), 45.1(q),
45.1(r), 45.1(s), 45.1(u), 45.1(v), 45.1(x)(iii), or 45.1(z) (
Undertakings
) or the Guarantor breaches or omits to observe or perform
any of its undertakings or the financial covenants contained under clause 11.14 (
financial covenants
) of the Guarantee;
|
(c) |
the Charterers fail to obtain and/or maintain the Insurances required under Clause 38 (
Insurance
) in accordance with the provisions thereof (or any insurer in respect of such Insurances cancels the Insurances or disclaims liability with respect thereto);
|
(d) |
any Relevant Person commits any other breach of, or omits to observe or perform, any of their other obligations or undertakings in this Charter or any
Pertinent Document (other than a breach referred to in paragraphs (a), (b) and (c) above) unless such breach or omission is in the opinion of the Owners, remediable and the Relevant Person remedies (or cause to remedy) such breach or
omission to the satisfaction of the Owners within five (5) Business Days of the occurrence of such breach or omission;
|
(e) |
any representation or warranty made by any Relevant Person in or pursuant to any Pertinent Document to which it is a party proves to be untrue or misleading
when it is made;
|
(f) |
any of the following occurs in relation to any Financial Indebtedness of the Charterers, each Other Charterer, the Guarantor or any member of the Group:
|
|
(i) |
any Financial Indebtedness of such entity is not paid when due or, if so payable, on demand after any applicable grace period has expired;
|
|
(ii) |
any Financial Indebtedness of such entity becomes due and payable, or capable of being declared due and payable, prior to its stated maturity date as a
consequence of any event of default and not as a consequence of the exercise of any voluntary right of prepayment;
|
|
(iii) |
a lease, hire purchase agreement or charter creating any Financial Indebtedness of such entity is terminated by the lessor or owner as a consequence of any
termination event or event of default (howsoever defined); or
|
|
(iv) |
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative
contract or transaction, relating to any Financial Indebtedness of such entity ceases to be available or becomes capable of being terminated or declared due and payable or cash cover is required or becomes capable of being required, as
a result of any termination event or event of default (howsoever defined);
|
(g) |
any of the following occurs in relation to the Charterers, each Other Charterer, the Guarantor or any member of the Group:
|
|
(i) |
such entity becomes, in the opinion of the Owners, unable to pay their debts as they fall due;
|
|
(ii) |
in respect of such entity, the value of its assets is less than its liabilities (taking into account contingent liabilities);
|
|
(iii) |
any administrative or other receiver is appointed over all or a substantial part of the assets of such entity unless as part of a solvent reorganisation which
has been approved by the Owners;
|
|
(iv) |
such entity makes any formal declaration of bankruptcy or any formal statement to the effect that they are insolvent or likely to become insolvent, or a
winding up or administration order is made in relation to such entity, or the members or directors of such entity pass a resolution to the effect that they should be wound up, placed in administration or cease to carry on business;
|
|
(v) |
a petition is presented in any Relevant Jurisdiction for the winding up or administration, or the appointment of a provisional liquidator, of such entity;
|
|
(vi) |
such entity petitions a court, or presents any proposal for, any form of judicial or non-judicial suspension or deferral of payments, reorganisation of their
debt (or certain of their debt) or arrangement with all or a substantial proportion (by number or value) of their creditors or of any class of them or with a minority proportion (by number or value) of their creditors or of any class of
them which would reasonably likely to have a Material Adverse Effect or any such suspension or deferral of payments, reorganisation or arrangement is effected by court order, contract or otherwise;
|
|
(vii) |
any meeting of the members or directors of such entity is summoned for the purpose of considering a resolution or proposal to authorise or take any action of
a type described in paragraph (iii), (iv), (v) or (vi);
|
|
(viii) |
,in any jurisdiction, any event occurs or any procedure is commenced which, in the opinion of the Owners, is similar to any of the foregoing referred to in
(ii) to and including (vii) above; or
|
|
(ix) |
any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction which affects any asset or assets of such
entity which is not discharged within fourteen (14) days;
|
(h) |
a Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) suspends or ceases or threatens to suspend or cease carrying on its
business;
|
(i) |
any consent, approval, authorisation, license or permit necessary to enable the Charterers or the BP Charterer to operate or charter the Vessel, the Builder
to sell and construct the Vessel, or any of Relevant Person to comply with any provision of Pertinent Document (as the case may be) and/or to ensure that the obligations of any Relevant Person under any Pertinent Document are legal,
valid, binding or enforceable (I) is not granted, (II) expires without being renewed, (III) is revoked or becomes liable to revocation or (IV) any condition of such a consent, approval, authorisation, license or permit is not fulfilled;
|
(j) |
any event or circumstance occurs which (in the opinion of the Owners) has or is reasonably likely to have a Material Adverse Effect;
|
(k) |
this Charter or any Pertinent Document or any Security Interest created by a Pertinent Document:
|
|
(i) |
is cancelled, terminated, rescinded or suspended or otherwise ceases to remain in full force and effect for any reason or no longer constitutes valid, binding
and enforceable obligations of any party to that document for any reason whatsoever; or
|
|
(ii) |
is amended or varied without the prior written consent of the Owners;
|
(l) |
a Relevant Person rescinds or purports to rescind or repudiates or purports to repudiate a Pertinent Document;
|
(m) |
the Security Interest constituted by any Pertinent Document is in any way imperiled or in jeopardy;
|
(n) |
any Termination Event (as defined in the Other Charter) occurs under the Other Charter;
|
(o) |
the occurrence of any of the following events;
|
|
(i) |
an event of default or termination event howsoever called under the terms of the BP Charter entitling either the BP Charterer or the Charterers to terminate
the BP Charter;
|
|
(ii) |
any default by any party of the terms of any Shipbuilding Document (including the occurrence of any Buyer’s Default) including, without limitation, any event
entitling the Charterers to rescind or terminate the Contract; or
|
|
(iii) |
breach of any Sanctions;
|
(p) |
Delivery does not occur on or prior to the Cancelling Date;
|
(q) |
there occurs:
|
|
(i) |
the filing of a petition or the making of an order or the passing of an effective resolution for the winding up of the bank issuing the Refund Guarantee
(other than for the purpose of reconstruction or amalgamation which has been previously approved in writing by the Owners) or the appointment of a receiver, administrator, compulsory manager, trustee, liquidator or other similar officer
has been made against the Refund Guarantor or any of its assets under the laws of any jurisdiction or the appointment of a receiver of the undertaking or property of the Refund Guarantor, or the insolvency of or suspension of payments
by the Refund Guarantor, or the making by the Refund Guarantor of any special arrangement or composition with the creditors of the Refund Guarantor, provided there is a the failure to replace the Refund Guarantor with an alternative
refund guarantor acceptable to the Charterers and the Owners; or
|
|
(ii) |
an event analogous to any of those set out at paragraph (i) above in relation to the Builder (disregarding the proviso thereto);
|
(r) |
a Total Loss has occurred in respect of the Vessel or any damage has occurred in respect of the Vessel which, in the opinion of Owners, with the passage of
time may result in a Total Loss of the Vessel or otherwise materially and adversely affects the value of the Vessel;
|
(s) |
the BP Charterer does not exercise its option to extend the charter period of the BP Charter beyond the third anniversary or, if such charter period extends
beyond its third anniversary, the fourth anniversary of the charter period commencement date thereunder unless the Charterers, subject to Clause 45.1(p), has entered into a Substitute Charter, and the Charterers have provided evidence
requested by the Owners relating to the entry into, and validity of, such Substitute Charter no later than one (1) month prior to the third anniversary and, if such charter period extends beyond its third anniversary, the fourth
anniversary (each a “
Notification Date
”) of the charter period commencement date of the BP Charter, provided
|
(t) |
if a Substitute Charter has been entered into pursuant to Clause 48.1(s) or pursuant to this Clause (t) (as a New Substitute Charter (as defined hereunder)
and the charter period under such Substitute Charter expires or is otherwise terminated prior to the Expiry Date, unless the Charterers, subject to Clause 45.1(p), has entered into another replacing Substitute Charter (each such
replacing Substitute Charter, the “
New Substitute Charter
”), and the Charterers have provided evidence requested by the Owners
relating to the entry into, and validity of, such New Substitute Charter no later than one (1) month prior to the expiry or termination date of the then existing Substitute Charter (each a “
New Notification Date
”), provided that if the Charterer does not enter into a New Substitute Charter by a New Notification Date non-entry thereof shall not constitute a
Termination Event under this Clause 48.1(t) if the Charterer (i) serves a notice of its intention to pay to the Owners as deposit an amount equal to 13.5% of the aggregate of the then applicable Early Prepayment Sum on the first Payment
Date to occur after that New Notification Date and (ii) such deposit shall be paid by the Charterers to an account nominated by the Owners and notified to the Charterers and received by the Owners (without set-off or deduction and
without counting the Charterhire instalment payable on that Payment Date) on such Payment Date and such amount actually received by the Owners shall become a part of the Deposit then retained by the Owners;
|
(u) |
there is a merger, amalgamation, demerger or corporate reconstruction of the Charterer, the Other Charterer and the Guarantor without the Owners’ prior
written consent;
|
(v) |
the Guarantor is de-listed from the NASDAQ Capital Markets or the trading of its shares is suspended for more than 5 Business Days for any reason whatsoever;
|
(w) |
there is a change in control of ownership or control of the Charterers or there is a change of control in the case of the Guarantor that set out in Clause
44.1(a) unless prior written consent from the Owners has been obtained prior to such change;
|
(x) |
the Refund Guarantee ceases to be valid and enforceable (unless, for the avoidance of doubt, Delivery has already taken place); or
|
(y) |
there is any occurrence of any litigation, arbitration or administrative proceedings or investigations involving a Relevant Person which has been commenced or
taken and has been adversely determined and which would have or is reasonably likely to have a Material Adverse Effect.
|
48.2 |
Subject to Clause 48.3 below, upon the occurrence of a Termination Event which is continuing on or after Delivery whereupon the then applicable Early
Termination Price shall become immediately due and payable by the Charterers unless this Charter is terminated pursuant to Clause 48.3.The Owners shall notify the Charterers of occurrence of such Termination Event (the "
Termination Event Notice
") other than if the relevant Termination Event is an event described under Clause 48.1(g), the Owners are not
required to serve such a notice to the Charterers.
|
48.3 |
If
|
|
(i) |
a Termination Event Notice is served by the Owners to the Charterers; or
|
|
(ii) |
a Termination Event has occurred on or after Delivery pursuant to Clause 48.1(g); or
|
|
(iii) |
a Termination Event has occurred prior to Delivery,
|
|
(A) |
in the case where the relevant Termination Event is an event described under Clause 48.1(a) or Clause 48.1(g), to notify the Charterers at any time of the
Owners’ intention to terminate this Charter whereupon this Charter shall immediately terminate, provided that the Owners’ rights under Clause 40.3 shall remain until this Charter is so terminated;
|
|
(B) |
in the case of paragraph (i) above and if the relevant Termination Event is not an event described under Clause 48.1(a) or Clause 48.1(g), to notify the
Charterers of the Owners’ intention to terminate this Charter (the “
Termination Notice
”) whereupon, unless the Charterers request in
writing for a period no longer than 30 days commencing from the date of the Termination Notice (such period the “
Charterers’ Remarketing
Period
”) before this Charter can be so terminated and then this Charter shall terminate on the earlier of the end of the Charterers’ Remarketing Period or the completion of the sale of the Vessel pursuant to Sub-paragraph B(1)
or (B)(2) below:
|
|
(1) |
the Charterers may submit to the Owners evidence (to the satisfaction of the Owners) of a purchaser offering by way of a firm offer (on the basis that sale
and purchase of the Vessel shall take place within the Charterers’ Remarketing Period and subject to customary closing conditions and Owners’ investigation on know your client issues) an amount at least equal to the then current amount
of the Early Termination Price following which the Owners will use reasonable endeavors to enter into a memorandum of agreement (in a form acceptable to the Owners and the relevant counterparty buyer and on the basis that sale and
purchase of the Vessel shall take place within the Charterers’ Remarketing Period) pursuant to such offer; or
|
|
(2) |
the Charterers may elect by delivering a written notice to the Owners to purchase the Vessel by payment of the then current amount of the Early Termination
Price (which has become due and payable pursuant to Clause 48.2) and such payment shall be made no later than the end of the Charterers’ Remarketing Period and upon receipt of such payment the Owners shall transfer the title of the
Vessel to the Charterers in accordance with Clause 40.4,
|
|
(C) |
in the case of paragraph (iii), in accordance with Clause 6.1(a)(ii)(A) of the Pre-delivery Assignment, to require the Charterers to pay the Pre-delivery
|
48.4 |
For the avoidance of doubt, notwithstanding any action taken by the Owners following a Termination Event, the Charterers shall remain liable for the
outstanding obligations on their part to be performed under this Charter.
|
48.5 |
Without limiting the generality of the foregoing or any other rights of the Owners, upon the occurrence of a Termination Event which is continuing, the Owners
shall have the sole and exclusive right and power to (i) settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to or pertaining to the Vessel and this Charter and (ii) make proof of loss, appear in
and prosecute any action arising from any policy or policies of insurance maintained pursuant to this Charter, and settle, adjust or compromise any claims for loss, damage or destruction under, or take any other action in respect of,
any such policy or policies, (iii) change or appoint a new manager (whether or not it is an Approved Manager) for the Vessel and the appointment of the originally appointed Approved Manager may be terminated immediately without any
recourse to the Owners.
|
48A.1 |
If it becomes unlawful in any applicable jurisdiction for the Owners to perform any of their obligations as contemplated by this Charter or the MOA or their
financiers to perform their obligations under the Financial Instruments, the Owners shall notify the Charterers of this event and the Charterers shall be required:
|
|
(i) |
if such circumstance occurs on or after Delivery, to pay the Early Termination Price; or
|
|
(ii) |
if such circumstance occurs prior to Delivery, to pay the Pre-delivery Termination Sum,
|
48A.2 |
If it is or has become:
|
|
(i) |
unlawful or prohibited, whether as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing
law is or will be interpreted or applied; or
|
|
(ii) |
contrary to, or inconsistent with, any regulation,
|
|
(A) |
if such circumstance occurs on or after Delivery, to pay the Early Termination Price; or
|
|
(B) |
if such circumstance occurs prior to Delivery, to pay the Pre-delivery Termination Sum,
|
48A.3 |
If there is a breach of 45.1(i), 45.1(q), 45.1(r) or 45.1(s) in any such case on the basis that reference to “the People’s Republic of China” applies to the
definition of “Restricted Person” or paragraph (e) of the definition of “Sanctions Authority” applies to the definition of “Sanctions Authority”, the Charterers shall be required:
|
|
(A) |
if such circumstance occurs on or after Delivery, to pay the Early Termination Price; or
|
|
(B) |
if such circumstance occurs prior to Delivery, to pay the Pre-delivery Termination Sum,
|
(a) |
If the Early Termination Price becomes payable in accordance with Clause 48A.1 or Clause 48A.2 or Clause 48A.3 the same shall (in each such case) be payable
in consideration of the purchase and transfer of the legal and beneficial title of the Vessel pursuant to Clause 51. The day on which the Early Termination Price is paid pursuant to Clause 48A1, Clause 48A2 or Clause 48A3 is a “
Mandatory Sale Date
” and such transfer of Vessel provided under this paragraph (a) is a “
Mandatory Sale
”.
|
(b) |
The Pre-delivery Termination Sum becomes payable in accordance with Clause 48A.1 or Clause 48A.2 or Clause 48A.3 the same shall (in each such case) be payable
in consideration of the Pre-delivery Releases pursuant to the terms of the Pre-delivery Assignment,
|
49.1 |
Subject to Clause 49.2 (
Early Termination Option
), the
Owners hereby grant to the Charterers an early termination option to require the Owners to sell all of the Owners’ beneficial and legal right, title and interest in the Vessel and all belongings to her, to the Charterers upon the terms
and conditions of this Charter.
|
49.2 |
Subject to the other terms and conditions of this Charter, the Early Termination Option shall only be exercisable by the Charterers on an Early Termination
Date provided that no Termination Event has occurred and is continuing and all obligations, duties, liabilities and indemnities of the Charterers under the Leasing Documents have been fully performed and (if applicable) paid.
|
49.3 |
The Early Termination Date:
|
(a) |
shall not fall on a date falling before the third anniversary of the Delivery Date; and
|
(b) |
shall fall on a Payment Date.
|
49.4 |
The Early Termination Option may be exercised by the Charterers by giving the Owners a notice to such effect (“
Early Termination Notice
”) at least sixty (60) days prior to the relevant intended Early Termination Date of its intention to exercise the Early Termination Option.
|
49.5 |
The Early Termination Notice shall be signed by a duly authorised officer or attorney of the Charterers and shall contain the following information:
|
(a) |
the relevant Early Termination Date; and
|
(b) |
the relevant Early Termination Price,
|
49.6 |
The Charterers may only serve an Early Termination Notice once throughout the duration of the Charter Period (unless otherwise agreed by the Owners in their
absolute discretion).
|
49.7 |
Upon the exercise of the Early Termination Option, the Owners and the Charterers shall thereupon perform their respective obligations referred to in Clause 51
(
Sale of the
Vessel) and the Early Termination Price shall be paid by the Charterers on the Early Termination Date.
|
50.1 |
The Charterers shall, on the Expiry Date (unless the Early Termination Option has been exercised and the Early Termination Price has been paid in accordance
with the terms of this Charter), have the right to purchase from the Owners all of the Owners’ beneficial and legal rights, title and interest in the Vessel and all belongings to her (the “
Purchase Option
”) upon payment to the Owners the Final Purchase Option Price in full (subject to Clause 36.15) in accordance with Clause 51 (
Sale of the Vessel
), provided that the Charterers shall give the Owners a notice confirming the Charterers’ intention to exercise the Purchase Option at least
sixty (60) days prior to the Expiry Date and such notice shall be irrevocable. If the Charterers do not exercise the Purchase Option, the Charterers shall redeliver the Vessel to the Owners in accordance with Clause 40.6 on the Expiry
Date.
|
51.1 |
The exercise of any of the Purchase Option or the Early Termination Option or the completion of the Mandatory Sale shall take place on the Expiry Date or the
Early Termination Date or the Mandatory Sale Date (as the case may be) whereupon the Owners will sell to the Charterers (or their nominee), and the Charterers (or their nominee) will purchase from the Owners, all the legal and
beneficial interest and title in the Vessel, for the Final Purchase Option Price or Early Termination Price on an “as is where is” basis and on the following terms and conditions:
|
(a) |
the Charterers expressly agree and acknowledge that no condition, warranty or representation of any kind is or has been given by or on behalf of the Owners in
respect of the Vessel or any part thereof, and accordingly the Charterers confirm that they have not, in entering into this Charter, relied on any condition, warranty or representation by the Owners or any person on the Owners’ behalf,
express or implied, whether arising by law or otherwise in relation to the Vessel or any part thereof, including, without limitation, warranties or representations as to the description, suitability, quality, merchantability, fitness
for any purpose, value, state, condition, appearance, safety, durability, design or operation of any kind or nature of the Vessel or any part thereof, and the benefit of any such condition, warranty or representation by the Owners is
hereby irrevocably and unconditionally waived by the Charterers to the extent permissible under applicable law;
|
(b) |
the Charterers hereby also waive any rights which they may have in tort in respect of any of the matters referred to under paragraph (a) above and irrevocably
agree that the Owners shall have no greater liability in tort in respect of any such matter than they would have in contract after taking account of all of the foregoing exclusions. No third party making any representation or warranty
relating to the Vessel or any part thereof is the agent of the Owners nor has any such third party authority to bind the Owners thereby. Notwithstanding anything contained above, nothing contained herein is intended to obviate, remove
or waive any rights or warranties or other claims relating thereto which the Charterers (or their nominee) or the Owners may have against the manufacturer or supplier of the Vessel or any third party;
|
(c) |
the Vessel shall be free from any registered mortgages incurred by the Owners (save for those mortgages, liens, encumbrances and debts arising out of or in
connection with the Charter or the Pertinent Documents or any other Permitted Security);
|
(d) |
the Final Purchase Option Price or Early Termination Price shall be paid by (or on behalf of) the Charterers to the Owners on the Expiry Date or the Early
Termination Date or the Mandatory Sale Date (as the case may be) together with unpaid amounts of Charterhire and other moneys owing by or accrued or due from the Charterers under this Charter on or prior to the Expiry Date or the Early
Termination Date or the Mandatory Sale Date (as the case may be) which remain unpaid; and
|
(e) |
concurrently with the Owners receiving irrevocable payment of the Final Purchase Option Price or, as the case may be, the applicable Early Termination Price
and all other moneys payable under this Charter in full pursuant to the terms of this Charter, the Owners shall (save in the event of Total Loss) (at the Charterer’s cost) transfer the legal and beneficial ownership of the Vessel on an
“as is where is” basis to the Charterers or their nominees and shall (at the Charterers’ cost) execute a bill of sale and a protocol of delivery and acceptance evidencing the same and any other document strictly necessary to transfer
the title of the Vessel to the Charterers (and to the extent required for such purposes, the Vessel shall be deemed first to have been redelivered to the Owners), provided that the Owners shall not be obliged to transfer the legal and
beneficial interest in the Vessel to the Charterers in any event unless the Owners are satisfied that no Termination Event has occurred and is continuing and all obligations, duties, liabilities and indemnities of the Charterers under
the Pertinent Documents have been fully performed and (if applicable) paid.
|
52.1 |
The Charterers shall pay such amounts to the Owners, on the Owners’ demand, in respect of all claims, expenses, liabilities, losses, fees (including but not
limited to any vessel registration and tonnage fees or any tax incurred by the Owners as a result of the operation and/or trading of the Vessel) suffered or incurred by or imposed on the Owners arising from this Charter and any
Pertinent Document, including but not limited to (i) in connection with delivery, possession, performance, control, registration, repair, survey, insurance, maintenance, manufacture, purchase, ownership and operation of the Vessel by
the Owners, (ii) costs related to the prevention or release of liens or detention of or requisition, use, operation or redelivery, sale or disposal of the Vessel or any part of it and (iii) enforcing the Owners’ rights under this
Charter or any Pertinent Document, in each case of paragraphs (i) to (iii), whether prior to, during or after termination of the leasing of this Charter and whether or not the Vessel is in the possession or the control of the Charterers
or otherwise. Without prejudice to its generality, this Clause covers any claims, expenses, liabilities and losses which arise, or are asserted, under or in connection with any law relating to safety at sea, the ISM Code, the ISPS Code,
the MARPOL Protocol, any Environmental Law, any Sanctions or any Anti- Money Laundering Laws, Anti-Terrorism Financing Laws or Business Ethics Laws.
|
52.2 |
The Charterers agree to indemnify the Owners against all consequences or liabilities arising from the Master, officers or agents signing Bills of Lading or
other documents.
|
52.3 |
In consideration of the Charterers requesting the Other Owners to charter the Other Vessels to the Other Charterers under the Other Charters, the Charterers
hereby irrevocably and unconditionally undertake to pay immediately on demand from the Owners such amounts in respect of all claims, expenses, liabilities, losses, fees of every kind and nature and all other moneys due, owing and/or
payable to the Other Owners (or any of them) under or in connection with the Other Charters (or any of them), and to indemnify and hold the Other Owners harmless against all such moneys, costs, fees and expenses.
|
52.4 |
All rights which the Charterers have at any time (whether in respect of this Charter or any other transaction) against the Other Charterer or any Relevant
Person shall be fully subordinated to the rights of the Owners under the Pertinent Documents and until the end of this Charter and unless the Owners otherwise direct, the Charterers shall not exercise any rights which it may have
(whether in respect of this Charter or any other transaction) by reason of performance by it of its obligations under the Pertinent Documents or by reason of any amount becoming payable, or liability arising, under this Clause:
|
(a) |
to be indemnified by the Other Charterer or such Relevant Person;
|
(b) |
to claim any contribution from any third party providing security for, or any other guarantor of, the Other Charterer’s or such Relevant Person’s obligations
under the Pertinent Documents;
|
(c) |
to take any benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Other Charterer or such Relevant Person under
the Pertinent Documents or of any other guarantee or security taken pursuant to, or in connection with, the Pertinent Documents by any of the aforesaid parties;
|
(d) |
to bring legal or other proceedings for an order requiring any of the Other Charterer or such Relevant Person to make any payment, or perform any obligation,
in respect of any Pertinent Document;
|
(e) |
to exercise any right of set-off against any of the Other Charterer or such Relevant Person; and/or
|
(f) |
to claim or prove as a creditor of any of the Other Charterer or such Relevant Person,
|
52.5 |
The Charterers hereby irrevocably agree to indemnify and hold harmless the Owners against any claim, expense, liability or loss reasonably incurred by the
Owners in liquidating or employing deposits from their financiers or third parties to fund the acquisition of the Vessel pursuant to the MOA and the Contract.
|
52.6 |
Notwithstanding anything to the contrary herein (but subject and without prejudice to Clause 33 (
Cancellation
) ) and without prejudice to any right to damages or other claim which the Charterers may have at any time against the Owners under this Charter, the indemnities provided by the
Charterers in favour of the Owners shall continue in full force and effect notwithstanding any breach of the terms of this Charter or termination of this Charter pursuant to the terms hereof or termination of this Charter by the Owners.
|
52.7 |
The obligations of the Charterers under this Clause 52 and in respect of any Security Interest created pursuant to the Security Documents will not be affected
or discharged by an act, omission, matter or thing which would reduce, release or prejudice any of its obligations
|
(a) |
any time, waiver or consent granted to, or composition with, any Relevant Person or other person;
|
(b) |
the release of any other Relevant Person or any other person under the terms of any composition or arrangement with any creditor of a Relevant Person or any
of its affiliates;
|
(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 Relevant Person 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 Relevant Person or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Leasing Document or
any other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Security Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
53.1 |
All Charterhire, the Pre-delivery Upfront Charterhire, the Advance Charterhire, payment of the Final Purchase Option Price or Early Termination Price and any
other payment made from any Relevant Person to the Owners under a Leasing Document shall be paid punctually:
|
(a) |
without any form of set-off (except in the case of the Advance Charterhire, each Pre-delivery Upfront Charterhire, the Deposit Refund, the Final Purchase
Option Price and the Early Termination Price which shall be set off in accordance with Clause 36.2, Clause 36.3 and (in respect of the Final Purchase Option Price or the Early Termination Price) Clause 36.15respectively), cross-claim or
condition and in the case of Charterhire, the Pre-delivery Upfront Charterhire, Advance Charterhire, the Deposit, the Early Prepayment Sum or the Final Purchase Option Price, without previous demand unless expressly permitted under the
terms of the Leasing Documents or otherwise agreed with the Owners; and
|
(b) |
free and clear of any tax deduction or withholding unless required by law.
|
53.2 |
Without prejudice to Clause 53.1 (
No Set-off or Tax Deduction
),
if the Owners are required by law to make a tax deduction from any payment:
|
(a) |
the Owners shall notify the Charterers as soon as they become aware of the requirement; and
|
(b) |
the amount due in respect of the payment shall be increased by the amount necessary to ensure that the Owners receive and retain (free from any liability
relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which they would otherwise have received.
|
53.3 |
In this Clause “
tax deduction
” means any deduction or
withholding for or on account of any present or future tax, other than a FATCA Deduction.
|
54.1 |
This Clause 54 (
Increased Costs
) applies if the Owners
notify the Charterers that they (or their financiers) consider that as a result of:
|
(a) |
the introduction or alteration after the date of this Charter of a law or an alteration after the date of this Charter in the manner in which a law is
interpreted or applied (disregarding any effect which relates to the application to payments under this Charter of a tax on the Owners' overall net income); or
|
(b) |
complying with any regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Owners allocates
capital resources to their obligations under this Charter) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Charter,
|
54.2 |
In this Clause 54 (
Increased Costs
), “
increased cost
” means, in relation to the Owners and the Owners’ financiers:
|
(a) |
an additional or increased cost incurred as a result of, or in connection with, the Owners or the Owners’ parent company or the Owners’ financiers (if any)
having entered into, or being a party to, this Charter, of funding the acquisition of the Vessel pursuant to the MOA or performing their obligations under this Charter;
|
(b) |
a reduction in the amount of any payment to the Owners under this Charter or in the effective return which such a payment represents to the Owners or the
Owners’ parent company or the Owners’ financiers (if any) on their capital;
|
(c) |
a reduction in the amount of any payment to the Owners’ financiers (if any) under their financing arrangements and relevant Financial Instruments or in the
effective return which such a payment represents to the Owners’ financiers (if any) or on their capital;
|
(d) |
an additional or increased cost of funding the acquisition of the Vessel pursuant to the MOA; or
|
(e) |
a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Owners under this Charter,
|
54.3 |
Subject to the terms of Clause 54.1 (
Increased Costs
),
the Charterers shall pay to the Owners, upon the Owners' demand and production of reasonable evidence thereto, the amounts which the Owners from time to time notify the Charterers to be necessary to compensate the Owners for the
increased cost.
|
54.4 |
If any sum due from the Charterers to the Owners under this Charter or any other Pertinent Document or under any order or judgment relating thereto has to be
converted from the currency in which this Charter or such Pertinent Document provided for the sum to be paid (the “
Contractual Currency
”)
into another currency (the “
Payment Currency
”) for the purpose of:
|
(a) |
making or lodging any claim or proof against the Charterers, whether in their liquidation, any arrangement involving them or otherwise; or
|
(b) |
obtaining an order or judgment from any court or other tribunal; or
|
(c) |
enforcing any such order or judgment;
|
55.1 |
The Parties agree to keep the terms and conditions of this Charter and any other Leasing Documents (the “
Confidential Information
”) strictly confidential, provided that a Party may disclose Confidential Information in the following cases:
|
(a) |
it is already known to the public or becomes available to the public other than through the act or omission of the disclosing Party;
|
(b) |
it is required to be disclosed under the applicable laws of any Relevant Jurisdiction, Stock Market regulation, the US Securities and Exchange Commission’s
rules or by a governmental order, decree, regulation or rule (provided that the disclosing Party shall give written notice of such required disclosure to the other Party prior to the disclosure);
|
(c) |
in filings with a court or arbitral body in proceedings in which the Confidential Information is relevant and in discovery arising out of such proceedings;
|
(d) |
to (or through) whom a Party assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more
Pertinent Document (as permitted by the terms thereof), provided that such person receiving Confidential Information shall undertake that it would not disclose Confidential Information to any other party save for circumstances arising
which are similar to those described under this Clause or such other circumstances as may be permitted by all Parties;
|
(e) |
to any permitted subcharterer of the Vessel provided that such person receiving Confidential Information shall undertake that it would not disclose
Confidential Information to any other party save for circumstances arising which are similar to those described under this Clause or such other circumstances as may be permitted by all Parties;
|
(f) |
to any of the following persons on a need to know basis:
|
|
(i) |
a shareholder or an Affiliate of either Party or a party referred to in either paragraph (d) or (e) (including the employees, officers and directors thereof);
|
|
(ii) |
professional advisers retained by a disclosing party; or
|
|
(iii) |
persons advising on, providing or considering the provision of financing to the disclosing party or an Affiliate,
|
(g) |
with the prior written consent of all Parties.
|
58.1 |
Any settlement or discharge under any Leasing Document between the Owners and any Relevant Person shall be conditional upon no security or payment to the
Owners by any Relevant Person or any other person being set aside, adjusted or ordered to be repaid, whether under any insolvency law or otherwise.
|
58.2 |
If the Owners consider that an amount paid or discharged by, or on behalf of, a Relevant Person or by any other person in purported payment or discharge of an
obligation of that Relevant Person to the Owners under the Leasing Documents is capable of being avoided or otherwise set aside on the liquidation or administration of that Relevant Person or otherwise, then that amount shall not be
considered to have been unconditionally and irrevocably paid or discharged for the purposes of the Leasing Documents.
|
61.1 |
Defined terms.
For the purposes of Clause 53 (
No Set-off of Tax Deduction
) and this Clause 61 (
FATCA
), the following terms shall have the following meanings:
|
|
(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 IRS, the US government or
any governmental or taxation authority in any other jurisdiction.
|
61.2 |
FATCA Information.
|
(a) |
Subject to paragraph (c) below, each Relevant Party shall, on the date of this Charter, and thereafter within ten Business Days of a reasonable request by
another Relevant Party:
|
|
(i) |
confirm to that other party whether it is a FATCA Exempt Party or is not a FATCA Exempt Party; and
|
|
(ii) |
supply to the requesting party (with a copy to all other Relevant Parties) such other form or forms (including IRS Form W-8 or Form W-9 or any successor or
substitute form, as applicable) and any other documentation and other information relating to its status under FATCA (including its applicable “pass thru percentage” or other information required under FATCA or other official guidance
including intergovernmental agreements) as the requesting party reasonably requests for the purpose of the requesting party’s compliance with FATCA .
|
(b) |
If a Relevant Party confirms to any other Relevant Party that it is a FATCA Exempt Party or provides an IRS Form W-8 or W-9 showing 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, or that the said form provided has ceased to be correct or valid, that party shall so notify all other Relevant Parties or provide the
relevant revised form, as applicable, reasonably promptly.
|
(c) |
Nothing in this clause shall oblige any Relevant Party to do anything which would or, in its reasonable opinion, might constitute a breach of any law or
regulation, any policy of that party, any fiduciary duty or any duty of confidentiality, or to disclose any confidential information (including, without limitation, its tax returns and calculations); provided, however, that nothing in
this paragraph shall excuse any Relevant Party from providing a true, complete and correct IRS Form W-8 or W-9 (or any successor or substitute form where applicable). Any information provided on such IRS Form W-8 or W-9 (or any
successor or substitute forms) shall not be treated as confidential information of such party for purposes of this paragraph.
|
(d) |
If a Relevant Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with the provisions of this
Charter or the provided information is insufficient under FATCA, then:
|
|
(i) |
if that party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such party shall be treated for the purposes of this Charter and the
Pertinent Documents as if it is a FATCA Non-Exempt Party; and
|
|
(ii) |
if that party failed to confirm its applicable passthru percentage then such party shall be treated for the purposes of this Charter and the Pertinent
Documents (and payments made thereunder) as if its applicable passthru percentage is 100%,
|
61.3 |
FATCA Deduction and gross-up by Relevant Party
|
(a) |
If the representation made by the Charterers under Clause 44.1(p) (
Representations and Warranties
) proves to be untrue or misleading such that the Charterers are required to make a FATCA Deduction, the Charterers shall make the FATCA Deduction and any payment required in connection
with that FATCA Deduction within the time allowed and in the minimum amount required by FATCA.
|
(b) |
If the Charterers are required to make a FATCA Deduction then the Charterers shall increase the payment due from them to the Owners to an amount which (after
making any FATCA Deduction) leaves an amount equal to the payment which would have been due if no FATCA Deduction had been required.
|
(c) |
The Charterers shall promptly upon becoming aware that they must make a FATCA Deduction (or that there is any change in the rate or basis of a FATCA
Deduction) notify the Owners accordingly. Within thirty (30) days of the Charterers making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the Charterers shall deliver to the Owners evidence
satisfactory to the Owners that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the relevant governmental or taxation authority.
|
61.4 |
FATCA Deduction by Owners
|
61.5 |
FATCA Mitigation
|
62.1 |
The Charterers shall not assign this Charter except with the Owners’ prior consent in writing.
|
62.2 |
The Owners may assign any of their rights or transfer by novation any of their rights and obligations under the Leasing Documents to any of the Other Owners,
a financial institution, a trust, a fund, a leasing company or any other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans securities or other financial assets.
|
62.3 |
Without limiting the generality of Clause 62.2:
|
(a) |
the Owners are entitled to enter into certain funding arrangements with their financier(s), including but not limited to, an affiliate of the Owners or any
other banks and financial institutions acceptable to the Owners in their sole discretion (the "
Mortgagee
");
|
(b) |
the Owners may do any of the following as security for the funding arrangements referred to in paragraph (a) above:
|
|
(i) |
execute a ship mortgage over the Vessel or any other Financial Instrument in favour of a Mortgagee (or its agent, trustee or nominee);
|
|
(i) |
assign their rights and interests to, in or in connection with this Charter or any other Leasing Documents in favour of a Mortgagee (or its agent, trustee or
nominee);
|
|
(ii) |
assign their rights and interests to, in or in connection with the Insurances, the Earnings and the Requisition Compensation of the Vessel in favour of the
Mortgagee (or its agent, trustee or nominee); and
|
|
(ii) |
enter into any other document or arrangement which is necessary to give effect to such financing arrangements;
|
(c) |
the Charterers undertake to comply, and provide such information and documents required to enable the Owners to comply, with all such instructions or
directions in regard to the employment, insurances, operation, repairs and maintenance of the Vessel as laid down in any Financial Instrument or as may be directed from to time during the currency of this Charter by the Mortgagee (or
its agent, trustee or nominee) in conformity with any Financial Instrument. The Charterers further agree and acknowledge all relevant terms, conditions and provisions of each Financial Instrument (if any) and agree to acknowledge this
in writing in any form that may be required by the Mortgagee (or its agent, trustee or nominee) ; and
|
(d) |
during the Charter Period a change in the registered or beneficial ownership of the Vessel or the Owners (by sale of shares in the Owners or other
transactions having the same effect) may be effected without the Charterers’ consent, provided always that, in the event of change in the registered or beneficial ownership of the Vessel, notwithstanding such change, this Charter would
continue on identical terms (save for logical, consequential or mutually agreed amendments). The Guarantor and the Charterers shall (where applicable) remain jointly and severally liable to the aforesaid new owner of the Vessel for its
performance of all obligations pursuant to this Charter after change of the registered and/or beneficial ownership of the Vessel or the Owners from the Owners to such new owner and agree and undertake to enter into any such usual
documents as the Owners shall reasonably require to complete or perfect the transfer of the Vessel (with the benefit and burden of this Charter) pursuant to this Clause.
|
(e) |
All expenses arising out of assignment or transfer of this Charter as per Clause 62 shall be for the Owner’s account subject to no Termination Event or
Potential Termination Event having occurred or being continuing at the relevant time.
|
(a) |
This Charter and any non-contractual obligations arising under or in connection with it, shall be governed by and construed in accordance with English law.
|
(b) |
Any dispute arising out of or in connection with this Charter (including a dispute regarding the existence, validity or termination of this Charter or any
non-contractual obligation arising out of or in connection with this Charter) (a "
Dispute
")) shall be referred to and finally
resolved by arbitration in London in accordance with the Arbitration Act 1996 or any statutory
|
(c) |
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 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 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 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 he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
|
(d) |
Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated above.
|
(e) |
The language of the arbitration shall be English.
|
64.1 |
In this Charter, unless as expressly defined otherwise, the following capitalized terms shall have the meanings ascribed to them below:
|
|
(a) |
the Advance Charterhire;
|
|
(b) |
the Pre-delivery Upfront Charterhire;
|
|
(c) |
the Pre-delivery Charterhire; and
|
|
(d) |
the Quarter Charterhire.
|
|
(a) |
the Estimated Financing Amount; minus
|
|
(b) |
the Pre-delivery Instalment Balance at such time.
|
|
(a) |
the Indicative Amount applicable to that time;
|
|
(b) |
the amount of any outstanding Quarter Charterhire due and unpaid at such relevant time (or if such relevant time is not a Payment Date, due on the Payment
Date immediately preceding such relevant time but unpaid) and, if such relevant time is not a Payment Date, plus the amount of the Adjusted Quarter Charterhire;
|
|
(c) |
the amount of the applicable Early Termination Fee if the Early Termination Date under Clause 49 occurs prior to the fifth anniversary of the Delivery Date;
|
|
(d) |
if the Early Termination Price becomes payable under Clause 48.2 or, as the case may be, 48.3, the Early Termination Fee plus an amount equal to 2 per cent.
(2%) of the Indicative Amount applicable to that time;
|
|
(e) |
Breakfunding Costs;
|
|
(f) |
legal costs incurred as a result of the early termination of the Charter;
|
|
(g) |
any other amount payable under the terms of any Pertinent Document; and
|
|
(h) |
any other costs incurred by the Owners as a result of the early termination of the Charter including without limitation any costs as a result of the
termination of any financing by the Owners in connection with the Vessel,
|
|
(a) |
except to the extent that they fall within paragraph (b),
|
|
(i) |
all freight, hire and passage moneys;
|
|
(ii) |
compensation payable to the Charterers in the event of requisition of the Vessel for hire;
|
|
(iii) |
remuneration for salvage and towage services;
|
|
(iv) |
demurrage and detention moneys;
|
|
(v) |
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Vessel; and
|
|
(vi) |
all moneys which are at any time payable under any Insurances in respect of loss of hire (if any); and
|
|
(b) |
if and whenever the Vessel is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other persons, that
proportion of the net receipts of the relevant pooling or sharing arrangements which is attributable to the Vessel.
|
|
(a) |
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or which relates to any Environmental Law; or
|
|
(b) |
any claim by any other person which relates to an Environmental Incident,
|
|
(a) |
any release of Environmentally Sensitive Material from the Vessel;
|
|
(b) |
any incident in which Environmentally Sensitive Material is released from a vessel other than the Vessel and which involves a collision between the Vessel and
such other vessel or some other incident of navigation or operation, in either case, in connection with which the Vessel is actually liable to be arrested, attached, detained or injuncted and/or
|
|
(c) |
any other incident involving the Vessel in which Environmentally Sensitive Material is released otherwise than from the Vessel and in connection with which
the Vessel is actually arrested and/or where the Owners and/or the Charterers and/or any other operator or manager of the Vessel is at fault or otherwise liable to any legal or administrative action.
|
|
(a) |
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;
|
|
(b) |
under any loan stock, bond, note or other security issued by the debtor;
|
|
(c) |
under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
|
|
(d) |
under a financial lease, a deferred purchase consideration arrangement (other than deferred payments for assets or services obtained on normal commercial
terms in the ordinary course of business) or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;
|
|
(e) |
under any foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the
agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or
|
|
(f) |
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within paragraphs
(a) to (e) if the references to the debtor referred to the other person.
|
|
(a) |
if such Determination Date falls on a Reference Date, the Reference Amount corresponding to that Reference Date; or
|
|
(b) |
if such Determination Date does not fall on any Reference Date, the Reference Amount corresponding to the Reference Date following immediately before such
Determination Date,
|
|
(a) |
all policies and contracts of insurance, including entries of the Vessel in any protection and indemnity or war risks association, which are effected in
respect of the Vessel or otherwise in relation to it whether before, on or after the date of this Charter; and
|
|
(b) |
all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any
claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Charter.
|
|
(a) |
in relation to the Vessel or any other Fleet Vessel at any relevant time, the market value of the Vessel as determined by a valuation prepared:
|
|
i. |
on a date no earlier than fifteen (15) days previously (provided that the requirement in this paragraph (a) is not applicable when determining the Market
Value of the Vessel and the Fleet Vessel pursuant to Clause 45.1(v));
|
|
ii. |
with or without physical inspection of that Vessel;
|
|
iii. |
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
existing charter or other contract of employment,
|
|
(b) |
in relation to the Vessel at a Market Value Test Date where the Market Value of the Vessel is to be determined pursuant to Clause 45.1(n), the market value of
the Vessel as determined by a valuation prepared:
|
|
i. |
on a date no earlier than five (5) days prior to that Market Value Test Date;
|
|
ii. |
with or without physical inspection of that Vessel;
|
|
iii. |
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
existing charter or other contract of employment,
|
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any Relevant Person or the Guarantor and its Subsidiaries as a whole;
|
|
(b) |
the ability of any Relevant Person to perform its obligations under any Pertinent Document to which it is a party; or
|
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security Interests granted pursuant to any of the Pertinent Documents or the rights
or remedies of the Owners under any of the Pertinent Documents.
|
|
(a) |
Security Interests created by a Pertinent Document or a Financial Instrument;
|
|
(b) |
other Security Interests arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of the Vessel in respect of
obligations which are not overdue or in respect of which the Charterers are contesting the claim giving rise to such lien in good faith by appropriate steps and for the payment of which adequate reserves have been made in case the
Charterers finally have to pay such claim so long as any such proceedings shall not, and may reasonably be considered unlikely to, lead to the arrest, sale, forfeiture or loss of the Vessel or any interest in the Vessel; and
|
|
(c) |
other Security Interests permitted by the Owners in writing.
|
|
(a) |
the Pre-delivery Instalment Balance (as of the Relevant Date);
|
|
(b) |
all sums which (as of the Relevant Date) are owed by the Charterers as sellers under the MOA;
|
|
(c) |
the amount of outstanding Pre-delivery Charterhire accrued and being unpaid as at the Relevant Date;
|
|
(d) |
three per cent (3%) of the Pre-delivery Instalment Balance (as of the Relevant Date);
|
|
(e) |
Breakfunding Costs;
|
|
(f) |
any costs or losses incurred with respect to unwinding of swaps entered into by the Owners or its financiers in connection with or under this Charter or any
Financial Instrument;
|
|
(g) |
legal costs incurred as a result of the early termination of the Charter;
|
|
(h) |
any other amount payable under the terms of any Pertinent Document; and
|
|
(i) |
any other costs incurred by the Owners as a result of the termination of the Charter and/or the termination and/or cancellation of the MOA including without
limitation any costs as a result of the termination and/or cancellation of any financing by the Owners in connection with the Vessel,
|
|
(a) |
in relation to each of the first twelve Quarter Charterhire instalments payable during the Charter Period and each of the first twelve relevant Payment Dates
during the Charter Period, an amount equal to $1,492,951; and
|
|
(b) |
in relation to each of the remaining Quarter Charterhire instalments and the remaining relevant Payment Dates during the Charter Period, an amount equal to
$1,213,362 ,
|
|
(a) |
its Original Jurisdiction;
|
|
(b) |
any jurisdiction where any property owned by it and charged under a Pertinent Document is situated;
|
|
(c) |
any jurisdiction where it conducts its business; and
|
|
(d) |
any jurisdiction whose laws govern the perfection of any of the Pertinent Documents entered into by it creating a Security Interest.
|
|
(a) |
imposed by law or regulation of a Sanctions Authority, to the extent applicable to this transaction; or
|
|
(b) |
otherwise imposed by any applicable law or regulation by which any Relevant Person is bound or to which it is subject.
|
|
(a) |
the Security Council of the United Nations;
|
|
(b) |
the United States;
|
|
(c) |
the European Union;
|
|
(d) |
the United Kingdom;
|
|
(e) |
the People’s Republic of China (including for the avoidance of doubt, Hong Kong), provided that this paragraph (e) shall not apply to the BP Charterer when
the Vessel is chartered under the BP Charter or the operation or use of the Vessel by the BP Charterer (but not any further sub-lessee of the Vessel) when the Vessel is operated by the BP Charterer (but not any further sub-lessee of the
Vessel), in each case unless otherwise specified in Clause 48A.3; and
|
|
(f) |
the governments and official institutions or agencies of any of paragraphs (a) to (e) above, including the U.S. Department of the Treasury’s Office of Foreign
Assets Control, the United States Department of State, the U.S. Department of Commerce and the Hong Kong Monetary Authority and Her Majesty's Treasury.
|
|
(a) |
a mortgage, charge (whether fixed or floating) or pledge, lien, assignment, hypothecation or any other security interest of any kind or any other agreement or
arrangement having the effect of conferring a security interest;
|
|
(b) |
the security rights of a plaintiff under an action
in rem
;
or
|
|
(c) |
any other right which confers on a creditor or potential creditor a right or privilege to receive the amount actually or contingently due to it ahead of the
general unsecured creditors of the debtor concerned; however this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution.
|
|
(a) |
in relation to the Pre-delivery Charterhire, the first Term shall commence on the date of payment of the First Instalment by the Buyers under clause 19 (
payment of purchase price by buyer
) of the MOA and the last shall end on the Delivery Date or, if any, the date on which the
Pre-delivery Termination Sum is fully paid to the Owners in accordance with this Charter;
|
|
(b) |
in relation to the Quarter Charterhire, the first Term shall commence on the Delivery Date;
|
|
(c) |
each subsequent Term shall commence on the last day of the preceding Term;
|
|
(d) |
any Term which would otherwise end on a non-Business Day shall instead end on the next following Business Day or, if that Business Day is in another calendar
month, on the immediately preceding Business Day;
|
|
(e) |
if any Term commences on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month three
(3) months thereafter, as the case may be, that Term shall, subject to sub-paragraphs (d), (f)
and (g) of this definition, end on the last Business Day
of such later calendar month;
|
|
(f) |
any Term which would otherwise overrun a Payment Date shall instead end on that Payment Date; and
|
|
(g) |
subject to paragraph (a), any Term which would otherwise extend beyond the Pre-delivery Period or, as the case may be, the Charter Period shall instead end on
the last day of the Pre-delivery Period or, as the case may be, the Expiry Date.
|
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of the Vessel;
|
|
(b) |
any expropriation, confiscation, requisition or acquisition of the Vessel, whether for full 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 one (1) year without any right to an extension) unless it is redelivered within twenty-one (21) days to the full control of the Owners or the Charterers; or
|
|
(c) |
any arrest, capture, seizure or detention of the Vessel (including any hijacking or theft but excluding any event specified in paragraph (b) of this
definition) unless it is redelivered within thirty (30) days to the full control of the Owners or the Charterers.
|
|
(a) |
in the case of an actual loss of the Vessel, the date on which it occurred;
|
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Vessel, the earlier of:
|
|
(i) |
the date on which a notice of abandonment is given to the insurers;
|
|
(ii) |
the date when the Vessel was last heard of; and
|
|
(iii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Charterers with the Vessel's insurers in which the insurers agree to treat
the Vessel as a Total Loss; and
|
|
(c) |
in the case of any expropriation, confiscation, requisition or acquisition of the Vessel whether for full 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 one (1) year without any right to an extension, on the date on which the expropriation, confiscation, requisition or, as the case may be, the acquisition of the Vessel is completed
by delivery of the Vessel to the relevant government or official authority or the person or persons claiming to be or to represent the relevant government or official authority unless it is redelivered within twenty-one (21) days to the
full control of the Owners or the Charterers; and
|
|
(d) |
in the case of any arrest, condemnation, capture, seizure or detention of the Vessel (including any hijacking or theft), unless it is redelivered within
thirty (30) days to the full control of the Owners or the Charterers, the date falling on the expiration of such days.
|
64.2 |
Construction
. Unless a contrary indication appears, in
this Charter:
|
|
(a) |
an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalization; and
|
|
(b) |
in relation to anything which will be prohibited or restricted by law if a governmental or official authority intervenes or acts in any way within a specified
period after lodgment, filing, registration or notification, the expiry of that period without intervention or action.
|
|
(a) |
cast, or control the casting of, more than 51 per cent, of the maximum number of votes that might be cast at a general meeting of such company;
|
|
(b) |
appoint or remove all, or the majority, of the directors or other equivalent officers of such company; or
|
|
(c) |
give directions with respect to the operating and financial policies of such company with which the directors or other equivalent officers of such company are
obliged to comply;
|
|
(a) |
on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business
Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or
|
|
(b) |
on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of
the period has no numerically corresponding day;
|
|
(a) |
references to a Pertinent Document or any other document being in the form of a particular appendix or to any document referred to in the recitals include
references to that form with any modifications to that form which the Owners approve;
|
|
(b) |
references to, or to a provision of, a Pertinent Document or any other document are references to it as amended or supplemented, whether before the date of
this Charter or otherwise;
|
|
(c) |
references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Charter or
otherwise; and
|
|
(d) |
words denoting the singular number shall include the plural and vice versa.
|
64.5 |
Construction of Insurance terms
. In this Charter:
|
64.6 |
Headings.
In interpreting a Pertinent Document or any
provision of a Pertinent Document, all clauses, sub-clauses and other headings in that and any other Pertinent Document shall be entirely disregarded.
|
Name:
|
||
Title:
|
||
for and on behalf of
|
||
SOUTH CALIFORNIA INC.
|
||
Dated:
|
1 |
Corporate Authorisations/Confirmation
|
1.1 |
A certificate of an authorized signatory of each Relevant Person (other than the Refund Guarantor, the BP Charterer, the Builder and each Approved Manager)
certifying that each copy document provided under paragraph 1 of Part A of Schedule 1 (
Conditions Precedent to Signing
) of the MOA
remains correct, complete and in full force and effect as on the Delivery Date.
|
1.2 |
A certificate of an authorized signatory of the Charterers certifying that there is no Potential Termination Event or Termination Event has occurred and is
continuing as of the Delivery Date.
|
2 |
Pertinent Documents
|
2.1 |
Duly executed and dated copies of the General Assignment, the Quiet Enjoyment Agreement and each Manager’s Undertaking and of each document to be delivered
under it and evidence of their delivery within the timing prescribed under it.
|
2.2 |
Documentary evidence that the Security Interests intended to be created by each of the Security Documents have been duly perfected under applicable law or
will be perfected under applicable law within the prescribed period contained in such Security Documents.
|
3 |
Vessel certificates
|
3.1 |
A copy of the Vessel’s class certificate evidencing that the Vessel maintains its classification as set out in Article I of the Contract with the Approved
Classification Society free of all recommendations and conditions.
|
3.2 |
Copies of the Vessel’s Safety Management Certificate (together with any other details of the applicable Safety Management System which the Owners require) and
of any other documents required under the ISM Code and the ISPS Code (including without limitation an ISSC and IAPPC).
|
3.3 |
A copy of the valid and current Safety Management Certificate under the ISM Code in respect of the Vessel.
|
3.4 |
A copy of the valid and current International Ship Security Certificate (ISSC) in respect of the Vessel.
|
3.5 |
A copy of the valid and current International Air Pollution Prevention (IAPPC) Certificate in respect of the Vessel issued under Annex VI (Regulations for the
Prevention of Air Pollution from Ships) to MARPOL.
|
3.6 |
A copy of any other certificate mandatorily required by the International Maritime Organisation or the Approved Classification Society.
|
3.7 |
A copy of the tonnage certificate of the Vessel.
|
3.8 |
Safety construction, safety equipment, safety radio and load line certificates in respect of the Vessel.
|
3.9 |
Any other document required to be delivered by the Builder to the Buyers under the terms of the Contract (including the documents to be delivered by the
Builder as set out under Article VII paragraph 3 of the Contract).
|
3.10 |
Documentary evidence that the Vessel has been delivered by the Builder to the Charterers pursuant to the terms of the Contract, where such documents shall
include, in particular:
|
(a) |
the original notarized and if required, legalised copies of the bill of sale and builder’s certificate duly executed by the Builder (and where executed by an
attorney of the Builder, together with such original notarized Builder’s power of attorney); and
|
(b) |
the original protocol of delivery and acceptance duly executed by the Builder and the Charterers.
|
4 |
Delivery and title registration of the Vessel
|
4.1 |
Documentary evidence that the Vessel:
|
(a) |
will simultaneously upon Delivery definitively and permanently registered in the name of the Owners under the flag of the Buyers’ Nominated Flag State; and
|
(b) |
will simultaneously upon Delivery in the absolute and unencumbered ownership of the Owners.
|
4.2 |
The commercial invoice of the Vessel.
|
2 |
Legal opinions
|
2.1 |
A signed legal opinion of Watson Farley & Williams, legal advisers to the Owners on such matters on the laws of England as may be satisfactory to the
Owners.
|
2.2 |
Signed legal opinions by lawyers appointed by the Owners on such matters on the laws of the Marshall Islands and the Netherlands and any other jurisdictions
as may be satisfactory to the Owners.
|
3 |
Others
|
3.1 |
The Owners being satisfied that all conditions precedent or documents or evidence specified in Schedule 1 to the MOA have been satisfied or provided in form
and substance satisfactory to the Owners.
|
1. |
Subject to the provisions of this Schedule 3, the rate applied on the Pre-delivery Instalment Balance for the purpose of computing the relevant Pre-delivery
Interest Charterhire (such rate, the “
Rate
”) in respect of a Term shall be LIBOR for a three (3) months period ending on the last day
of such Term plus the Margin.
|
2. |
The Owners shall notify the Charterers of each such Rate in respect of a Term as soon as reasonably practicable after such Rate is determined by the Owners
but not later than 2 Business Days prior to the relevant Payment Date.
|
3. |
If, in relation to any Term:
|
|
(i) |
no screen rate is available for the LIBOR determination and the Reference Banks (or if at any time there is only one Reference Bank) do not provide quotations
to the Owners in order to fix LIBOR; and
|
|
(ii) |
the Owners determine (which determination shall be conclusive and binding) that by reason of circumstances affecting the London interbank market generally,
adequate and fair means do not or will not exist for ascertaining LIBOR at the beginning of that Term or the same does not reflect the cost of funding of the Owners; or
|
|
(iii) |
the Owners determine (which determination shall be conclusive and binding) that by reason of circumstances affecting the London interbank market generally,
deposits in Dollars in the required amount for the 3-month period commencing on the first day of that Term are not available to it in the London interbank market or from whatever sources it may select to obtain funds for that Term,
|
4. |
Immediately following the notification referred to in paragraph 3 above, the Owners and the Charterers, shall negotiate in good faith with a view to agreeing
upon a substitute basis for funding the Pre-delivery Instalment Balance and determining the applicable Rate for that Term, within thirty (30) days after the Owners serve the notice to the Charterers.
|
5. |
If a substitute basis is not so agreed pursuant to paragraph 4 above, the Charterers shall pay the Owners an amount computed at the rate per annum equal to
the cost certified to the Owners ((expressed as an annual rate) of funding the Pre-delivery Instalment Balance during that relevant Term (as conclusively determined by the Owners and which shall be binding on the Charterers)) on the
Pre-delivery Instalment Balance from time to time for the relevant Term.
|
6. |
Interest shall accrue from day to day, shall be calculated on the basis of the actual number of days elapsed and a 360 day year, including the first day of
the period during which it accrues but excluding the last day.
|
Payment Date
|
Indicative Amount ($)
|
1st
|
$45,558,177.73
|
2nd
|
$44,830,173.73
|
3rd
|
$44,089,946.14
|
4th
|
$43,337,289.71
|
5th
|
$42,571,995.77
|
6th
|
$41,793,852.12
|
7th
|
$41,002,643.01
|
8th
|
$40,198,149.06
|
9th
|
$39,380,147.21
|
10th
|
$38,548,410.65
|
11th
|
$37,702,708.78
|
12th
|
$36,842,807.11
|
13th
|
$36,248,056.22
|
14th
|
$35,643,319.12
|
15th
|
$35,028,428.16
|
16th
|
$34,403,212.84
|
17th
|
$33,767,499.81
|
18th
|
$33,121,112.80
|
19th
|
$32,463,872.60
|
20th
|
$31,795,596.97
|
21st
|
$31,116,100.63
|
22nd
|
$30,425,195.16
|
23rd
|
$29,722,689.01
|
24th
|
$29,008,387.40
|
25th
|
$28,282,092.26
|
26th
|
$27,543,602.23
|
27th
|
$26,792,712.54
|
28th
|
$26,029,215.00
|
OWNERS
|
||
SIGNED
|
)
|
|
by Zhou Ling
|
)
|
|
SEA 104 LEASING CO. LIMITED
|
)
|
/s/ Zhou Ling
|
for and on behalf of
|
)
|
|
)
|
||
in the presence of:
|
)
|
|
Witness’ signature: /s/ Wang Wei
|
)
|
|
Witness’ name: Wang Wei
|
)
|
|
Witness’ address:
22F, China Merchants Bank Building, NO.1088
Lujiazui Ring Road, Shanghai, China
|
)
|
|
CHARTERERS
|
||
SIGNED
|
)
|
|
by Andreas Louka
|
)
|
|
MALIBU WARRIOR INC.
|
)
|
/s/ Andreas Louka
|
for and on behalf of
|
)
|
|
)
|
||
in the presence of:
|
)
|
|
Witness’ signature: /s/ Alexandros Tsirikos
|
)
|
|
Witness’ name: Alexandros Tsirikos
|
)
|
|
Witness’ address:
12 N. Parizsi St., 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
|
7
|
12
|
JUDGMENTS AND CURRENCY INDEMNITY
|
12
|
13
|
SUPPLEMENTAL
|
12
|
14
|
ASSIGNMENT
|
14
|
15
|
NOTICES
|
14
|
16
|
INVALIDITY OF BAREBOAT CHARTER
|
14
|
17
|
GOVERNING LAW AND ENFORCEMENT
|
15
|
SCHEDULE 1
|
16
|
|
FORM OF COMPLIANCE CERTIFICATE
|
16
|
|
EXECUTION PAGE
|
17
|
(1) |
TOP SHIPS INC.
, a corporation incorporated under the
laws of Marshall Islands whose
registered
office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro,
Marshall Islands, MH96960 (the “
Guarantor
”); and
|
(2) |
SEA 104 LEASING CO., LIMITED
, a company incorporated
under the laws of Hong Kong whose registered office is at 46
th
Floor, Champion Tower, 3 Garden Road, Central (the “
Owner
”
which expression includes its successors and assigns).
|
(A) |
By a bareboat
charter
dated
3
December
2018 (the “
Bareboat Charter
”)
and made between (i) the Owner, as owner and (ii)
Malibu Warrior Inc.
, a corporation incorporated under the laws of Marshall Islands
whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960, as charterer (the “
Charterer
”),
the Owner has agreed to bareboat charter the crude oil carrier with Builder hull no. S875 (the “
Vessel
”) to the Charterer pursuant to
the terms and conditions contained therein.
|
(B) |
The Guarantor is a shareholder of the Charterer and holds 100 per cent. of all of the issued shares in the Charterer.
|
(C) |
The execution and delivery to the Owner of this Guarantee is one of the conditions to the chartering of the Vessel under the Bareboat Charter.
|
(D) |
This Guarantee is the Guarantee referred to in the Bareboat Charter.
|
1 |
INTERPRETATION
|
1.1 |
Defined expressions.
Words and expressions defined in
the Bareboat Charter shall have the same meanings when used in this Guarantee unless the context otherwise requires.
|
1.2 |
Construction of certain terms
. In this Guarantee:
|
2 |
GUARANTEE
|
2.1 |
Guarantee and indemnity
. The Guarantor unconditionally
and irrevocably:
|
(a) |
guarantees the due payment of all amounts payable by each other Relevant Person under or in connection to each Leasing Document to which such Relevant Person
is a party;
|
(b) |
undertakes to pay to the Owner on the Owner’s demand any such amount which is not paid by that Relevant Person when due and payable under or in connection to
that Leasing Document;
|
(c) |
guarantees the punctual performance by that Relevant Person of all that Relevant Person’s obligations under or in connection with that Leasing Document; and
|
(d) |
fully indemnifies the Owner on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by the
Owner 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 Owner would otherwise have been entitled to recover.
|
2.2 |
No limit on number of demands.
The Owner may serve
more than one demand under Clause 2.1.
|
2.3 |
Guarantee of whole amount.
This Guarantee shall be
construed and take effect as a guarantee of all amounts due to the Owner under the Leasing Documents to which each other Relevant Person is a party.
|
3 |
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
|
3.1 |
Principal and independent debtor.
The Guarantor shall
be liable under this Guarantee as a principal and independent debtor and accordingly it shall not have, as regards this Guarantee, any of the rights or defences of a surety.
|
3.2 |
Waiver of rights and defences.
Without limiting the
generality of Clause 3.1, the Guarantor shall neither be discharged by, nor have any claim against the Owner in respect of:
|
(a) |
any amendment or supplement being made to the Bareboat Charter or any other Leasing Document;
|
(b) |
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, the Bareboat Charter or any other
Leasing Document;
|
(c) |
any release or loss (even though negligent) of any right or Security Interest created by any Leasing Document;
|
(d) |
any failure (even though negligent) promptly or properly to exercise or enforce any such right or Security Interest, including a failure to realise for its
full market value an asset covered by such a Security Interest; or
|
(e) |
the Bareboat Charter or any other Leasing Document 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
. The
Guarantor shall pay to the Owner on its demand the amount of all expenses (including, without limitation, legal fees) incurred by the Owner in connection with the enforcement of, or the preservation of any rights under this Guarantee or
any other Leasing Document, including any advice, claim or proceedings relating to such matters.
|
4.2 |
Fees and expenses payable under Leasing Documents
.
Clause 4.1 is without prejudice to the Guarantor’s liabilities in respect of any other Relevant Person’s obligations under any Leasing Document to which it is a party.
|
5 |
ADJUSTMENT OF TRANSACTIONS
|
5.1 |
Reinstatement of obligation to pay
. The Guarantor shall
pay to the Owner on its demand any amount which the Owner is required, or agrees, to pay pursuant to any claim by, or settlement with, a trustee in bankruptcy of any other Relevant Person on the ground that any Leasing Document to which
that Relevant Person is a party, or a payment by that Relevant Person, was invalid or unenforceable or on any similar ground.
|
6 |
PAYMENTS
|
6.1 |
Method of payments
. Any amount due under this Guarantee
shall be paid:
|
(a) |
in immediately available funds;
|
(b) |
to such account as the Owner 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 or withholding for or on account of any tax payable under any law of relevant jurisdictions except a tax deduction which
the Guarantor is required by law to make.
|
6.2 |
Grossing-up for taxes
. If the Guarantor is required by
law to make a tax deduction, the amount due to the Owner shall be increased by the amount necessary to ensure that the Owner receives and retains a net amount which, after the tax deduction, is equal to the full amount that it would
otherwise have received.
|
6.3 |
Indemnity and evidence of payment of taxes
. The
Guarantor shall fully indemnity the Owner on the Owner’s demand in respect of all claims, expenses, liabilities and losses incurred by the Owner by reason of any failure of the Guarantor to make any tax deduction or by reason of any
increased payment not being made on the due date for such payment in accordance with Clause 6.2. Within 30 days after making tax deduction, that Guarantor shall deliver to the Owner any receipts, certificates or other documentary
evidence satisfactory to the Owner that the tax had been paid to the appropriate taxation authority.
|
7 |
INTEREST
|
7.1 |
Accrual of interest
. Any amount due under this
Guarantee shall carry interest after the date on which the Owner demands payment of it until it is actually paid, unless interest on that same amount also accrues under the Bareboat Charter.
|
7.2 |
Calculation of interest.
Interest under this Guarantee
shall be calculated and accrue (as well after as before judgment) at the rate described in Clause 36.12 of the Bareboat Charter and otherwise in accordance with the terms thereof.
|
8 |
SUBORDINATION
|
8.1 |
Subordination of rights of Guarantor.
All rights which
the Guarantor at any time has (whether in respect of this Guarantee or any other transaction) against each other Relevant Person or its assets shall be fully subordinated to the rights of the Owner under the Leasing Documents (or any of
them), and in particular, the Guarantor shall not:
|
(a) |
claim, or in a bankruptcy of that Relevant Person prove for, any amount payable to the Guarantor by that Relevant Person, whether in respect of this Guarantee
or any other transaction;
|
(b) |
take or enforce any Security Interest for any such amount;
|
(c) |
claim to set-off any such amount against any amount payable by the Guarantor to that Relevant Person; or
|
(d) |
claim any subrogation or other right in respect of any Leasing Document or any sum received or recovered by the Owner under such Leasing Document.
|
9 |
ENFORCEMENT
|
9.1 |
No requirement to commence proceedings against other Relevant
Person.
The Owner will not need to commence any proceedings under, or enforce any Security Interest created by, the Bareboat Charter or any other Leasing Document before claiming or commencing proceedings under this Guarantee.
|
9.2 |
Conclusive evidence of certain matters
. However, as
against the Guarantor:
|
(a) |
any final and unappealable judgment or order of a court in England or any Relevant Jurisdiction or award of an arbitration tribunal in London in connection
with the Bareboat Charter or any other Leasing Document; and
|
(b) |
any statement or admission of any other Relevant Person in connection with the Bareboat Charter or any other Leasing Document,
|
10 |
REPRESENTATIONS AND WARRANTIES
|
10.1 |
General.
The Guarantor represents and warrants to the
Owner and the Other Owners as of the date of this Guarantee, and on each day henceforth until the last day of the Security Period as follows.
|
10.2 |
Status
.
|
(a) |
The Guarantor is duly incorporated and validly existing and in good standing under the laws of Marshall Islands.
|
(b) |
The Guarantor is not a FATCA FFI or a US Tax Obligor.
|
10.3 |
Corporate power.
The Guarantor has the corporate
capacity, and has taken all corporate action and obtained all consents necessary for it:
|
(a) |
to execute this Guarantee or any other Leasing Document to which it is a party; and
|
(b) |
to make all the payments contemplated by, and to comply with, this Guarantee or any other Leasing Document to which it is a party.
|
10.4 |
Consents in force.
All the capacities, actions and
consents referred to in Clause 10.3 remain in full force and nothing has occurred which makes any of them liable to revocation.
|
10.5 |
No conflicts.
The execution by the Guarantor of the
Leasing Documents to which it is a party and its compliance with this Guarantee will not involve or lead to a contravention of:
|
(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.
|
10.6 |
Legal, valid and binding obligations.
This Guarantee
and the Leasing Document to which it is a party do now or will upon execution and delivery constitute the Guarantor’s legal, valid and binding obligations enforceable against it in accordance with its terms and any relevant insolvency
laws affecting creditors’ rights generally.
|
10.7 |
Governing law.
The choice of governing law as stated
in this Guarantee and the agreement by the Guarantor to refer disputes to the relevant courts or tribunals as stated herein are valid and binding against the Guarantor.
|
10.8 |
Immunity.
Neither the Guarantor nor any of its assets
are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement).
|
10.9 |
Pari passu
ranking.
The obligations of the Guarantor under this Guarantee, are the direct, general and unconditional obligations of the Guarantor and rank at least
pari passu
with all other present and future unsecured and unsubordinated creditors of the Guarantor save for any obligation which is
mandatorily preferred by law and not by virtue of any contract.
|
10.10 |
Legal or administrative action.
No legal or
administrative action involving the Guarantor has been commenced or taken which would have required notification to the Owner under Clause 11.8.
|
10.11 |
No insolvency.
The Guarantor is not 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 the
Guarantor or all or material part of their assets.
|
10.12 |
Tax obligor and place of business
. The Guarantor is not
a US Tax Obligor, and has not established a place of business in the United Kingdom or the United States of America.
|
10.13 |
No withholding taxes.
All payments which the Guarantor
is liable to make under the Leasing Documents to which it is a party may be made without deduction or withholding for or on account of any tax payable under any law of relevant jurisdictions.
|
10.14 |
Taxes paid.
The Guarantor has paid all taxes
applicable to, or imposed on or in relation to it, its business or except for those being contested in good faith with adequate reserves.
|
10.15 |
No default.
No Termination Event or Potential
Termination Event has occurred nor is continuing or might reasonably be expected to result from the entry into and performance of this Guarantee or any other Leasing Document.
|
10.16 |
Information.
Any factual information provided by the
Guarantor (or on its behalf) to the Owner was true and accurate in all material respects as at the date it was provided or as the date at which such information was stated; all accounts (audited and unaudited) delivered under Clause
11.3 satisfied the requirements of Clause 11.4; and there has been no Material Adverse Effect on the Guarantor from its position disclosed in the latest of those accounts.
|
10.17 |
No litigation.
No legal or administrative action
involving the Guarantor has been commenced or taken or, to the Guarantor’s knowledge, is likely to be commenced or taken which, in either case, would be likely to have a Material Adverse Effect on the Guarantor.
|
10.18 |
Sanctions.
|
(a) |
No Relevant Person, nor any of their respective directors, officers, or employees, is a Restricted Person.
|
(b) |
Each Relevant Person, and their respective directors, officers, and employees is in compliance with all Sanctions laws, and none of them have been or are
currently being investigated on compliance with Sanctions, they have not received notice or are aware of any claim, action, suit or proceeding against any of them with respect to Sanctions and they have not taken any action to evade the
application of Sanctions.
|
(c) |
No Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) is in breach of any Anti-Money Laundering Laws, Anti-Terrorism
Financing Laws and/or Business Ethics Laws and, to the extent required by applicable law, has instituted and maintained systems, controls, policies and procedures designed to:
|
|
(i) |
prevent and detect incidences of bribery and corruption, money laundering and terrorism financing; and
|
|
(ii) |
promote and achieve compliance with Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws including, but not limited to, ensuring
thorough and accurate books and records, and utilization of best efforts to ensure that Affiliates acting on behalf of a Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) shall act in compliance with
Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws.
|
10.19 |
Environmental Laws.
All Environmental Laws relating to
the ownership, operation and management of the Vessel and the business of each Relevant Person (as now conducted and as reasonably anticipated to be conducted in the future) have been complied with.
|
10.20 |
Environmental Claim.
No Environmental Claim has been
made or threatened against any Relevant Person or otherwise in connection with the Vessel.
|
10.21 |
Environmental Incident.
No Environmental Incident has
occurred and no person has claimed that an Environmental Incident has occurred.
|
10.22 |
Ownership of the Charterer.
The Charterer is legally
and beneficially and indirectly wholly owned and controlled by the Guarantor.
|
10.23 |
Ownership of the Guarantor.
The Guarantor is listed on
the NASDAQ Composite and its shares are trading in accordance with all applicable laws and regulations. There is no change in the controlling shareholder of the Guarantor from the date of this Guarantee.
|
11 |
UNDERTAKINGS
|
11.1 |
General
. The Guarantor undertakes with the Owner to
comply with the following provisions of this Clause 11 at all times during the Security Period, except as the Owner may otherwise permit.
|
11.2 |
Information provided to be accurate
. All financial and
other information which is provided by or on behalf of the Guarantor under or in connection with the Leasing Documents will be true and not misleading and will not omit any material fact or consideration.
|
11.3 |
Provision of financial statements
. The Guarantor will
send to the Owner:
|
(a) |
as soon as possible, but in no event later than one hundred and twenty (120) days after the end of each financial year of the Charterers, the audited annual
financial statement accounts of the Charterers for that financial year as referred to in the Guarantor’s audited consolidated annual financial statement accounts of the Guarantor for that financial year to be delivered under Clause
11.3(c);
|
(b) |
as soon as possible, but in no event later than ninety (90) days after the end of each half-year, the unaudited semi-annual accounts of the Charterers for
that half-year;
|
(c) |
as soon as possible, but in no event later than one hundred and twenty (120) days after the end of each financial year of the Guarantor, the audited
consolidated annual financial statement accounts of the Guarantor for that financial year; and
|
(d) |
as soon as possible, but in no event later than ninety (90) days after the end of each half-year, the semi-annual consolidated unaudited accounts of the
Guarantor for that half-year certified as to their correctness by at least one director of the Guarantor.
|
11.4 |
Form of financial statements
. All accounts (audited and
unaudited) delivered under Clause 11.3 will:
|
(a) |
be prepared in accordance with all applicable laws and generally accepted accounting principles in the United Stated consistently applied;
|
(b) |
give a true and fair view of (in respect of the audited accounts) or fairly representing (in the case of the management accounts) the state of affairs of the
Group at the date of those accounts and of their profit for the period to which those accounts relate;
|
(c) |
fully disclose or provide for all significant liabilities of the Group; and
|
(d) |
If not in the English language, be accompanied by an English translation duly certified as to its correctness.
|
11.5 |
Shareholder and creditor notices
. The Guarantor will
send the Owner, upon its request, copies of all communications which are despatched to the Guarantor’s shareholders or creditors or any class of them.
|
11.6 |
Consents
. The Guarantor will obtain and promptly renew
and will procure that each other Relevant Person obtains and promptly renews or procure the obtainment or renewal of and provide copies of, from time to time, any necessary consents, approvals, authorisations, licenses or permits of any
regulatory body or authority for the transactions contemplated under each Leasing Document to which it is a party.
|
11.7 |
Valid obligations
. The Guarantor will at its own cost,
and will procure that each other Relevant Person will:
|
(a) |
do all that such Relevant Person reasonably can to ensure that any Leasing Document to which such Relevant Person is a party validly creates the obligations
and the Security Interests which such Relevant Person purports to create; and
|
(b) |
without limiting the generality of paragraph (a), promptly register, file, record or enrol any Leasing Document to which such Relevant Person is a party with
any court or authority in all Relevant Jurisdictions, pay any stamp duty, registration or similar tax in all Relevant Jurisdictions in respect of any Leasing Document to which such Relevant Person is a party, give any notice or take any
other step which, is or has become necessary or desirable for any such Leasing Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which such Relevant Person creates.
|
11.8 |
Notification of legal or administrative action.
The
Guarantor will provide or will procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) provides the Owner with details of any legal or administrative action involving such Relevant
Person (other than the BP Charterer, the Builder and the Refund Guarantor) or the Vessel that is likely to have a Material Adverse Effect as soon as such action is instituted or it becomes apparent is likely to be instituted and is
likely to have a Material Adverse Effect.
|
11.9 |
Notification of damage or default.
The Guarantor
:
|
(a) |
will, and will procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, notify the Owner immediately
of the occurrence of any damage and/or alteration caused to the Vessel by any reason whatsoever which results, or may be expected to result, in repairs on the Vessel which exceed $1,000,000; and
|
(b) |
will, and will procure that each other Relevant Person will, notify the Owner immediately of the occurrence of any Termination Event,
|
11.10 |
Additional information.
The Guarantor will, and will
procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, as soon as practicable after receiving the request, provide the Owner with any additional financial or other information
relating:
|
(a) |
to themselves and/or the Vessel (including, but not limited to the condition, location and employment status of the Vessel); or
|
(b) |
to any other matter relevant to, or to any provision of any Leasing Document to which it is a party,
|
11.11 |
Compliance with operational laws.
The Guarantor shall
procure compliance, and will procure that each other Relevant Person will comply or procure compliance, with all laws or regulations relating to the Vessel and its construction, ownership, employment, operation, management and
registration, including the ISM Code, the ISPS Code, all Environmental Laws and the laws of the Vessel’s registry.
|
11.12 |
Compliance with other laws
.
|
(a) |
The Guarantor shall comply, and shall procure that each other Relevant Person (other than the Builder and the Refund Guarantor) complies with all laws and
regulations in respect of Sanctions, and in particular, they shall ensure that the Charterers shall effect and maintain a sanctions compliance policy to ensure compliance with all such laws and regulations implemented from time to time.
|
(b) |
The Guarantor:
|
|
(i) |
shall, and will procure that each other Relevant Person will, promptly notify the Owner of any non-compliance by any Relevant Person or their respective
officers, directors, or employees with all laws and regulations relating to Sanctions, (including but not limited to notifying the Owner in writing immediately upon being aware that any Relevant Person or their respective shareholders,
directors, officers or employees is a Restricted Person or has otherwise become a target of Sanctions) as well as provide all information (once available) in relation to its business and operations which may be relevant for the purposes
of ascertaining whether any of the aforesaid parties are in compliance with such laws.
|
|
(ii) |
shall, and will procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will, promptly notify the Owner of
any non-compliance by any Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) or their respective officers, directors, or employees with all laws and regulations relating to Anti-Money Laundering Laws,
Anti-Terrorism Financing Laws and/or Business Ethics Laws as well as provide all information (once available) in relation to its business and operations which may be relevant for the purposes of ascertaining whether any of the aforesaid
parties are in compliance with such laws.
|
(c) |
The Guarantor shall procure that the Vessel shall not be employed, operated or managed in any manner which (i) is contrary to any Sanctions and in particular,
the Vessel shall not be used by or to benefit any party which is a target of Sanctions and/or is a Restricted Person or trade to any area or country where trading the Vessel to such area or country would constitute or reasonably be
expected to constitute a breach of any Sanctions or published boycotts imposed by any of the United Nations, the European Union, the United States of America, the United Kingdom or the People’s Republic of China (provided that operation
or use of the Vessel by the BP Charterer pursuant to the BP Charter shall not in any case be deemed to be in breach or contrary to any published boycotts imposed by the People’s Republic of China); (ii) would result or reasonably be
expected to result in any Relevant Person or the Owner becoming a Restricted Person; or (iii) would trigger the operation of any sanctions limitation or exclusion clause in any insurance documentation.
|
(d) |
The Guarantor shall, and shall procure that each other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) and their
respective officers, directors and employees, will:
|
|
(i) |
comply with all Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws;
|
|
(ii) |
to the extent required by applicable law, maintain systems, controls, policies and procedures designed to promote and achieve ongoing compliance with
Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws; and
|
|
(iii) |
in respect of the Charterers, not use, or permit or authorize any person to directly or indirectly use, the Financing Amount for any purpose that would breach
any Anti-Money Laundering Laws, Anti-Terrorism Financing Laws or Business Ethics Laws; and
|
|
(iv) |
they shall not lend, invest, contribute or otherwise make available the Financing Amount to or for any other person in a manner which would
|
11.13 |
No Security Interests.
The Guarantor will not and will
procure that each other Relevant Person will not create, assume or permit to exist any Security Interest of any kind upon any Leasing Document to which it is a party or any asset subject thereto, other than the Permitted Security
Interests.
|
11.14 |
Financial covenants.
|
(a) |
The Guarantor shall ensure that, at any time during the Security Period, the Guarantor’s Leverage Ratio shall not be more than eighty per cent (80%).
|
(b) |
The Guarantor shall ensure that all time during the Security Period the Liquid Funds shall not be less than the aggregate of:
|
|
(i) |
$750,000 multiplied by the number of Fleet Vessels (other than the Chartered Fleet Vessels, the Vessel and the Other Vessel); and
|
|
(ii) |
$500,000 multiplied by the number of the Chartered Fleet Vessels; and
|
|
(iii) |
$1,000,000 multiplied by two (representing the Vessel and the Other Vessel).
|
|
(a) |
the Total Net Debt; and
|
|
(b) |
the aggregate Market Value of all Fleet Vessels adjusted to include 50% of the value of 50% Owned Vessels.
|
|
(a) |
on a date no earlier than fifteen (15) days previously;
|
|
(b) |
with or without physical inspection of that Vessel;
|
|
(c) |
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
existing charter or other contract of employment,
|
11.15 |
Compliance Certificate
. The Guarantor shall supply to
the Owner, a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 11.14 on each Testing Date; and each Compliance Certificate shall be signed by a Co-Chief Financial Officer of the
Guarantor.
|
11.16 |
Negative Pledge
. The Guarantor shall:
|
(a) |
procure that the Charterers will not create or permit to arise any Security Interest over any of its assets present or future except for the Permitted
Security Interests.; and
|
(b) |
procure that its liabilities under this Guarantee will rank at least pari passu with all its other present and future unsecured liabilities, except for
liabilities which are mandatorily preferred by law.
|
11.17 |
No disposal of assets, change of business.
The
Guarantor will not, and shall (at all times) procure that no other Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) shall:
|
(a) |
transfer, lease or otherwise dispose of all or a substantial part of their respective assets (or any of their assets, in the case of the Charterer), whether
by one transaction or a number of transactions, whether related or not except in the usual course of their respective trading operations; or
|
(b) |
make any substantial change (or any change, in the case of the Charterer) to the nature of their respective business or corporate structure from that existing
as at the date of this Guarantee.
|
11.18 |
No merger etc.
The Guarantor shall not enter into any
form of merger, sub-division, amalgamation or other reorganisation.
|
11.19 |
FATCA.
The Guarantor shall not, and shall procure that
no Relevant Person (other than the BP Charterer, the Builder and the Refund Guarantor) will become a FATCA FFI or US Tax Obligor.
|
11.20 |
No payment of dividend.
The Guarantor shall not
declare, make or pay any dividend or other distribution (or interest on any unpaid dividend or other distribution) on or in respect of its share capital (whether in cash or in kind) upon the occurrence of a Termination Event described
in clause 48 of the Bareboat Charter.
|
12 |
JUDGMENTS AND CURRENCY INDEMNITY
|
12.1 |
Judgments relating to Bareboat Charter and other Leasing
Documents.
This Guarantee shall cover any amount payable by any other Relevant Person under or in connection with any judgment or award relating to the Bareboat Charter and any other Leasing Document.
|
12.2 |
Currency indemnity.
If any sum due from the Guarantor
to the Owner under this Guarantee or under any order, judgment or award relating to this Guarantee has to be converted from the currency in which this Guarantee provided for the sum to be paid (the “
Contractual Currency
”) into another currency (the “
Payment
Currency
”) for the purpose of:
|
(a) |
making or lodging any claim or proof against the Guarantor, whether in its liquidation, any arrangement involving it or otherwise; or
|
(b) |
obtaining an order, judgment or award from any court or other tribunal; or
|
(c) |
enforcing any such order, judgment or award;
|
13 |
SUPPLEMENTAL
|
13.1 |
Continuing guarantee.
This Guarantee shall remain in
force as a continuing security interest at all times during the Security Period.
|
13.2 |
Rights cumulative, non-exclusive.
The Owner’s rights
under and in connection with this Guarantee are cumulative, may be exercised as often as appears expedient and shall not be taken to exclude or limit any right or remedy conferred by law.
|
13.3 |
No impairment of rights under Guarantee.
If the Owner
omits to exercise, delays in exercising or invalidly exercises any of its rights under this Guarantee, that shall not impair that or any other right of the Owner under this Guarantee.
|
13.4 |
Severability of provisions.
If any provision of this
Guarantee is or subsequently becomes void, illegal, unenforceable or otherwise invalid, that shall not affect the validity, legality or enforceability of its other provisions.
|
13.5 |
Guarantee not affected by other Security Interests.
This
Guarantee shall not impair, nor be impaired by, any other guarantee or any right of set-off or netting or to combine accounts which the Owner may now or later hold in connection with the Bareboat Charter or any other Leasing Document.
|
13.6 |
Guarantor bound by Bareboat Charter and other Leasing
Documents.
The Guarantor agrees with the Owner to be bound by all provisions of the Bareboat Charter and any other Leasing Document in the same way as if those provisions had been set out (with any necessary modifications) in
this Guarantee.
|
13.7 |
Applicability of provisions of Guarantee to other rights.
Clauses
3 and 16 shall also apply to any right of set-off or netting or to combine accounts which the Guarantor creates by an agreement entered into at the time of this Guarantee or at any later time (notwithstanding that the agreement does not
include provisions similar to Clauses 3 and 16), being an agreement referring to this Guarantee.
|
13.8 |
Third party rights.
A person who is not a party to
this Guarantee has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Guarantee.
|
13.9 |
Counterpart
. This Guarantee 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 Guarantee.
|
13.10 |
FATCA Information.
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by the other Party:
|
|
(i) |
confirm to the other Party whether it is:
|
|
(A) |
a FATCA Exempt Party; or
|
|
(B) |
not a FATCA Exempt Party; and
|
|
(ii) |
supply to the other Party such forms, documentation and other information relating to its status under FATCA (including its applicable “passthru payment
percentage” or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as the other Party reasonably requests for the purposes of the other Party's compliance with
FATCA.
|
(b) |
If a Party confirms to the other Party pursuant to paragraph (a)(i) 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 the other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige either 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 its status or to supply forms, documentation or other information
requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:
|
|
(i) |
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of this Guarantee and
the Leasing Documents as if it is not a FATCA Exempt Party; and
|
|
(ii) |
if that Party failed to confirm its applicable "passthru payment percentage" then such Party shall be treated for the purposes of the Finance Documents (and
payments made thereunder) as if its applicable "passthru payment percentage" is one hundred per cent. (100%),
|
14 |
ASSIGNMENT
|
14.1 |
Assignment by Owner.
|
14.2 |
The Guarantor may not assign any of its rights or transfer any of its rights or obligations under this Guarantee.
|
15 |
NOTICES
|
15.1 |
Notices to Guarantor.
Any notice or demand to the
Guarantor under or in connection with this Guarantee shall be given by letter or fax or mail at:
|
15.2 |
Validity of demands.
A demand under this Guarantee
shall be valid notwithstanding that it is served:
|
(a) |
on the date on which the amount to which it relates is payable by the relevant Relevant Person under the Leasing Document to which it is a party;
|
(b) |
at the same time as the service of a notice under clause 43 of the Bareboat Charter;
|
15.3 |
Notices to Owner.
Any notice to the Owner under or in
connection with this Guarantee shall be sent to the same address and in the same manner as notices to the Owner under the Bareboat Charter.
|
16 |
INVALIDITY OF BAREBOAT CHARTER
|
16.1 |
Invalidity of Bareboat Charter or other Leasing Documents
.
In the event of:
|
(c) |
the Bareboat Charter or any other Leasing Document 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
|
(d) |
without limiting the scope of paragraph (a), a bankruptcy of the Relevant Person party thereto, the introduction of any law or any other matter resulting in
that Relevant Person
|
17 |
GOVERNING LAW AND ENFORCEMENT
|
17.1 |
Governing law
.
|
17.2 |
Arbitration
.
|
(a) |
Any dispute arising out of or in connection with this Guarantee (including a dispute regarding the existence, validity or termination of this Guarantee or any
non-contractual obligation arising out of or in connection with this Guarantee) (a "
Dispute
") shall be referred to and finally
resolved by 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 17. 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.
|
(b) |
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 arbitrators within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless any of the other Party
appoints its own arbitrator and gives notice that it has done so within the 14 days specified. If the other Party does not appoint its own arbitrator and give notice that it has done so within the 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 all Parties as if he had been appointed by agreement. Nothing herein shall prevent the Parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
|
(c) |
Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated above.
|
(d) |
The language of the arbitration shall be English.
|
1. |
We refer to the Guarantee. This is a Compliance Certificate. Terms defined in the Guarantee have the same meaning when used in this Compliance Certificate
unless given a difference meaning in this Compliance Certificate.
|
2. |
We confirm that, as at the date hereof, no Termination Event has occurred and is continuing which has not been waived or remedied at the date hereof [or if
that is not the case, specifying the same and the steps, if any, being taken to remedy the same].
|
3. |
We confirm that, at any time during the Security Period, Leverage Ratio was not be more than 80 per cent (80%).
|
4. |
We confirm that all time during the Security Period the Liquid Funds was not be less than the aggregate of:
|
|
(i) |
$750,000 multiplied by the number of Fleet Vessels (other than the Chartered Fleet Vessels, the Vessel and the Other Vessel); and
|
|
(ii) |
$500,000 multiplied by the number of the Chartered Fleet Vessels; and
|
|
(iii) |
$1,000,000 multiplied by two (representing the Vessel and the Other Vessel).
|
GUARANTOR
|
||
EXECUTED AS A DEED
|
)
|
|
by
TOP SHIPS INC.
|
)
|
|
acting by
|
)
|
|
)
|
||
pursuant to a power of attorney dated __________
|
)
|
|
in the presence of:
|
)
|
|
)
|
||
Witness’ signature:
|
)
|
|
Witness’ name:
|
)
|
|
Witness’ address:
|
)
|
|
)
|
||
OWNER
|
||
SIGNED, SEALED and DELIVERED
|
)
|
|
by
SEA 104 LEASING CO., LIMITED
|
)
|
|
acting by
|
)
|
/s/
|
being an attorney-in-fact
|
)
|
|
)
|
||
in the presence of:
|
)
|
|
Witness’ signature:
/s/
|
)
|
|
Witness’ name:
|
)
|
|
Witness; address: 22F, China Merchants Bank Building, No. 1088
Lujiazui Ring Road, Shanghai, China
|
)
|
Clause
|
Page
|
|
Section 1 - Interpretation
|
1
|
|
1
|
Definitions and interpretation
|
1
|
Section 2 - The Facility
|
24
|
|
2
|
The Facility
|
24
|
3
|
Purpose
|
24
|
4
|
Conditions of Utilisation
|
25
|
Section 3 - Utilisation
|
26
|
|
5
|
Utilisation
|
26
|
Section 4 - Repayment, Prepayment and Cancellation
|
27
|
|
6
|
Repayment
|
27
|
7
|
Illegality, prepayment and cancellation
|
28
|
8
|
Restrictions
|
31
|
Section 5 - Costs of Utilisation
|
34
|
|
9
|
Interest
|
34
|
10
|
Interest Periods
|
35
|
11
|
Changes to the calculation of interest
|
35
|
12
|
Fees
|
36
|
Section 6 - Additional Payment Obligations
|
38
|
|
13
|
Tax gross-up and indemnities
|
38
|
14
|
Increased Costs
|
42
|
15
|
Other indemnities
|
43
|
16
|
Mitigation by the Lenders
|
47
|
17
|
Costs and expenses
|
47
|
Section 7 - Guarantee
|
49
|
|
18
|
Guarantee and indemnity
|
49
|
Section 8 - Representations, Undertakings and Events of Default
|
52
|
|
19
|
Representations
|
52
|
20
|
Information undertakings
|
59
|
21
|
Financial covenants
|
62
|
22
|
General undertakings
|
63
|
23
|
Construction period
|
67
|
24
|
Dealings with Ship
|
68
|
25
|
Condition and operation of Ship
|
70
|
26
|
Insurance
|
73
|
27
|
Minimum security value
|
77
|
28
|
Chartering undertakings
|
80
|
29
|
Bank accounts
|
81
|
30
|
Business restrictions
|
82
|
31
|
Events of Default
|
85
|
Section 9 - Changes to Parties
|
90
|
|
32
|
Changes to the Lenders
|
90
|
33
|
Changes to the Obligors
|
93
|
Section 10 - - The Finance Parties
|
94
|
|
34
|
Roles of Agent. Security Agent and Arranger
|
94
|
35
|
Trust and security matters
|
105
|
36
|
Enforcement of Transaction Security
|
109
|
37
|
Application of proceeds
|
110
|
38
|
Conduct of business by the Finance Parties
|
113
|
39
|
Sharing among the Finance Parties
|
113
|
Section 11 - Administration
|
115
|
|
40
|
Payment mechanics
|
115
|
41
|
Set-off
|
118
|
42
|
Notices
|
119
|
43
|
Calculations and certificates
|
121
|
44
|
Partial invalidity
|
121
|
45
|
Remedies and waivers
|
121
|
46
|
Amendments and waivers
|
121
|
47
|
Confidential Information
|
126
|
48
|
Confidentiality of Funding Rates
|
128
|
49
|
Counterparts
|
129
|
50
|
Contractual recognition of bail-in
|
130
|
Section 12 - Governing Law and Enforcement.
|
131
|
|
51
|
Governing law
|
131
|
52
|
Enforcement
|
131
|
Schedule 1 The original parties
|
132
|
|
Schedule 2 Ship information
|
134
|
|
Schedule 3 Conditions precedent.
|
135
|
|
Schedule 4 Utilisation Request.
|
141
|
|
Schedule 5 Form of Transfer Certificate
|
142
|
|
Schedule 6 Form of Compliance Certificate Part A - Borrower
|
145
|
|
Part B - Guarantor
|
146
|
Schedule 7 Forms of Notifiable Debt Purchase Transaction Notice
|
147
|
|
Schedule 8 Semi-Annual Vessel Performance Report
|
149
|
(1) |
ASTARTE INTERNATIONAL INC.
(the
Borrower
);
|
(2) |
TOP SHIPS INC.
(the
Guarantor
);
|
(3) |
AMSTERDAM TRADE BANK N.V.
as mandated
lead arranger (the
Arranger
);
|
(4) |
THE FINANCIAL INSTITUTIONS
listed in
Schedule 1 as lenders (the
Original Lenders
);
|
(5) |
AMSTERDAM TRADE BANK N.V.
as agent of
the other Finance Parties (the
Agent
);
and
|
(6) |
AMSTERDAM TRADE BANK N.V.
as security
trustee for the Finance Parties (the
Security Agent
).
|
1. |
Definitions and interpretation
|
1.1 |
Definitions
|
|
(a) |
a bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of “A-” or higher by
Standard & Poor’s Rating Services or Fitch Ratings Ltd or “Baa1” or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or
|
|
(b) |
any other bank or financial institution approved by the Agent and the Borrower.
|
|
(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) |
any law or regulation in force as at the date hereof implementing the Basel II Accord, (including the relevant provisions of CRD IV and CRR)
to the extent only that such law or regulation re-enacts and/or implements the requirements of the Basel II Accord but excluding any provision of such law or regulation implementing the Basel III Accord; and
|
|
(b) |
any Basel II Approach adopted by a Finance Party or any of its Affiliates.
|
|
(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”.
|
|
(a) |
the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its
participation in the Loan or relevant part of it or Unpaid Sum to the last day of the current Interest Period in respect of the Loan or relevant part of it or Unpaid Sum, had the relevant principal amount or Unpaid Sum received been
paid on the last day of that Interest Period;
|
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the relevant principal amount or Unpaid Sum received by it
on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of that Interest Period.
|
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Schedule 1
(The original parties)
and the amount of any other Commitment assigned to it under this Agreement; and
|
|
(b) |
in relation to any other Lender, the amount of any Commitment assigned to it under this Agreement,
|
|
(a) |
any member of the Group or any of its advisers; or
|
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group 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 47
(Confidential Information);
or
|
|
(B) |
is identified in writing or orally if given orally at the time of delivery as non-confidential by any member of the Group 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 the Group 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) |
purchases by way of assignment or transfer;
|
|
(b) |
enters into any sub-participation in respect of; or
|
|
(c) |
enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,
|
|
(a) |
which has failed to make its participation in the Loan available (or has notified the Agent or the Borrower (which has notified the Agent)
that it will not make its participation in the Loan available) by the Utilisation Date in accordance with clause 5.4
(Lenders’
participation);
|
|
(b) |
which has otherwise rescinded or repudiated a Finance Document; or
|
|
(c) |
with respect to which an Insolvency Event has occurred and is continuing,
|
|
(i) |
its failure to pay is caused by:
|
|
(A) |
administrative or technical error; or
|
|
(B) |
a Disruption Event; and,
|
|
(ii) |
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
|
(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
|
|
(b) |
the occurrence of any other event which results in a disruption (of a technicalor systems- related nature) to the treasury or payments
operations of a Party preventing that, or any other Party:
|
|
(i) |
from performing its payment obligations under the Finance Documents: or
|
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
|
(a) |
enforcement, clean-up, removal or other governmental or regulator y action or orders or claims instituted or made pursuant to any
Environmental Laws or resulting from a Spill; or
|
|
(b) |
any claim made by any other person relating to a Spill.
|
|
(a) |
any Fleet Vessel or its owner, operator or manager is liable for Environmental Claims arising from the Spill (other than Environmental Claims
arising and fully satisfied before the date of this Agreement); and/or
|
|
(b) |
any Fleet Vessel is arrested or attached in connection with any such Environmental Claim.
|
|
(a) |
in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or,
following that date. by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; or
|
|
(b) |
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
|
(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) |
30 September 2023; and
|
|
(b) |
the date falling sixty Months after the Utilisation Date.
|
|
(a) |
moneys borrowed and debit balances at banks or other financial institutions;
|
|
(b) |
any amount raised under any acceptance under any acceptance credit or bill discounting 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 respect of any lease or hire purchase contract which would, in accordance with GAAP be treated as a finance or
capital lease;
|
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for
de-recognition u n der GAAP);
|
|
(f) |
any Treasury Transaction (and, when calculating the value of that Treasury 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 Treasury Transaction, that amount) shall be taken into account);
|
|
(g) |
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;
|
|
(h) |
in respect of the Borrower only, any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before
the Final Repayment Date or are otherwise classified as borrowings under GAAP);
|
|
(i) |
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the
agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date
of supply;
|
|
(j) |
any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) of
a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing or otherwise classified as borrowings under GAAP; and
|
|
(k) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.
|
|
(a) |
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the
due date for payment;
|
|
(b) |
the Agent otherwise rescinds or repudiates a Finance Document;
|
|
(c) |
(if the Agent is also a Lender) it is a Defaulting Lender under paragraphs (a) or (b) of the definition of “Defaulting Lender”; or
|
|
(d) |
an Insolvency Event has occurred and is continuing with respect to the Agent; unless, in the case of paragraph (a) above:
|
|
(i) |
its failure to pay is caused by:
|
|
(A) |
administrative or technical error; or
|
|
(B) |
a Disruption Event; and
|
|
(ii) |
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
|
(a) |
each Finance Party, each Receiver, any Delegate and any attorney, agent or other person appointed by them under the Finance Documents;
|
|
(b) |
each Affiliate of those persons; and
|
|
(c) |
any officers, directors, employees, advisers, representatives or agents of any of the above persons.
|
|
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
|
(d) |
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or
regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
|
|
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is
instituted or presented by a person or entity not described in paragraph (d) above and:
|
|
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding up or
liquidation; or
|
|
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
|
(f) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or
merger);
|
|
(g) |
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity
described in paragraph (d) above);
|
|
(h) |
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other
enforcement action or legal process levied, enforced, taken or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained,
in each case within 30 days thereafter;
|
|
(i) |
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of
the events specified in paragraphs (a) to (h) above; or
|
|
(j) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
|
(a) |
all policies and contracts of insurance; and
|
|
(b) |
all entries in a protection and indemnity or war risks or other mutual insurance association,
|
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the relevant Interest Period;
and
|
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant Interest Period,
|
|
(a) |
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws
relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
|
(b) |
the time barring of claims under the Limitation Act 1980 and the Foreign Limitation Periods Act 1984, the possibility that an undertaking to
assume liability for, or indemnify a person against, non-payment of UK stamp duty may be void and defences of set-off or counterclaim; and
|
|
(c) |
similar principles, rights and defences under the laws of any Relevant Jurisdiction.
|
|
(a) |
any Original Lender; and
|
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with clause 32
(Changes to the Lenders),
|
|
(a) |
the applicable Screen Rate as of 11:00 a.m. on the relevant Quotation Day for a period equal in length to the Interest Period of the Loan or
relevant part of it or Unpaid Sum; or
|
|
(b) |
as otherwise determined pursuant to clause 11.1
(Unavailability of Screen Rate),
|
|
(a) |
the business or financial condition of an Obligor (other than CSM);
|
|
(b) |
the ability of an Obligor to perform its obligations under the Finance Documents; or
|
|
(c) |
the legality, validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purporting to be granted
pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
|
(a) |
for the period commencing on the Utilisation Date and ending on the date falling twelve Months thereafter (the
First Anniversary
),
115% of the Loan;
|
|
(b) |
for the period commencing on the first day falling after the First Anniversary and ending on the date falling twelve Months thereafter (the
Second Anniversary
),
120% of the
loan;
|
|
(c) |
for the period commencing on the first day falling after the Second Anniversary and ending on the date falling twelve Months thereafter (the
Third Anniversary
),
125% of the
Loan; and
|
|
(d) |
from the period commencing on the first day falling after the Third Anniversary and ending on the last day of the Facility Period and as long
as the Ship is subject to a Mortgage, 140% of the Loan.
|
|
(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
the calendar month in which that period is to end (if there is one) or on the immediately preceding Business Day (if there is not);
|
|
(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) |
the Mortgage;
|
|
(b) |
the General Assignment;
|
|
(c) |
the Share Security;
|
|
(d) |
the Charter Assignment;
|
|
(e) |
the Account Security in relation to the Operating Account; and
|
|
(f) |
any Manager’s Undertaking if required under clause 24.4
(Manager).
|
|
(a) |
any ship repairer’s or outfitter’s possessory lien in respect of the Ship for an amount not exceeding the Major Casualty Amount;
|
|
(b) |
any lien on the Ship for master’s, officer’s or crew’s wages outstanding in the ordinary course of its trading;
|
|
(c) |
any lien on the Ship for salvage or general average; and
|
|
(d) |
any other lien on the Ship arising by operation of law for claims incurred in the ordinary course of the operation, repair or maintenance of
the Ship and which are outstanding for not longer than thirty (30) days or for an aggregate amount not exceeding the Major Casualty Amount.
|
|
(a) |
granted by the Finance Documents; or
|
|
(b) |
a Permitted Maritime Lien; or
|
|
(c) |
approved by the Majority Lenders.
|
|
(a) |
its Original Jurisdiction;
|
|
(b) |
any jurisdiction where any Charged Property owned by it is situated;
|
|
(c) |
any jurisdiction where it conducts its business; and
|
|
(d) |
any jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
|
(a) |
the First Repayment Date;
|
|
(b) |
each of the dates falling at intervals of three Months thereafter up to but not including the Final Repayment Date; and
|
|
(c) |
the Final Repayment Date.
|
|
(a) |
is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person) or otherwise a target of
Sanctions;
|
|
(b) |
is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of or, such country or
territory which is, or whose government is, subject to Sanctions broadly prohibiting dealings with such government, country or territory;
|
|
(c) |
is directly or indirectly owned by or controlled by a person referred to in (a) and/or (b) above; or
|
|
(d) |
owns or controls a person referred to in (a) and/or (b) above.
|
|
(a) |
the United States of America;
|
|
(b) |
the United Nations Security Council;
|
|
(c) |
the United Kingdom;
|
|
(d) |
the European Union or any of its member states;
|
|
(e) |
Monaco;
|
|
(f) |
any country to which any Obligor or any Affiliate of any of them is bound; or
|
|
(g) |
the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets
Control of the US Department of Treasury (OFAC), the United States Department of State, Her Majesty’s Treasury (HMT) and Service d’Information et de Controle sur les Circuits Financiers (together
Sanctions Authorities
).
|
|
(a) |
the Original Security Documents; and
|
|
(b) |
any other document as may be executed to guarantee and/or secure any amounts owing to the Finance Parties under this Agreement or any other
Finance Document.
|
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Finance Parties and all proceeds of that
Transaction Security;
|
|
(b) |
all obligations expressed to be undertaken by any Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as
trustee for the Finance Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Finance Parties; and
|
|
(c) |
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 Finance Parties .
|
|
(a) |
directly or indirectly controlled by such person; or
|
|
(b) |
of whose dividends or distributions on ordinary voting share capital such person is beneficially entitled to receive more than 50 per cent,
|
|
(a) |
actual, constructive, compromised or arranged total loss; or
|
|
(b) |
requisition for title, confiscation or other compulsory acquisition by a government entity; or
|
|
(c) |
hijacking, theft, condemnation, capture, seizure, arrest or detention for more than 90 days or in the case of piracy for more than 180 days.
|
|
(a) |
in the case of an actual total loss, the date it happened or, if such date is not known, the date on which the Ship was last reported;
|
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss, the earliest of:
|
|
(i) |
the date notice of abandonment of the Ship is given to its insurers; or
|
|
(ii) |
if the insurers do not admit such a claim, the date later determined by a competent court of law to have been the date on which the total loss
happened; or
|
|
(iii) |
the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the Ship’s insurers;
|
|
(c) |
in the case of a requisition for title, confiscation or compulsory acquisition, the date it happened; and
|
|
(d) |
in the case of hijacking, theft, condemnation, capture, seizure, arrest or detention, the date 90 days after the date upon which it happened
or in the case of piracy, the date falling 180 days after the date it happened.
|
|
(a) |
the date 180 days after its Total Loss Date; and
|
|
(b) |
the date upon which insurance proceeds or Requisition Compensation for such Total Loss are paid by insurers or the relevant government entity.
|
|
(a) |
each of the Finance Documents;
|
|
(b) |
each Building Contract Document; and
|
|
(c) |
each Charter Document.
|
|
(a) |
the proposed Transfer Date specified in the Transfer Certificate; and
|
|
(b) |
the date on which the Agent executes the Transfer Certificate.
|
|
(a) |
a Borrower which is resident for tax purposes in the US; or
|
|
(b) |
an Obligor 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 or Monaco in substitution for, or levied in
addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in
relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other
financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises,
to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to
suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
|
(ii) |
any similar or analogous powers under that Bail-In Legislation .
|
1.2 |
Construction
|
|
(a) |
Unless a contrary indication appears, a reference in any of the Finance Documents to:
|
|
(i) |
Sections, clauses and Schedules are to be construed as references to the Sections and clauses of, and the Schedules to, the relevant Finance
Document and references to a Finance Document include its Schedules;
|
|
(ii) |
a
Finance Document
or any other
agreement or instrument is a reference to that Finance Document or other agreement or instrument as it may from time to time be amended, restated, novated or replaced, however fundamentally ;
|
|
(iii) |
words importing the plural shall include the singular and vice versa;
|
|
(iv) |
a time of day are to London time;
|
|
(v) |
any person includes its successors in title, permitted assignees or transferees;
|
|
(vi) |
a document in agreed form means:
|
|
(A) |
where a Finance Document has already been executed by all of the relevant parties, such Finance Document in its executed form;
|
|
(B) |
prior to the execution of a Finance Document, the form of such Finance Document separately agreed in writing between the Agent and the
Borrower as the form in which that Finance Document is to be executed or another form approved at the request of the Borrower or, if not so agreed or approved, is in the form specified by the Agent;
|
|
(vii) |
approved by the Majority Lenders or approved
by the Lenders
means approved in writing by the Agent acting on the instructions of the Majority Lenders or, as the case may be, all of the Lenders (on such conditions as they may respectively impose) and otherwise
approved
means approved in writing by the Agent (on such conditions as the Agent may impose) and
approval
and
approve
shall be construed accordingly;
|
|
(viii) |
assets
includes present and future
properties, revenues and rights of every description;
|
|
(ix) |
charter commitment
means, in relation
to a vessel, any charter or contract for the use, employment or operation of that vessel or the carriage of people and/or cargo or the provision of services by or from it and includes any agreement for pooling or sharing income derived
from any such charter or contract;
|
|
(x) |
control
of an entity means:
|
|
(A) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
|
(1) |
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 that entity;
or
|
|
(2) |
appoint or remove all, or the majority, of the directors or other equivalent officers of that entity; or
|
|
(3) |
give directions with respect to the operating and financial policies of that entity with which the directors or other equivalent officers of
that entity are obliged to comply; or
|
|
(B) |
the holding beneficially of more than 50 per cent of the issued share capital of that entity (excluding any part of that issued share capital
that carries no right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over share capital shall be disregarded in determining the beneficial ownership
of such share capital);
|
|
(xi) |
the term
disposal or dispose
means a
sale, transfer or other disposal (including by way of lease or loan but not including by way of loan of money) by a person of all or part of its assets, whether by one transaction or a series of transactions and whether at the same time
or over a period of time, but not the creation of a Security Interest;
|
|
(xii) |
the
equivalent
of an amount specified
in a particular currency (the
specified currency amount
)
shall be construed as a reference to the amount of the other relevant currency which can be purchased with the specified currency amount in the London foreign exchange market at or about 11 a.m. on the date
the calculation falls to be made for spot delivery, as conclusively determined by the Agent (with the relevant exchange rate of any such purchase being the
Agent’s spot rate of exchange
);
|
|
(xiii) |
a
government entity
means any
government, state or agency of a state;
|
|
(xiv) |
a
group of Lenders
or a
group of Finance Parties
includes all the Lenders or (as the case may be) all the Finance Parties;
|
|
(xv) |
a
guarantee
means (other than in
clause 18
(Guarantee and indemnity))
any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any
obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is
assumed in order to maintain or assist the ability of such person to meet its indebtedness;
|
|
(xvi) |
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;
|
|
(xvii) |
an
obligation
means any duty,
obligation or liability of any kind;
|
|
(xviii) |
something being in the
ordinary course of
business
of a person means something that is in the ordinary course of that person’s current day-to-day
|
|
(xix) |
pay or repay
in clause 30
(Business restrictions)
includes by way of set-off, combination of accounts or otherwise;
|
|
(xx) |
a
person
includes any individual,
firm, company, corporation, government entity or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
|
|
(xxi) |
a
regulation
includes any regulation,
rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law, one with which a person habitually complies) of any governmental, intergovernmental or supranational body,
agency, department or regulatory, self-regulatory or other authority or organisation and, in relation to any Lender, includes (without limitation) any Basel II Regulation or Basel III Regulation applicable to that Lender;
|
|
(xxii) |
right
means any right, privilege,
power or remedy, any proprietary interest in any asset and any other interest or remedy of any kind, whether actual or contingent, present or future, arising under contract or law, or in equity;
|
|
(xxiii) |
trustee
,
fiduciary
and
fiduciary duty
has in each case the
meaning given to such term under applicable law;
|
|
(xxiv) |
(i) the
liquidation
,
winding up
,
dissolution
,
or administration
of person or (ii) a
receiver
or administrative receiver or administrator
in the context of insolvency proceedings or security enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous proceedings or any
equivalent and analogous person or appointee (respectively) under the law of the jurisdiction in which such person is established or incorporated or any jurisdiction in which such person carries on business including (in respect of
proceedings) the seeking or occurrences of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors; and
|
|
(xxv) |
a provision of law is a reference to that provision as amended or re-enacted.
|
|
(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) |
Where in this Agreement a provision includes a monetary reference level in one currency, unless a contrary indication appears, such reference
level is intended to apply equally to its equivalent in other currencies as of the relevant time for the purposes of applying such reference level to any other currencies.
|
|
(d) |
Section, clause and Schedule headings are for ease of reference only.
|
|
(e) |
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.
|
|
(f) |
A Default is continuing if it has not been remedied or waived.
|
1.3 |
Currency symbols and definitions
|
1.4 |
Third party rights
|
|
(a) |
Unless expressly provided to the contrary in a Finance Document for the benefit of a Finance Party or another Indemnified Person, a person who
is not a party to a Finance Document has no right under the Contracts (Rights of Third Parties ) Act 1999 (the
Third Parties Act
)
to enforce or enjoy the benefit of any term of the relevant Finance Document.
|
|
(b) |
Any Finance Document may be rescinded or varied by the parties to it without the consent of any person who is not a party to it (unless
otherwise provided by this Agreement).
|
|
(c) |
An Indemnified Person who is not a party to a Finance Document may only enforce its rights under that Finance Document through a Finance Party
and if and to the extent and in such manner as the Finance Party may determine.
|
1.5 |
Finance Documents
|
1.6 |
Conflict of documents
|
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 an Obligor shall be a separate and independent debt.
|
|
(c) |
(c) A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
2.3 |
Reduction of Commitments on Utilisation Date
|
|
(a) |
On the Utilisation Date, the Total Commitments shall be reduced if and to the extent necessary to ensure that the Total Commitments do not
exceed the amount in dollars which is equal to 72.5% of the market value of the Ship, as determined in accordance with the valuations obtained under Part 3 of Schedule 3
(Conditions precedent on Delivery).
|
|
(b) |
Any reduction under paragraph (a) above shall be applied in reducing the Commitments of the Lenders rateably.
|
3. |
Purpose
|
3.1 |
Purpose
|
3.2 |
Use of Commitment
|
3.3 |
Monitoring
|
4. |
Conditions of Utilisation
|
4.1 |
Initial conditions precedent
|
4.2 |
Conditions precedent on Delivery
|
4.3 |
Notice of satisfaction of conditions
|
4.4 |
Further conditions precedent
|
|
(a) |
on the date of the Utilisation Request and on the proposed Utilisation Date, no Default is continuing or would result from the proposed
Utilisation;
|
|
(b) |
on the date of the Utilisation Request and on the proposed Utilisation Date, all of the representations set out in clause 19
(Representations)
(except the Ship Representations) are true; and
|
|
(c) |
where the proposed Utilisation Date is to be the first day of the Mortgage Period, the Ship Representations are true on the proposed
Utilisation Date.
|
4.5 |
Waiver of conditions precedent
|
5. |
Utilisation
|
5.1 |
Delivery of a Utilisation Request
|
5.2 |
Completion of a Utilisation Request
|
|
(a) |
A Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
|
(b) |
the proposed Utilisation Date is a Business Day falling on or before the Last Availability Date;
|
|
(i) |
the currency and amount of the Utilisation comply with clause 5.3
(Currency and amount);
|
|
(ii) |
the proposed Interest Period complies with clause 10
(Interest Periods);
and
|
|
(iii) |
it identifies the purpose for the Utilisation and that purpose complies with clause 3
(Purpose).
|
|
(c) |
Only one Utilisation Request may be made.
|
|
(d) |
The Commitment may be borrowed in a single Utilisation.
|
5.3 |
Currency and amount
|
|
(a) |
The currency specified in a Utilisation Request must be dollars.
|
|
(b) |
Only one Utilisation Request may be made.
|
|
(c) |
The amount of the proposed Utilisation must not exceed the amount of the Total Commitments.
|
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 prior to making the Loan.
|
|
(c) |
The Agent shall promptly notify each Lender of the amount of the Loan and the amount of its participation in the Loan, in each case by 11:00
a.m. on the relevant Quotation Day.
|
|
(d) |
The Agent shall pay all amounts received by it in respect of the Loan (and its own participation in it, if any) to the Borrower or for its
account or the Builder, in each case in accordance with the instructions contained in the Utilisation Request.
|
6. |
Repayment
|
6.1 |
Repayment
|
6.2 |
Scheduled repayment of Facility
|
|
(a) |
To the extent not previously reduced, the Loan shall be repaid by instalments on each Repayment Date by the amount specified below (as revised
by clause 6.3
(Adjustment of scheduled repayments)):
|
Repayment Date
|
Amount $
|
||
First
|
325,000
|
||
Second
|
325,000
|
||
Third
|
325,000
|
||
Fourth
|
325,000
|
||
Fifth
|
325,000
|
||
Sixth
|
325,000
|
||
Seventh
|
325,000
|
||
Eighth
|
325,000
|
||
Ninth
|
325,000
|
||
Tenth
|
325,000
|
||
Eleventh
|
325,000
|
||
Twelfth
|
325,000
|
||
Thirteenth
|
325,000
|
||
Fourteenth
|
325,000
|
||
Fifteenth
|
325,000
|
||
Sixteenth
|
325,000
|
||
Seventeenth
|
325,000
|
||
Eighteenth
|
325,000
|
||
Nineteenth
|
325,000
|
||
Twentieth
|
17,325,000
|
||
TOTAL
|
23,500,000
|
|
(b) |
The twentieth instalment referred to above , comprises two parts, a repayment instalment in the amount of $325,000 and a balloon instalment in
the amount of $17,000,000 (the
Balloon Instalment
).
|
|
(c) |
On the Final Repayment Date (without prejudice to any other provision of this Agreement) , the Loan shall be repaid in full.
|
6.3 |
Adjustment of scheduled repayments
|
7. |
Illegality, prepayment and cancellation
|
7.1 |
Illegality
|
|
(a) |
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
|
(b) |
upon the Agent notifying the Borrower, the Available Commitment of that Lender will be immediately cancelled; and
|
|
(c) |
to the extent that the Lender’s participation has not been assigned pursuant to clause 7.7
(Replacement of Lender),
the Borrower shall repay that Lender’s participation in the Loan on the last day of the Interest Period occurring after the Agent has notified the
Borrower or, if earlier, the date specified by the Lender in the notice delivered to the 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 repaid.
|
7.2 |
Additional Minimum Value prepayment
|
|
(a) |
Subject to paragraph (b) below:
|
|
(i) |
if on a Repayment Date the Security Value is equal to or less than the Additional Minimum Value, any money which is at that Repayment Date
(but after payment of the relevant repayment instalment payable under clause 6.2
(Scheduled repayment of Facility)
together with
interest due on such Repayment Date and any other amounts owed to the Lenders under the Finance Documents at that time) in excess of the Minimum Liquidity required under clause 21.5
(Minimum Liquidity)
together with an amount equal to $300,000 standing to the credit of the Operating Account at that time, shall be applied by the Agent on such Repayment Date (and
the Borrower instructs hereunder the Agent to make such application) in or towards reduction of the Balloon Instalment; or
|
|
(ii) |
if at any relevant time, the Security Value is greater than the Additional Minimum Value and payment of any dividend is to be made under
clause 30.13
(Distributions and other payments)
at the time, the Borrower shall make a prepayment of the Loan on a Repayment Date
immediately before the payment of such dividend in an amount equal to the amount of such dividend. Such prepayment shall be applied in reduction of the Balloon Instalment.
|
|
(b) |
Any prepayment of the Loan under paragraph (a) above shall be made in a minimum amount of $10,000 and a multiple of $10,000 and the aggregate
amount of any such prepayments throughout the Facility Period shall not exceed $1,300,000.
|
7.3 |
Voluntary cancellation
|
7.4 |
Voluntary prepayment
|
7.5 |
Right of cancellation and prepayment in relation to a single Lender
|
|
(a) |
If:
|
|
(i) |
any sum payable to any Lender by an Obligor is required to be increased under clause 13.2
(Tax gross-up);
or
|
|
(ii) |
any Lender claims indemnification from the Borrower under clause 13.3
(Tax indemnity)
or clause 14.1
(Increased
costs),
|
|
(b) |
On receipt of a notice referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
|
(c) |
On the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above in relation to a Lender (or,
if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender’s participation in the Loan together with all interest and other amounts accrued under the Finance Documents which is then owing to it.
|
7.6 |
Right of cancellation in relation to a Defaulting Lender
|
|
(a) |
If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender give the Agent
15 Business Days’ notice of cancellation of the Available Commitment of that Lender.
|
|
(b) |
On such notice becoming effective, the Available Commitment of the Defaulting Lender shall immediately be reduced to zero and the Agent shall
as soon as practicable after receipt of such notice, notify all the Lenders.
|
7.7 |
Replacement of Lender
|
|
(a) |
If:
|
|
(i) |
the Borrower becomes obliged to repay any amount in accordance with clause 7.1
(Illegality)
to any Lender; or
|
|
(ii) |
any of the circumstances set out in paragraph (a) of clause 7.5
(Right of cancellation and prepayment in relation to a single Lender)
apply to a Lender,
|
|
(A) |
the outstanding principal amount of such Lender’s participation in the Loan;
|
|
(B) |
all accrued interest owing to such Lender;
|
|
(C) |
the Break Costs which would have been payable to such Lender pursuant to clause 11.5
(Break
Costs) had the Borrower prepaid in full that Lender’s participation in the Loan on the date of the assignment; and
|
|
(D) |
all other amounts payable to that Lender under the Finance Documents on the date of the assignment.
|
|
(b) |
The replacement of a Lender pursuant to this clause 7.7 shall be subject to the following conditions:
|
|
(i) |
the Borrower shall have no right to replace the Agent or the Security Agent;
|
|
(ii) |
neither the Agent nor any Lender shall have any obligation to find a Replacement Lender;
|
|
(iii) |
in no event shall the Lender replaced under this clause 7.7 be required to pay or surrender any of the fees received by such Lender pursuant
to the Finance Documents; and
|
|
(iv) |
the Lender shall only be obliged to assign its rights pursuant to paragraph (a) above once it is satisfied that it has complied with all
necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that assignment.
|
|
(c) |
A Lender shall perform the checks described in paragraph (b)(iv) above as soon as reasonably practicable following delivery of a notice
referred to in paragraph (a) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.
|
7.8 |
Total Loss
|
|
(a) |
the Total Commitments will be reduced to zero; and
|
|
(b) |
the Borrower shall prepay the Loan.
|
7.9 |
Mandatory cancellation
|
|
(a) |
If, at any time:
|
|
(i) |
the Charter is novated or assigned by the Borrower;
|
|
(ii) |
the Charter is for any reason and by any method cancelled, terminated or rescinded or is not, or ceases to be, legal, valid, binding and
enforceable
|
|
(iii) |
a competent court or arbitration panel decides that the Charter has been validly cancelled, terminated or rescinded; or
|
|
(iv) |
the Charter is varied in a way prohibited by any Finance Document; or
|
|
(v) |
the Charterer becomes subject to any of the events or circumstances described in clause 31.9
(Insolvency)
or clause 31.10
(Insolvency proceedings),
|
|
(A) |
the Agent may, and shall if so directed by the Majority Lenders, by notice to the Borrower with effect from the date 15 days after the giving
of such notice (or such later date as may be approved in advance by the Majority Lenders) cancel the Total Commitments; and
|
|
(B) |
the Borrower shall on the date any such event occurs prepay the Loan in full.
|
7.10 |
Automatic cancellation
|
8. |
Restrictions
|
8.1 |
Notices of cancellation and prepayment
|
8.2 |
Interest and other amounts
|
8.3 |
No reborrowing
|
8.4 |
Prepayment in accordance with Agreement
|
8.5 |
No reinstatement of Commitments
|
8.6 |
Agent’s receipt of notices
|
8.7 |
Effect of repayment and prepayment on Commitments
|
8.8 |
Application of cancellations
|
8.9 |
Application of prepayments
|
|
(a) |
Any prepayment required as a result of a cancellation in full of an individual Lender’s Commitment under clause 7.1
(Illegality)
or clause 7.5
(Right of cancellation and
prepayment in relation to
a
single Lender)
shall be applied in prepaying the relevant Lender’s participation in the
Loan.
|
|
(b) |
Any other prepayment shall be applied pro rata to each Lender’s participation in the Loan.
|
8.10 |
Removal of Lender from security
|
8.11 |
Prepayment fee
|
|
(a) |
subject to paragraph (b) below, a fee:
|
|
(i) |
if a prepayment of the Loan is to be made at any time during the period commencing on the Utilisation Date and ending on the date falling
twenty four months thereafter (the
Second Anniversary
),
in an amount in dollars equal to two per cent (2%) of the amount of the Loan to be so prepaid;
|
|
(ii) |
if a prepayment of the Loan is to be made at any time during the period commencing on the date after the Second Anniversary and ending on the
date falling twelve months after the Second Anniversary (the
Third Anniversary
),
in an amount in dollars equal to one per cent (1%) of the amount of the Loan to be so prepaid; and
|
|
(iii) |
if a prepayment of the Loan is to be made at any time during the period commencing on the date after the Third Anniversary and ending on the
date falling twelve months after the Third Anniversary (the
Fourth Anniversary
),
in an amount in dollars equal to zero point five per cent (0.5%) of the amount of the Loan to be so prepaid.
|
|
(b) |
no prepayment fee shall be payable under this clause 8.11 if the Loan is prepaid in full:
|
|
(i) |
as a result of it being refinanced by Amsterdam Trade Bank N.V. or any of its Affiliates or any syndicate of banks including Amsterdam Trade
Bank N.V.; or
|
|
(ii) |
pursuant to clause 7.1
(Illegality);
or
|
|
(iii) |
pursuant to clause 7.2 (Additional Minimum Value prepayment ); or
|
|
(iv) |
pursuant to clause 7.4
(Voluntary
prepayment)
if such voluntary prepayment is made in case no agreement is reached between the Agent and the Borrower under clause 11.3
(Cost of funds);
or
|
|
(v) |
pursuant to clause 7.8
(Total
Loss);
or
|
|
(vi) |
pursuant to clause 7.5 (Right of cancellation and prepayment in relation to a single Lender).
|
9. |
Interest
|
9.1 |
Calculation of interest
|
|
(a) |
Margin; and
|
|
(b) |
LIBOR for the relevant Interest Period.
|
9.2 |
Payment of interest
|
9.3 |
Default interest
|
|
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document to a Finance Party on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph(c) below, is 2 per cent per annum higher than the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted the Loan for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).
|
|
(b) |
Any interest accruing under this clause 9.3 shall be immediately payable by the Obligor on demand by the Agent.
|
|
(c) |
If any overdue amount consists of all or part of the Loan (or any relevant part of it) which became due on a day which was not the last day of
an Interest Period relating to the Loan or the relevant part of it:
|
|
(i) |
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating
to the Loan or the relevant part of it; and
|
|
(ii) |
the rate of interest applying to the overdue amount during that first Interest Period shall be 2 per cent per annum higher than the rate which
would have applied if the overdue amount had not become due.
|
|
(d) |
Default interest payable under this clause 9.3 (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end
of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
9.4 |
Notification of rates of interest
|
|
(a) |
The Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.
|
|
(b) |
The Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan (or any relevant part of it).
|
10. |
Interest Periods
|
10.1 |
Interest Periods
|
|
(a) |
The first Interest Period for the Loan shall have a duration of three months. Each subsequent Interest Period for the Loan shall also have a
duration of three months.
|
|
(b) |
The first Interest Period for the Loan shall start on the Utilisation Date and each subsequent Interest Period for the Loan shall start on the
last day of its preceding Interest Period.
|
|
(c) |
No Interest Period shall extend beyond the Final Repayment Date.
|
10.2 |
Interest Periods overrunning Repayment Dates
|
10.3 |
Non-Business Days
|
11. |
Changes to the calculation of interest
|
11.1 |
Unavailability of Screen Rate
|
|
(a) |
If no Screen Rate is available for LIBOR for an Interest Period, LIBOR shall be the Interpolated Screen Rate for a period equal in length to
that Interest Period.
|
|
(b) |
If no Screen Rate is available for LIBOR for:
|
|
(i) |
dollars; or
|
|
(ii) |
the relevant Interest Period and it is not possible to calculate the Interpolated Screen Rate,
|
11.2 |
Market disruption
|
11.3 |
Cost of funds
|
|
(a) |
If this clause 11.3 applies, the rate of interest on each Lender’s share of the Loan or relevant part of it for the Interest Period shall be
the percentage rate per annum which is the sum of:
|
|
(i) |
the Margin;
|
|
(ii) |
the rate notified to the Agent by that Lender as soon as practicable and in any event within ten Business Days of the first day of that
Interest Period (or, if earlier, on the date falling ten Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the
relevant Lender of funding its participation in the Loan or relevant part of it from whatever source it may reasonably select.
|
|
(b) |
If this clause 11.3 applies and the Agent or the Borrower so require, the Agent and the Borrower shall enter into negotiations (for a period
of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
|
|
(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall. with the prior consent of all the Lenders and the Borrower, be binding on
all Parties.
|
|
(d) |
If this clause 11.3 applies pursuant to clause 11.2
(Market disruption)
and:
|
|
(i) |
a Lender’s Funding Rate is less than LIBOR; or
|
|
(ii) |
a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,
|
11.4 |
Notification to Borrower
|
11.5 |
Break Costs
|
|
(a) |
The Borrower shall, within five Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or
any part of the Loan or any relevant part of it or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Loan or that relevant part of it or Unpaid Sum.
|
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount and basis of
calculation of its Break Costs for any Interest Period in which they accrue.
|
12. |
Fees
|
12.1 |
Commitment commission
|
|
(a) |
The Borrower shall pay to the Agent (for the account of each Lender) a fee in dollars computed at the rate of 2% per annum on that Lender’s
Available Commitment calculated from the date of this Agreement (the
start date
).
|
|
(b) |
The Borrower shall pay the accrued commitment commission on the last day of the period of three Months commencing on the start date, on the
last day of each successive period of three Months, on the Last Availability Date and, if cancelled in full, on the cancelled amount of the relevant Lender’s Available Commitment at the time the cancellation is effective.
|
|
(c) |
No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that
Lender is a Defaulting Lender.
|
12.2 |
Arrangement fee
|
13. |
Tax gross-up and indemnities
|
13.1 |
Definitions
|
|
(a) |
In this Agreement:
|
|
(b) |
Unless a contrary indication appears, in this clause 13 a reference to
“determines”
or
“determined”
means a determination made in the absolute discretion of the
person making the determination.
|
13.2 |
Tax gross-up
|
|
(a) |
Each Obligor shall make all payments to be made by it under any Finance Document 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 Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the 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 under the relevant Finance
Document 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 Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the
relevant taxing authority.
|
13.3 |
Tax indemnity
|
|
(a) |
Each Obligor who is a Party shall (within
five
Business Days of demand by the Agent) 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 13.2
(Tax gross- up);
or
|
|
(B) |
relates to a FATCA Deduction required to be made by a Party or any Obligor which is not a Party.
|
|
(c) |
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give,
or has given, rise to the claim, following which the Agent shall notify the Borrower.
|
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this clause 13.3, notify the Agent.
|
13.4 |
Indemnities on after Tax basis
|
|
(a) |
If and to the extent that any sum payable to any Protected Party by the Borrower under any Finance Document by way of indemnity or
reimbursement proves to be insufficient, by reason of any Tax suffered thereon, for that Protected Party to discharge the corresponding liability to a third party, or to reimburse that Protected Party for the cost incurred by it in
discharging the corresponding liability to a third party, the Borrower shall pay that Protected Party such additional sum as (after taking into account any Tax suffered by that Protected Party on such additional sum) shall be required
to make up the relevant deficit.
|
|
(b) |
If and to the extent that any sum (the
Indemnity
Sum
)
constituting (directly or indirectly) an indemnity to any Protected Party but paid by the Borrower to any person other
than that Protected Party, shall be treated as taxable in the hands of the Protected Party, the Borrower shall pay to that Protected Party such sum (the
Compensating Sum
)
as (after taking into account any Tax suffered by that Protected Party on the
Compensating Sum) shall reimburse that Protected Party for any Tax suffered by it in respect of the Indemnity Sum.
|
|
(c) |
For the purposes of paragraphs (a) and (b) above, a sum shall be deemed to be taxable in the hands of a Protected Party if it falls to be
taken into account in computing the profits or gains of that Protected Party for the purposes of Tax and, if so, that Protected Party shall be deemed to have suffered Tax on the relevant sum at the rate of Tax applicable to that
Protected Party’s profits or gains for the period in which the payment of the relevant sum falls to be taken into account for the purposes of such Tax.
|
13.5 |
Stamp taxes
|
13.6 |
Value added tax
|
|
(a) |
All amounts expressed in a Finance Document to be payable 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 to a Finance
Document other than the Recipient (the
Subject 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 Subject 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 paragraph (i) applies) promptly pay to the Subject 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 Subject 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 it 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 thereof 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 13.6 to any party shall, at any time when such party is treated as a member of a group for VAT purposes, include
(where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994).
|
|
(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.
|
13.7 |
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;
|
|
(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 paragraph (a)(i) 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 paragraph (a)(iii) 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 paragraphs (a)(i) or (a)(ii) 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 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 date on which any other Lender becomes a Party as a Lender, that date; or
|
|
(iii) |
where the Borrower is not a US Tax Obligor, the date of a request from the Agent,
|
|
(A) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
|
(B) |
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such
Lender under FATCA or that other law or regulation.
|
|
(f) |
The 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 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 Agent unless
it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the
Borrower.
|
|
(h) |
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant
to paragraphs (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
13.8 |
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 the Borrower and the Agent and the Agent shall notify the other Finance Parties.
|
14. |
Increased Costs
|
14.1 |
Increased costs
|
|
(a) |
Subject to clause 14.3
(Exceptions),
the
Borrower shall, within five Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party or any of its Affiliates which:
|
|
(i) |
arises as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made after the date of this Agreement; and/or
|
|
(ii) |
is a Basel III Increased Cost.
|
|
(b) |
In this Agreement
Increased Costs
means:
|
|
(i) |
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
|
|
(ii) |
an additional or increased cost; or
|
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
14.2 |
Increased cost claims
|
|
(a) |
A Finance Party intending to make a claim pursuant to clause 14.1
(Increased costs)
shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.
|
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Agent and/or the Borrower through the Agent, provide a certificate
confirming the amount of its Increased Costs and the basis of calculation of such amount.
|
14.3 |
Exceptions
|
|
(a) |
Clause 14.1
(Increased costs)
does
not apply to the extent any Increased Cost is:
|
|
(i) |
attributable to a Tax Deduction required by law to be made by an Obliger;
|
|
(ii) |
attributable to a FATCA Deduction required to be made by a Party;
|
|
(iii) |
compensated for by clause 13.3
(Tax
indemnity)
(or would have been compensated for under clause 13.3
(Tax indemnity)
but was not so compensated solely
because any of the exclusions in paragraph (b) of clause 13.3
(Tax indemnity)
applied);
|
|
(iv) |
compensated for by the payment to a Lender under clause 15.10
(Mandatory Cost);
and
|
|
(v) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
|
(b) |
In paragraph (a) above, a reference to a Tax Deduction has the same meaning given to the term in clause 13.1
(Definitions).
|
15. |
Other indemnities
|
15.1 |
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 Obliger; and/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.
|
15.2 |
Other indemnities
|
|
(a) |
the occurrence of any Event of Default;
|
|
(b) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any and all Losses
arising as a result of clause 39
(Sharing among the Finance Parties);
|
|
(c) |
funding, or making arrangements to fund, its participation in a Utilisation requested by the Borrower in a Utilisation Request but not made by
reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
|
(d) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
15.3 |
Indemnity to the Agent and the Security Agent
|
|
(a) |
any and all Losses (together with any applicable VAT) incurred by the Agent or the Security Agent (acting reasonably) as a result of:
|
|
(i) |
investigating any event which it reasonably believes is a Default;
|
|
(ii) |
acting or relying on any notice, request
or
instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
|
(iii) |
instructing lawyers, accountants, tax advisers, insurance consultants, ship managers, valuers, surveyors or other professional advisers or
experts as permitted under the Finance Documents; or
|
|
(iv) |
any action taken by the Agent or the Security Agent or any of its or their representatives, agents or contractors in connection with any
powers conferred by any Security Document to remedy any breach of any Obligor’s obligations under the Finance Documents. and
|
|
(b) |
any and all Losses (including. without limitation, in respect of liability for negligence or any other category of liability whatsoever)
(together with any applicable VAT) incurred by the Agent or the Security Agent (otherwise than by reason of the Agent’s or the Security Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability
pursuant to clause 40.11
(Disruption to payment
systems
etc.)
notwithstanding the Agent’s or the Security Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent in
acting as Agent or the Security Agent under the Finance Documents.
|
15.4 |
Indemnity concerning security
|
|
(a) |
The Borrower shall (or shall procure that another Obligor will) promptly indemnify each Indemnified Person against any and all Losses
(together with any applicable VAT) incurred by it as a result of:
|
|
(i) |
any failure by the Borrower to comply with its obligations under clause 17
(Costs and expenses)
or any similar provision in any other Finance Document;
|
|
(ii) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
|
(iii) |
the taking, holding, protection or enforcement of the Transaction Security;
|
|
(iv) |
the exercise or purported exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and/or any
other Finance Party and each Receiver and each Delegate by the Finance Documents or by law (otherwise, in each case, than by reason of the relevant Security Agent’s and/or other Finance Party’s, Receiver’s or Delegate’s gross negligence
or wilful misconduct);
|
|
(v) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
|
(vi) |
any claim (whether relating to the environment or otherwise) made or asserted against the Indemnified Person which would not have arisen but
for the execution or enforcement of one or more Finance Documents (unless and to the extent it is caused by the gross negligence or wilful misconduct of that Indemnified Person);
|
|
(vii) |
instructing lawyers, accountants, tax advisers, insurance consultants, ship managers, valuers, surveyors or other professional advisers or
experts as permitted under the Finance Documents; or
|
|
(viii) |
(in the case of the Security Agent and/or any other Finance Party, any Receiver and any Delegate) acting as Security Agent and/or as holder of
any of the Transaction Security, Receiver or Delegate under the Finance Documents or which otherwise relates to the Charged Property (otherwise, in each case, than by reason of the relevant Security Agent’s and/or other Finance Party’s,
Receiver’s or Delegate’s gross negligence or wilful misconduct).
|
|
(b) |
The Security Agent may, in priority to any payment to the other Finance Parties, indemnify itself out of the Charged Property in respect of,
and pay and retain, all sums necessary to give effect to the indemnity in this clause 15.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.
|
15.5 |
Continuation of indemnities
|
15.6 |
Third Parties Act
|
|
(a) |
Each Indemnified Person may rely on the terms of clause 15.4
(Indemnity concerning security)
and clauses 13
(Tax gross-up and indemnities)
and 15.7
(Interest)
insofar as it relates to interest on, or the calculation of, any amount demanded by that Indemnified Person under clause
15.4
(Indemnity concerning security),
subject to clause 1.4
(Third party rights)
and the provisions of the Third Parties Act.
|
|
(b) |
Where an Indemnified Person (other than a Finance Party) (the
Relevant Beneficiary
) who is:
|
|
(i) |
appointed by a Finance Party under the Finance Documents;
|
|
(ii) |
an Affiliate of any such person or that Finance Party; or
|
|
(iii) |
an officer, director, employee, adviser, representative or agent of any of the above persons or that Finance Party,
|
|
(A) |
the Borrower shall at the same time as the relevant Third Party Claim is due to the Relevant Beneficiary pay to that Finance Party a sum in
the amount of that Third Party Claim;
|
|
(B) |
payment of such sum to that Finance Party shall, to the extent of that payment, satisfy the corresponding obligations of the Borrower to pay
the Third Party Claim to the Relevant Beneficiary; and
|
|
(C) |
if the Borrower pays the Third Party Claim direct to the Relevant Beneficiary, such payment shall, to the extent of that payment, satisfy the
corresponding obligations of the Borrower to that Finance Party under sub-paragraph (A) above.
|
15.7 |
Interest
|
15.8 |
Exclusion of liability
|
15.9 |
Sanctions
|
|
(a) |
Each Obligor shall, within five Business Days of demand by a Finance Party, indemnify such Finance Party against any cost, loss or liability
incurred by it as a result of any civil penalty or fine against, and all costs and expenses (including counsel fees and disbursements) incurred in connection with the defence thereof by, the Agent or the relevant Finance Party as a
result of conduct of any Obligor or any of its partners, directors, officers, employees, agents or advisors, that violates any applicable Sanctions.
|
|
(b) |
The indemnity in clause 15.9(a) shall cover any Losses incurred by each Finance Party in any jurisdiction arising or asserted under or in
connection with any law relating to any applicable Sanctions.
|
15.10 |
Mandatory Cost
|
|
(a) |
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other
requirements having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
|
(b) |
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements
(or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or
any other governmental authority or agency which replaces all or any of their functions),
|
16. |
Mitigation by the Lenders
|
16.1 |
Mitigation
|
|
(a) |
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which
would result in the Facility ceasing to be available or any amount becoming payable under or pursuant to, or cancelled pursuant to, any of clause 7.1
(Illegality),
clause 13
(Tax gross-up and indemnities),
clause 14
(Increased costs)
or clause 15.10
(Mandatory Cost)
including
(but not limited to) assigning its rights under the Finance Documents to another Affiliate or Facility Office.
|
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
16.2 |
Limitation of liability
|
|
(a) |
The Borrower shall promptly indemnify each Finance Party for all costs and expenses incurred by that Finance Party as a result of steps taken
by it under clause 16.1
(Mitigation).
|
|
(b) |
A Finance Party is not obliged to take any steps under clause 16.1
(Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
17. |
Costs and expenses
|
17.1 |
Transaction expenses
|
|
(a) |
this Agreement and any other documents referred to in this Agreement and the Security Documents;
|
|
(b) |
any other Finance Documents executed or proposed to be executed after the date of this Agreement including any executed to provide additional
security under clause 27
(Minimum security value);
or
|
|
(c) |
any Security Interest expressed or intended to be granted by a Finance Document.
|
17.2 |
Amendment costs
|
|
(a) |
an Obligor requests an amendment, waiver or consent; or
|
|
(b) |
an amendment is required pursuant to clause 40.10
(Change of currency),
|
17.3 |
Enforcement, preservation and other costs
|
|
(a) |
the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any proceedings instituted
by or against any Indemnified Person as a consequence of taking or holding the Security Documents or enforcing those rights;
|
|
(b) |
any valuation carried out under clause 27
(Minimum
security value);
or
|
|
(c) |
any inspection carried out under clause 25.9
(Inspection
and notice of dry-docking)
or any survey carried out under clause 25.17 (
Survey report)
at the times provided under that
clause that the relevant costs must be borne by the Borrower.
|
18. |
Guarantee and indemnity
|
18.1 |
Guarantee and indemnity
|
|
(a) |
guarantees to the Security Agent (as trustee for the Finance Parties) and the other Finance Parties punctual performance by each other Obligor
of all such Obligor’s obligations under the Finance Documents;
|
|
(b) |
undertakes with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties that whenever another Obligor (other
than the Charterer or CSM) does not pay any amount when due under or in connection with any Finance Document, it shall immediately on demand pay that amount as if it was the principal obligor; and
|
|
(c) |
agrees with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties 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 another Obligor (other than
the Charterer or CSM) not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by such Obligor 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 the Guarantor would have had to pay under this clause 18.1 if the amount claimed had been recoverable on the basis of a guarantee.
|
18.2 |
Continuing guarantee
|
18.3 |
Reinstatement
|
18.4 |
Waiver of defences
|
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any other Obligor;
|
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other
|
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an 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.
|
18.5 |
Guarantor intent
|
18.6 |
Immediate recourse
|
18.7 |
Appropriations
|
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance 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 in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor’s liability under this
clause 18.
|
18.8 |
Deferral of Guarantor’s rights
|
|
(a) |
Until all amounts which may be or become payable by the Obligors (other than the Charterer or CSM) under or in connection with the Finance
Documents have been irrevocably paid in full and unless the Agent otherwise directs, the Guarantor will not exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason
of any amount being payable, or liability arising, under this clause 18:
|
|
(i) |
to be indemnified by another Obligor;
|
|
(ii) |
to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;
|
|
(iii) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the
Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
|
(iv) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the
Guarantor has given a guarantee, undertaking or indemnity under this clause 18;
|
|
(v) |
to exercise any right of set-off against any other Obligor; and/or
|
|
(vi) |
to claim or prove as a creditor of any other Obliger in competition with any Finance Party.
|
|
(b) |
If the Guarantor receives any benefit, payment or distribution in relation to such rights it will promptly pay an equal amount to the Agent
for application in accordance with clause 40
(Payment mechanics).
This only applies until all amounts which may be or become
payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full.
|
18.9 |
Additional security
|
19. |
Representations
|
19.1 |
Status
|
|
(a) |
Each Obligor is a corporation, duly incorporated and validly existing under the law of its Original Jurisdiction.
|
|
(b) |
Each Obligor has power and authority to own its assets and to carry on its business as it is now being conducted within the scope of its
purpose.
|
|
(c) |
More specifically, CSM has remained at all times in compliance with the terms of the Monaco Law No. 767 of July 8, 1964 concerning the
cancellation of authorisations to incorporate limited liability companies, which entails it has not:
|
|
(i) |
without legitimate cause, remained with no true activity, in conformity with its “statuts” for more than two years;
|
|
(ii) |
remained without due installation and personnel enabling the normal conduct of its business as authorised by the government of the
Principality of Monaco;
|
|
(iii) |
conducted an activity not in conformity with its “statuts”; or
|
|
(iv) |
in any manner or for any reason, allowed non declared or non authorised activities to be undertaken or domiciled in its premises knowingly
tolerated such,
|
19.2 |
Binding obligations
|
|
(a) |
the obligations expressed to be assumed by each Obligor in each Transaction Document to which it is, or is to be, a party are or, when entered
into by it, will be legal, valid, binding and enforceable obligations; and
|
|
(b) |
(without limiting the generality of paragraph (a) above) each Security Document to which an Obligor is, or will be, a party, creates or will
create the Security Interests which that Security Document purports to create and those Security Interests are or will be valid and effective.
|
19.3 |
Non-conflict
|
|
(a) |
any law or regulation applicable to any Obligor;
|
|
(b) |
the Constitutional Documents of any Obligor; or
|
|
(c) |
any agreement or other instrument binding upon any Obligor or its assets,
|
19.4 |
Power and authority
|
|
(a) |
Each Obligor has the power to enter into, perform and deliver and comply with its obligations under, and has taken all necessary actions to
authorise its entry into, performance and delivery of, and compliance with, each Transaction Document to which it is, or is to be, a party and each of the transactions contemplated by those documents.
|
|
(b) |
No limitation on any Obligor’s powers to borrow, create security or give guarantees will be exceeded as a result of any transaction under, or
the entry into of, any Transaction Document to which such Obligor is, or is to be, a party.
|
19.5 |
Validity and admissibility in evidence
|
|
(a) |
All Authorisations required:
|
|
(i) |
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations under each Transaction Document to which it
is a party;
|
|
(ii) |
to make each Transaction Document to which it is a party admissible in evidence in its Relevant Jurisdictions; and
|
|
(iii) |
to ensure that the Transaction Security has the priority and ranking contemplated in the Security Documents,
|
|
(b) |
All Authorisations necessary for the conduct of the business, trade and ordinary activities of each Obligor have been obtained or effected and
are in full force and effect if failure to obtain or effect those Authorisations is reasonably likely to have a Material Adverse Effect.
|
19.6 |
Governing law and enforcement
|
|
(a) |
The choice of governing law of any Transaction Document will be recognised and enforced in each Obligor’s Relevant Jurisdictions.
|
|
(b) |
Any judgment obtained in relation to any Transaction Document in the jurisdiction of the governing law of that Transaction Document will be
recognised and enforced in the relevant Obligor’s Relevant Jurisdictions.
|
19.7 |
No misleading information
|
|
(a) |
Any factual information contained in the Information Package is true and accurate in all material respects as at the date of the relevant
report or document containing the information or (as the case may be) as at the date the information is expressed to be given.
|
|
(b) |
Any financial projection or forecast contained in the Information Package has been prepared on the basis of recent historical information and
on the basis of reasonable assumptions and was fair (as at the date of the relevant report or document containing the projection or forecast) and arrived at after careful consideration.
|
|
(c) |
The expressions of opinion or intention provided by or on behalf of an Obligor for the purposes of the Information Package were made after
careful consideration and (as at the date of the relevant report or document containing the expression of opinion or intention) were fair and based on reasonable grounds.
|
|
(d) |
No event or circumstance has occurred or arisen and no information has been omitted from the Information Package and no information has been
given or withheld that results in the information, opinions, intentions, forecasts or projections contained in the Information Package being untrue or misleading in any material respect.
|
|
(e) |
For the purposes of this clause 19.7,
Information
Package
means any information provided by any Obligor to any of the Finance Parties in connection with the Transaction Documents or the transactions referred to in them.
|
19.8 |
Pari passu ranking
|
19.9 |
Ranking and effectiveness of security
|
|
(a) |
the Transaction Security has (or will have when the relevant Security Documents have been executed) the priority which it is expressed to have
in the Security Documents;
|
|
(b) |
the Charged Property is not subject to any Security Interest other than Permitted Security Interests; and
|
|
(c) |
the Transaction Security will constitute perfected security on the assets described in the Security Documents.
|
19.10 |
Centre of main interests and establishments
|
19.11 |
Ownership of Charged Property
|
19.12 |
No insolvency
|
19.13 |
No filing or stamp taxes
|
19.14 |
Deduction of Tax
|
19.15 |
Tax compliance
|
|
(a) |
No Obligor (other than the Charterer and CSM) is materially overdue in the filing of any Tax returns or overdue in the payment of any amount
in respect of Tax exceeding $500,000 (or its equivalent in any other currency).
|
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against any Obliger (other than the Charterer or CSM)
with respect to Taxes such that a liability of, or claim against, any Obliger (other than the Charterer or CSM) is reasonably likely to arise for an amount for which adequate reserves have not been provided and which are reasonably
expected to have a Material Adverse Effect.
|
|
(c) |
Each Obliger is resident for Tax purposes only in its Original Jurisdiction.
|
19.16 |
Other Tax matters
|
19.17 |
Pension exposure
|
19.18 |
No Default
|
|
(a) |
No Default is continuing or is reasonably expected to result from the making of any Utilisation or the entry into, the performance of, or any
transaction contemplated by, any Transaction Document.
|
|
(b) |
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of
any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on any Obliger or to which any Obliger’s assets
are subject which is likely to have a Material Adverse Effect.
|
19.19 |
No proceedings
|
|
(a) |
No litigation, arbitration or administrative proceedings or investigations of, or before, any court, arbitral body or agency which, if
adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of any Obligor’s
|
|
|
knowledge and belief (having made due and careful enquiry)) been started or threatened against any 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
is reasonably likely to have a Material Adverse Effect has (to the best of any Obligor’s
knowledge and belief (having made due and careful enquiry)) been made against any Obligor or any other Group Member. |
19.20 |
No breach of laws
|
|
(a) |
No Obligor
or
other Group Member has
breached any law or regulation.
|
|
(b) |
No labour dispute is current or, to the best of any Obligor’s knowledge and belief (having made due and careful enquiry), threatened against
any Obligor or other Group Member which is reasonably expected to have a Material Adverse Effect.
|
19.21 |
Environmental matters
|
|
(a) |
No Environmental Law applicable to any Fleet Vessel and/or any Obligor or other Group Member has been violated.
|
|
(b) |
All consents, licences and approvals required under such Environmental Laws have been obtained and are currently in force.
|
|
(c) |
No Environmental Claim has been made or, to the best of any Obligor’s knowledge and belief (having made due and careful enquiry), is
threatened or pending against any Obligor or other Group Member or any Fleet Vessel where that claim might have a Material Adverse Effect and there has been no Environmental Incident which has given, or is reasonably expected to give,
rise to such a claim.
|
19.22 |
Anti-corruption law
|
19.23 |
Security and Financial Indebtedness
|
|
(a) |
No Security Interest exists over all or any of the present or future assets of any Obligor in breach of this Agreement.
|
|
(b) |
No Obligor has any Financial Indebtedness outstanding in breach of this Agreement.
|
19.24 |
Shares
|
|
(a) |
The shares of the Borrower are fully paid and not subject to any option to purchase or similar rights.
|
|
(b) |
The Constitutional Documents of the Borrower do not and could not restrict or inhibit any transfer of those shares on creation or enforcement
of the Security Documents.
|
|
(c) |
There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment
of, any share or loan capital of the Borrower (including any option or right of pre-emption or conversion).
|
19.25 |
Ownership of the Borrower
|
19.26 |
Listing
|
19.27 |
Accounting Reference Date
|
19.28 |
No adverse consequences
|
|
(a) |
It is not necessary under the laws of the Relevant Jurisdictions of any Obligor:
|
|
(i) |
in order to enable any Finance Party to enforce its rights under any Finance Document to which it is, or is to be, a party; or
|
|
(ii) |
by reason of the execution of any Finance Document or the performance by any Obligor of its obligations under any Finance Document,
|
|
(b) |
No Finance Party is or will be deemed to be resident, domiciled or carrying on business in any Relevant Jurisdiction of any Obliger by reason
only of the execution, performance and/or enforcement of any Finance Document.
|
19.29 |
Copies of documents
|
19.30 |
No breach, etc of any Building Contract Document
|
19.31 |
No breach of any Charter Document
|
19.32 |
No Immunity
|
19.33 |
Ship status
|
|
(a) |
registered in the name of the Borrower through the relevant Registry as a ship under the laws and flag of the relevant Flag State;
|
|
(b) |
operationally seaworthy and in every way fit for service;
|
|
(c) |
classed with the relevant Classification free of all requirements and recommendations of the relevant Classification Society; and
|
|
(d) |
insured in the manner required by the Finance Documents.
|
19.34 |
Ship’s employment
|
|
(a) |
have been delivered, and accepted for service, under the Charter; and
|
|
(b) |
save for the Charter, be free of any other charter commitment which, if entered into after that date, would require approval under the Finance
Documents.
|
19.35 |
Address commission
|
19.36 |
Sanctions and Additional Unacceptable Countries
|
|
(a) |
No Obligor, nor any of their respective Affiliates nor any of their respective directors, officers, employees, agents or representatives:
|
|
(i) |
has breached any Sanctions;
|
|
(ii) |
is a Restricted Person; or
|
|
(iii) |
has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions.
|
|
(b) |
No proceeds of the Loan:
|
|
(i) |
shall be made available, directly or indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or
indirectly, applied in a manner or for a purpose prohibited by applicable Sanctions; or
|
|
(ii) |
will be used by any Obliger:
|
|
(A) |
to finance equipment or sectors under embargo decisions of the United Nations or the World Bank; or
|
|
(B) |
in breach of the provisions of any Sanctions.
|
|
(c) |
It is has not been intended that the Ship will enter or trade to any Additional Unacceptable Country.
|
19.37 |
No Money Laundering
|
19.38 |
Times when representations are made
|
|
(a) |
All of the representations and warranties set out in this clause 19 are deemed to be made on the dates of:
|
|
(i) |
this Agreement;
|
|
(ii) |
the Utilisation Request; and
|
|
(iii) |
the Utilisation.
|
|
(b) |
The Repeating Representations are deemed to be made on the first day of each Interest Period.
|
|
(c) |
Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and
circumstances existing at the date the representation or warranty is deemed to be made.
|
20. |
Information undertakings
|
20.1 |
Undertaking to comply
|
20.2 |
Definitions
|
20.3 |
Financial statements
|
|
(a) |
The Borrower shall supply to the Agent (in sufficient copies for all the lenders, if the Agent so requests) as soon as the same become
available, but in any event within 120 days after the end of each Financial Year (but commencing with the Financial Year ending 31 December 2018):
|
|
(i) |
the unaudited (or audited if available) financial statements of the Borrower for that Financial Year; and
|
|
(ii) |
the audited consolidated financial statements of the Guarantor for that Financial Year.
|
|
(b) |
The Borrower shall supply to the Agent as soon as the same become available, but in any event within 90 days after the end of the first
financial half-year of each of its or, as the case may be, the Guarantor’s Financial Years (but commencing with the financial half-year ending 31 December 2018):
|
|
(i) |
the unaudited (or audited if available) financial statements of the Borrower for that financial half-year; and
|
|
(ii) |
the unaudited (or audited if available) consolidated financial statements of the Guarantor for that financial half-year.
|
20.4 |
Provision and contents of Compliance Certificate
|
|
(a) |
The Borrower shall supply (i) a Compliance Certificate for the Borrower and the Guarantor and (ii) a performance report relating to the Ship
(in the form set out in Schedule 6
(Form of Semi-annual Vessel Performance
Report)) to the Agent, in each case with each set of
Annual Financial Statements and each set of Semi-Annual Financial Statements delivered pursuant to clause 20.3
(Financial statements).
|
|
(b) |
Each Compliance Certificate in respect of the Borrower and the Guarantor shall set out (in reasonable detail) computations as to compliance
with clause 21
(Financial covenants)
relevant to each of them and calculations of the Security Value in accordance with clause 27
(Minimum security value).
|
|
(c) |
Each Compliance Certificate shall be signed by a duly authorised signatory of the Guarantor.
|
20.5 |
Requirements as to financial statements
|
|
(a) |
The Borrower shall procure that each set of Annual Financial Statements and Semi-Annual Financial Statements includes a profit and loss
account, a balance sheet and a cashflow statement and that, in addition, each set of Annual Financial Statements of the Borrower shall be audited by the Auditors.
|
|
(b) |
Each set of financial statements delivered pursuant to clause 20.3
(Financial statements)
shall:
|
|
(i) |
be prepared in accordance with GAAP; and
|
|
(ii) |
fairly present, and be certified by a director of the relevant company as fairly presenting, its financial condition and operations as at the
date as at which those financial statements were drawn up and, in the case of the Annual Financial Statements (or as the case may be) Semi-Annual Financial Statements if they are audited, shall be accompanied by any letter addressed to
the management of the relevant company by the Auditors and accompanying those Annual Financial Statements or (as the case may be) Semi-Annual Financial Statements; and
|
|
(iii) |
in the case of Annual Financial Statements or (as the case may be) Semi-Annual Financial Statements which are audited, not be the subject of
any qualification in the Auditors’ opinion.
|
20.6 |
Year-end
|
20.7 |
Information: miscellaneous
|
|
(a) |
whilst an Event of Default is continuing and as soon as practicable after the time when they are dispatched, copies of all documents
dispatched by any Obligor to its creditors generally (or any class of them);
|
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened
or pending against any Obligor
|
|
(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 Obliger or other Group Member and which is reasonably likely to have a Material Adverse Effect;
|
|
(d) |
promptly upon becoming aware of them, the details of any claim, action, suit, proceeding or investigation with respect to Sanctions against
any Obliger or any of its Affiliates or any of its directors, officers, employees, agents or representatives;
|
|
(e) |
promptly, such information as the Agent or the Security Agent may reasonably require about the Charged Property and compliance of the Obligors
with the terms of any Security Documents; and
|
|
(f) |
promptly on request, such further information regarding the financial condition, assets and operations of any Obliger as any Finance Party
through the Agent may reasonably request,
|
20.8 |
Notification of Default
|
|
(a) |
The Borrower shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon any Obligor 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 Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors 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).
|
20.9 |
Sufficient copies
|
20.10 |
“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 an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or
|
|
(iii) |
a proposed assignment by a Lender of any of its rights under this Agreement to a party that is not already a Lender prior to such assignment,
|
|
(b) |
Each Finance Party shall, promptly upon the request of the Agent or the Security Agent, supply, or procure the supply of, such documentation
and other evidence as is reasonably requested by the Agent or the Security Agent (for itself) in order for it to carry out and be satisfied it has complied with all necessary “know you r customer” or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
21. |
Financial covenants
|
21.1 |
Undertaking to comply
|
21.2 |
Financial definitions
|
|
(a) |
cash in hand or on deposit with any bank; and
|
|
(b) |
any other instrument, security or investment approved by the Majority Lenders,
|
21.3 |
Financial condition
|
|
(a) |
Leverage ratio:
the ratio of Total Net
Debt to Fleet Market Value shall , at all times during and in respect of each Measurement Period, be not higher than 0.75:1.00.
|
|
(b) |
Minimum liquidity:
at all times the
Cash and Cash Equivalents shall not be less than the aggregate of:
|
|
(i) |
$750,000 multiplied by the number of the Fleet Vessels; and
|
|
(ii) |
$500,000 multiplied by the number of the Chartered Vessels.
|
21.4 |
Financial testing
|
21.5 |
Minimum Liquidity
|
|
(a) |
subject to paragraph (b) below, $650,000; or
|
|
(b) |
$300,000 for as long as the Ship is subject to a Charter or a Subsequent Charter,
|
22. |
General undertakings
|
22.1 |
Undertaking to comply
|
22.2 |
Use of proceeds
|
22.3 |
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 Agent of,
|
|
(i) |
enable it to perform its obligations under the Transaction Documents;
|
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence of any Transaction Document; and
|
|
(iii) |
carry on its business where failure to do so has, or is reason ably likely to have, a Material Adverse Effect.
|
22.4 |
Compliance with laws
|
22.5 |
Anti-corruption law
|
|
(a) |
No Obligor shall (and each Obligor shall ensure that no other Group Member will) directly or indirectly use the proceeds of the Facility for
any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977, the Monaco Law no.1.362 of August 3
rd
, 2009 as amended and supplemented or other similar legislation in other
jurisdictions.
|
|
(b) |
Each Obligor shall:
|
|
(i) |
conduct its businesses in compliance with applicable anti-corruption laws; and
|
|
(ii) |
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
22.6 |
Bribery and corruption
|
|
(a) |
No Obligor nor any of its agents, employees, directors or officers has engaged or shall engage (and shall ensure that none of its Affiliates
nor any of its agents, employees, directors or officers has engaged or will engage) in any Relevant Jurisdiction in:
|
|
(i) |
Corrupt Practices, Fraudulent Practices, Collusive Practices or Coercive Practices, including the procurement or the execution of any contract
for goods or works relating to its functions;
|
|
(ii) |
Money Laundering or acted in breach of any applicable law relating to Money Laundering; or
|
|
(iii) |
the Financing of Terrorism.
|
|
(b) |
Without prejudice to the generality of clause 22.6(a):
|
|
(i) |
No Obligor nor any of its agents, employees, directors or officers will (and shall ensure that none of its Affiliates nor any of its agents,
employees, directors or officers will) directly or indirectly use the proceeds of the Facility for any purpose which would breach the Bribery Act 2010 or the United States Foreign Corrupt Practices Act of 1977, the Monaco Law no.1.362
of August 3
rd
, 2009 as amended and supplemented;
|
|
(ii) |
each Obligor shall (and each Obligor shall ensure that each of its Affiliates) and any of their agents, employees, directors or officers:
|
|
(A) |
conducts its businesses in compliance with the Bribery Act 2010 or the United States Foreign Corrupt Practices Act of 19 7 7 , the Monaco Law
no.1.362 of August 3ro, 2009 as amended and supplemented; and
|
|
(B) |
maintains policies and procedures designed to promote and achieve compliance with such laws.
|
|
(c) |
For the purposes of this clause 22.6 and clause 19.37
(No Money Laundering),
the following definitions shall apply:
|
|
(i) |
the conversion or transfer of property, knowing it is derived from a criminal offence, for the purpose of concealing or disguising its illegal
origin or of assisting any person who is involved in the commission of the crime to evade the legal consequences of its actions;
|
|
(ii) |
the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property
knowing that it is derived from a criminal offence; or
|
|
(iii) |
the acquisition, possession or use of property knowing at the time of its receipt that it is derived from a criminal offence.
|
22.7 |
Tax compliance
|
|
(a) |
Each Obligor (other than the Charterer and CSM) shall (and shall ensure that each other Group Member will) pay and discharge all Taxes imposed
upon it or its assets within the time period allowed without incurring penalties in excess of $500,000 (or its equivalent in any other currency) in aggregate, unless and only to the extent that:
|
|
(i) |
such payment is being contested in good faith;
|
|
(ii) |
adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest
financial statements delivered to the Agent under clause 20.3
(Financial statements
);
and
|
|
(iii) |
such payment can be lawfully withheld.
|
|
(b) |
Except as approved by the Majority Lenders, each Obliger (other than CSM and the Charterer) shall maintain its residence for Tax purposes in
its Original Jurisdiction and ensure that it is not resident for Tax purposes in any other jurisdiction.
|
22.8 |
Change of business
|
22.9 |
Merger
|
22.10 |
Pension exposure
|
22.11 |
Further assurance
|
|
(a) |
Each Obliger shall promptly do all such acts or execute all such documents (including assignments. transfers. mortgages. charges, notices and
instructions) as the Agent may reasonably specify (and in such form as the Agent or the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
|
(i) |
to perfect the Security Interests created or intended to be created by that Obligor under, or evidenced by, the Security 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 Security Documents) or for the exercise of any rights. powers and remedies of
the Security Agent and/or any other Finance Parties provided by or pursuant to the Finance Documents or by law;
|
|
(ii) |
to confer on the Security Agent and/or any other Finance Parties Security Interests over any property and assets of that Obliger located in
any jurisdiction equivalent or similar to the Security Interest intended to be conferred by or pursuant to the Security Documents;
|
|
(iii) |
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Security Documents; and/or
|
|
(iv) |
to facilitate the accession by a New Lender to any Security Document following an assignment in accordance with clause 32.1
(Assignments by the Lenders).
|
|
(b) |
Each Obliger 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 Agent and/or any other Finance Parties by or pursuant to the Finance Documents.
|
22.12 |
Negative pledge in respect of Charged Property and Obligor shares
|
22.13 |
Environmental matters
|
|
(a) |
The Agent will be notified as soon as reasonably practicable of any Environmental Claim being made against any Obligor or other Group Member
or any Fleet Vessel which, if successful to any extent, is reasonably expected to have a Material Adverse Effect and of any Environmental Incident which may give rise to such a claim and will be kept regularly and promptly informed in
reasonable detail of the nature of, and response to, any such Environmental Incident and the defence to any such claim.
|
|
(b) |
Environmental Laws (and any consents, licences or approvals obtained under them) applicable to Fleet Vessels will not be violated.
|
22.14 |
Sanctions and Additional Unacceptable Countries
|
|
(a) |
Each Obligor shall, and each Obligor shall procure that any Affiliate of each Obligor shall, ensure that none of their respective directors,
officers, agents, employees or persons acting on behalf of the foregoing, is a Restricted Person or acts directly or indirectly on behalf of a Restricted Person.
|
|
(b) |
No Obligor shall, and each Obliger shall procure that none of its Affiliates shall, use any revenue or benefit derived from any activity or
dealing with a Restricted Person in discharging any obligation due or owing to the Finance Parties.
|
|
(c) |
Each Obliger shall not, and each Obliger shall procure that each of its Affiliates will not, credit proceeds from any activity or dealing with
a Restricted Person to any bank account held with any Finance Party in its name or in the name of any other person.
|
|
(d) |
Each Obligor shall, and each Obliger shall ensure that each of its Affiliates take measures to ensure compliance with Sanctions.
|
|
(e) |
Each Obligor shall, and each Obligor shall procure that each of its Affiliates shall, to the extent permitted by law, promptly upon becoming
aware of them, supply to the Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.
|
|
(f) |
The Borrower shall, if it is intended that the Ship will enter or trade to any Additional Unacceptable Country:
|
|
(i) |
promptly, and in any event before the Ship enters into or starts trading with, an Additional Unacceptable Country, notify the Agent in
writing; and
|
|
(ii) |
on demand provide the Agent with any information (in a form acceptable to the Agent in its absolute discretion) the Agent requires in relation
to the Ship and its employment including, without limitation, information regarding the counterparties and the type of business to which such voyage relates.
|
23. |
Construction period
|
23.1 |
Undertaking to comply
|
23.2 |
Performance of Building Contract
|
23.3 |
Progress and information
|
23.4 |
Arbitration under Building Contract
|
|
(a) |
if either party to the Building Contract begins an arbitration under the Building Contract;
|
|
(b) |
of the identity of the arbitrators; and
|
|
(c) |
of the conclusion of the arbitration and the terms of any arbitration award.
|
23.5 |
Notification of certain events
|
24. |
Dealings with Ship
|
24.1 |
Undertaking to comply
|
24.2 |
Ship’s name and registration
|
|
(a) |
The Ship’s name shall only be changed with the prior written consent of the Agent.
|
|
(b) |
The Ship shall be registered with the relevant Registry under the laws of its Flag State. Except with approval, the Ship shall not be
registered under any other flag or at any other port or fly any other flag (other than that of its Flag State). If that registration is for a limited period, it shall be renewed at least 45 days before the date it is due to expire and
the Agent shall be notified of that renewal at least 30 days before that date.
|
|
(c) |
Nothing will be done and no action will be omitted if that might result in such registration being forfeited or imperilled or the Ship being
required to be registered under the laws of another state of registry.
|
24.3 |
Sale or other disposal of Ship
|
24.4 |
Manager
|
24.5 |
Copy of Mortgage on board
|
24.6 |
Notice of Mortgage
|
24.7 |
Conveyance on default
|
24.8 |
Chartering
|
|
(a) |
Except with approval, the Borrower shall not enter into any charter commitment for the Ship (except for the Charter), which is:
|
|
(i) |
a bareboat or demise charter or passes possession and operational control of the Ship to another person;
|
|
(ii) |
of a fixed duration exceeding 13 calendar months;
|
|
(iii) |
on terms as to payment or amount of hire which are materially less beneficial to it than the terms which at that time could reasonably be
expected to be obtained on the open market for vessels of the same age and type as the Ship under charter commitments of a similar type and period; or
|
|
(iv) |
to another Obligor or other Group Member.
|
|
(b) |
Further, without prejudice to the rights of the Finance Parties under the provisions of clause 24.8(a) and any other provisions of the Finance
Documents, advise the Agent promptly of any proposed charter commitment in respect of the Ship of a fixed duration exceeding 13 calendar months, and:
|
|
(i) |
deliver a copy of each such charter commitment to the Agent forthwith after it has been entered into;
|
|
(ii) |
forthwith following a demand made by the Agent (acting on the instruct ions of the Majority Lenders):
|
|
(A) |
execute a charter assignment in the form similar to the Charter Assignment of any such charter commitment in favour of the Security Agent and
any notice of assignment required in connection therewith; and
|
|
(B) |
procure the service of any such notice of assignment on the relevant charterer and, unless expressly freely assignable, the acknowledgement of
such notice by the relevant charterer;
|
|
(iii) |
deliver to the Agent such documents and evidence of the type referred to in Schedule 3
(Conditions precedent),
in relation to any such charter assignment or any other related matter referred to in this clause 24.8(b), as the Agent (acting on the instructions of the
Majority Lenders in their sole discretion) shall require; and
|
|
(iv) |
pay on the Agent’s demand all documented legal costs and other costs incurred by the Agent and/or any other Finance Party in connection with
or in relation to any such charter assignment or any other related matter referred to in this clause 24.8(b).
|
24.9 |
Lay up
|
24.10 |
Sharing of Earnings
|
24.11 |
Payment of Earnings
|
|
(a) |
The Borrower’s Earnings from the Ship shall be paid in the way required by the General Assignment.
|
|
(b) |
If any Earnings are held by brokers or other agents, they shall be paid to the Security Agent, if it requires this after the Earnings have
become payable to it under the General Assignment.
|
25. |
Condition and operation of Ship
|
25.1 |
Undertaking to comply
|
25.2 |
Defined terms
|
25.3 |
Repair
|
25.4 |
Modification
|
25.5 |
Removal of parts
|
25.6 |
Third party owned equipment
|
25.7 |
Maintenance of class; compliance with laws and codes
|
25.8 |
Surveys
|
25.9 |
Inspection and notice of dry-docking
|
25.10 |
Prevention of arrest
|
25.11 |
Release from arrest
|
25.12 |
Information about Ship
|
25.13 |
Notification of certain events
|
|
(a) |
any damage to the Ship where the cost of the resulting repairs is reasonably likely to exceed the Major Casualty Amount;
|
|
(b) |
any occurrence which is reasonably likely to result in the Ship becoming a Total Loss;
|
|
(c) |
any requisition of the Ship for hire;
|
|
(d) |
any Environmental Incident involving the Ship and Environmental Claim being made in relation to such an incident;
|
|
(e) |
any withdrawal of any applicable operating certificate;
|
|
(f) |
the receipt of notification that any application for such a certificate has been refused;
|
|
(g) |
any requirement or recommendation made in relation to the Ship by any insurer or the Classification Society or by any competent authority
which is not, or cannot be, complied with in the manner or time required or recommended; and
|
|
(h) |
any arrest or detention of the Ship or any exercise or purported exercise of a lien or other claim on the Ship or its Earnings or Insurances.
|
25.14 |
Payment of outgoings
|
25.15 |
Evidence of payments
|
|
(a) |
the wages and allotments and the insurance and pension contributions of the Ship’s crew are being timely and regularly paid;
|
|
(b) |
alt deductions from its crew’s wages in respect of any applicable Tax liability are being properly accounted for; and
|
|
(c) |
the Ship’s master has no claim for disbursements other than those incurred by him in the ordinary course of trading on the voyage then in
progress.
|
25.16 |
Repairers’ liens
|
25.17 |
Survey report
|
25.18 |
Lawful use
|
|
(a) |
in any way or in any activity which is unlawful under international law or the domestic laws of any relevant country;
|
|
(b) |
in carrying illicit or prohibited goods;
|
|
(c) |
in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated; or
|
|
(d) |
if there are hostilities in any part of the world (whether war has been declared or not), in carrying contraband goods,
|
25.19 |
War zones
|
26. |
Insurance
|
26.1 |
Undertaking to comply
|
26.2 |
Insurance terms
|
26.3 |
Coverage required
|
|
(a) |
against fire and usual marine risks (including excess risks) and war risks (including war protection and indemnity risks and terrorism risks)
on an agreed value basis, for at least its minimum hull cover and no less than its market value;
|
|
(b) |
against P&I risks for the highest amount then available in the insurance market for vessels of similar age, size and type as the Ship
(but, in relation to liability for oil pollution, for an amount of not less than $1,000,000,000);
|
|
(c) |
against such other risks (excluding loss of hire) and matters which the Agent notifies it that it considers reasonable for a prudent shipowner
or operator to insure against at the time of that notice (having regard to general insurance market practice and law at the time but always excluding any loss of earnings cover); and
|
|
(d) |
on terms which comply with the other provisions of this clause 26.
|
26.4 |
Placing of cover
|
|
(a) |
in the name of the Borrower and (in the case of the Ship’s hull cover) no other person (other than the Security Agent (and any other Finance
Party required by the Agent) if required by the Agent) (unless such other person is approved and, if so required by the Agent, has duly executed and delivered a first priority assignment of its interest in the Ship’s Insurances to the
Security Agent (and any other Finance Party required by the Agent) in an approved form and provided such supporting documents and opinions in relation to that assignment as the Agent requires;
|
|
(b) |
if the Agent so requests, in the joint names of the Borrower and the Security Agent (and any other Finance Party required by the Agent) (and,
to the extent reasonably practicable
|
|
(c) |
in dollars or another approved currency;
|
|
(d) |
arranged through approved brokers or direct with approved insurers or protection and indemnity or war risks associations;
|
|
(e) |
in full force and effect; and
|
|
(f) |
on approved terms and with approved insurers or associations.
|
26.5 |
Deductibles
|
26.6 |
Mortgagee’s insurance
|
|
(a) |
a mortgagee’s interest insurance and a mortgagee’s additional perils (all P&I risks) cover for the benefit of the Finance Parties for an
amount up to 120 per cent of the Loan; and
|
|
(b) |
any other insurance cover which the Agent reasonably requires (having regard to general insurance market practice and law at the time) in
respect of any Finance Party’s interests and potential liabilities (whether as mortgagee of the Ship or beneficiary of the Security Documents).
|
26.7 |
Fleet liens, set off and cancellations
|
|
(a) |
set off against any claims in respect of the Ship any premiums due in respect of any of such other vessels insured; or
|
|
(b) |
cancel that cover because of non-payment of premiums in respect of such other vessels,
|
26.8 |
Payment of premiums
|
26.9 |
Details of proposed renewal of Insurances
|
26.10 |
Instructions for renewal
|
26.11 |
Confirmation of renewal
|
26.12 |
P&I guarantees
|
26.13 |
Insurance documents
|
26.14 |
Letters of undertaking
|
26.15 |
Insurance Notices and Loss Payable Clauses
|
26.16 |
Insurance correspondence
|
26.17 |
Qualifications and exclusions
|
26.18 |
Independent report
|
26.19 |
Collection of claims
|
26.20 |
Employment of Ship
|
26.21 |
Declarations and returns
|
26.22 |
Application of recoveries
|
26.23 |
Settlement of claims
|
26.24 |
Change in insurance requirements
|
27. |
Minimum security value
|
27.1 |
Undertaking to comply
|
27.2 |
Valuation of assets
|
27.3 |
Valuation frequency
|
27.4 |
Expenses of valuation
|
27.5 |
Valuations procedure
|
27.6 |
Currency of valuation
|
27.7 |
Basis of valuation
|
|
(a) |
without physical inspection;
|
|
(b) |
on the basis of a sale for prompt delivery for a price payable in full in cash on delivery at arm’s length on normal commercial terms between
a willing buyer and a willing seller; and
|
|
(c) |
without taking into account the benefit of any charter commitment.
|
27.8 |
Information required for valuation
|
27.9 |
Approval of valuers
|
27.10 |
Appointment of Approved Valuers
|
27.11 |
Number of valuers
|
|
(a) |
Each valuation must be carried out by two (2) Approved Valuers one of whom shall be nominated by the Borrower. If the Borrower fails to
promptly nominate an Approved Valuer within fifteen (15) Business Days of the Agent’s request, then the Agent may nominate that Approved Valuer.
|
|
(b) |
If the two (2) Approved Valuers provide valuations and the higher of the two valuations of the Ship exceeds the other one by more than twenty
per cent, then the value of the Ship shall be determined by reference to those two valuations and a third valuation provided by a third Approved Valuer nominated by the Agent.
|
27.12 |
Differences in valuations
|
|
(a) |
Subject to clause 27.11
(Number of valuers),
if valuations of the Ship provided by each Approved Valuer differ, the value of the Ship for the purposes of the Finance Documents will be the mean average of those valuations.
|
|
(b) |
If a single Approved Valuer provides a range of values for the Ship, its value, for the purposes of the Finance Documents, will be the mean
average of the values comprising such range.
|
27.13 |
Security shortfall
|
|
(a) |
If at any time, the Security Value is less than the Minimum Value, the Agent may, and shall, if so directed by the Majority Lenders, by notice
to the Borrower require that such deficiency be remedied. The Borrower shall then within 14 Business Days of receipt of such notice ensure that the Security Value equals or exceeds the Minimum Value either by:
|
|
(i) |
providing additional security over other assets approved by the Majority Lenders in accordance with this clause 27; or
|
|
(ii) |
prepaying under clause 7.4
(Voluntary
prepayment)
(but on five Business Days’ notice instead of the period required by such clause) a corresponding amount of the Loan.
|
27.14 |
Creation of additional security
|
|
(a) |
that additional security, its value and the method of its valuation have been approved by the Majority Lenders to the extent that the method
of its valuation has not already been approved pursuant to clause 27.5 (
Valuations procedure
);
|
|
(b) |
a Security Interest over that security has been constituted in favour of the Security Agent or (if appropriate) the Finance Parties in an
approved form and manner;
|
|
(c) |
this Agreement has been unconditionally amended in such manner as the Agent reasonably requires in consequence of that additional security
being provided; and
|
|
(d) |
the Agent, or its duly authorised representative, has received such documents and evidence it may require in relation to that amendment and
additional security including documents and evidence of the type referred to in Schedule 3
(Conditions precedent)
in relation to
that amendment and additional security and its execution and (if applicable) registration.
|
28. |
Chartering undertakings
|
28.1 |
Undertaking to comply
|
28.2 |
Variations
|
28.3 |
Releases and waivers
|
28.4 |
Termination by the Borrower
|
28.5 |
Charter performance
|
28.6 |
Notice of assignment
|
|
(a) |
subject to paragraph (b) below, shall ensure that the Agent receives a copy of that notice acknowledged by each addressee; or
|
|
(b) |
if such Charter Documents are freely assignable, the Borrower shall use commercially reasonable efforts to ensure that the Agent receives a
copy of that notice acknowledged by each addressee,
|
28.7 |
Payment of Charter Earnings
|
29. |
Bank accounts
|
29.1 |
Undertaking to comply
|
29.2 |
Operating Account
|
|
(a) |
The Borrower shall be the holder of one Account with an Account Bank which is designated as the “Operating Account” for the purposes of the
Finance Documents.
|
|
(b) |
The Earnings and all moneys payable to the Borrower under the Insurances shall be paid by the persons from whom they are due to the Operating
Account unless required to be paid to the Security Agent under the Finance Documents.
|
|
(c) |
The Borrower shall not withdraw amounts standing to the credit of an Operating Account except as permitted by paragraph (d) below.
|
|
(d) |
If there is no continuing Event of Default and subject always to clause 21.5
(Minimum Liquidity),
the Borrower may withdraw the following amounts from an Operating Account for:
|
|
(i) |
payments of the reasonably incurred and documented costs and expenses of insuring, repairing, operating, trading and maintaining the Ship;
|
|
(ii) |
payments then due to Finance Parties under the Finance Documents (other than payments due in respect of a prepayment);
|
|
(iii) |
without prejudice to paragraph (i) above, payments then due in respect of the price of goods or services purchased by the Borrower for the
purpose of operating the Ship (including ship management services);
|
|
(iv) |
payments to purchase other currencies in amounts and at times required to make payments referred to above in the currency in which they are
due;
|
|
(v) |
prepayments to be made pursuant to clause 7.2
(Additional Minimum Value prepayment);
and
|
|
(vi) |
payments of dividends to the extent permitted by clause 30.13
(Distributions and other payments).
|
29.3 |
Other provisions
|
|
(a) |
An Account may only be designated for the purposes described in this clause 29 if:
|
|
(i) |
such designation is made in writing by the Agent and acknowledged by the Borrower and specifies the name and address of the Account Bank and
the number and any designation or other reference attributed to the Account;
|
|
(ii) |
an Account Security has been duly executed and delivered by the Borrower in favour of the Security Agent (and any other Finance Party required
by the Agent);
|
|
(iii) |
any notice required by the Account Security to be given to an Account Bank has been given to, and acknowledged by, the Account Bank in the
form required by the relevant Account Security; and
|
|
(iv) |
the Agent, or its duly authorised representative, has received such documents and evidence it may require in relation to the Account and the
Account Security including documents and evidence of the type referred to in Schedule 3
(Conditions precedent)
in relation to the
Account and the relevant Account Security.
|
|
(b) |
The rates of payment of interest and other terms regulating any Account will be a matter of separate agreement between the Borrower and an
Account Bank.
|
|
(c) |
If an Account is a fixed term deposit account, the Borrower may select the terms of deposits until the relevant Account Security has become
enforceable and the Security Agent directs otherwise.
|
|
(d) |
The Borrower shall not close any Account or alter the terms of any Account from those in force at the time it is designated for the purposes
of this clause 29 or waive any of its rights in relation to an Account except with approval.
|
|
(e) |
The Borrower shall deposit with the Security Agent all certificates of deposit, receipts or other instruments or securities relating to any
Account, notify the Security Agent of any claim or notice relating to an Account from any other party and provide the Agent with any other information it may reasonably request concerning any Account.
|
|
(f) |
Each of the Agent and the Security Agent agrees that if it is an Account Bank in respect of an Account then there will be no restrictions on
creating a Security Interest over that Account as contemplated by this Agreement and it shall not (except with the approval of the Majority Lenders) exercise any right of combination, consolidation or set-off which it may have in
respect of that Account in a manner adverse to the rights of the other Finance Parties.
|
30. |
Business restrictions
|
30.1 |
Undertaking to comply
|
30.2 |
General negative pledge
|
|
(a) |
In this clause 30.2, Quasi-Security means an arrangement or transaction described in paragraph (c) below.
|
|
(b) |
The Borrower shall not create or permit to subsist any Security Interest over any of its assets except for Permitted Security Interests.
|
|
(c) |
(Without prejudice to clauses 30.3
(Financial
Indebtedness)
and 30.7
(Disposals)),
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, an Obligor or any
other Group Member;
|
|
(ii) |
sell, transfer, factor 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,
|
|
(d) |
Paragraphs (b) and (c) above do not apply to any Security Interest or (as the case may be) Quasi-Security listed below:
|
|
(i) |
those granted or expressed to be granted by any of the Security Documents; and
|
|
(ii) |
in relation to the Ship, Permitted Maritime Liens.
|
30.3 |
Financial Indebtedness
|
|
(a) |
Financial Indebtedness incurred under the Finance Documents;
|
|
(b) |
Financial Indebtedness permitted under clause 30.4
(Guarantees);
and
|
|
(c) |
Financial Indebtedness permitted under clause 30.5
(Loans and credit).
|
30.4 |
Guarantees
|
30.5 |
Loans and credit
|
30.6 |
Bank accounts, operating leases and other financial transactions
|
|
(a) |
maintain any current or deposit account with a bank or financial institution except for the Operating Account and the deposit of money,
operation of current accounts and the conduct of electronic banking operations through the Operating Account;
|
|
(b) |
hold cash in any account (other than the Operating Account) over or in respect of which any set-off, combination of accounts, netting or
Security Interest exists;
|
|
(c) |
enter into any obligations under operating leases relating to assets; or
|
|
(d) |
be party to any transaction, whether on or off balance sheet, that is not expressly permitted under this Agreement.
|
30.7 |
Disposals
|
30.8 |
Contracts and arrangements with Affiliates
|
30.9 |
Subsidiaries
|
30.10 |
Acquisitions and investments
|
|
(a) |
acquisitions of assets in the ordinary course of business (not being new businesses or vessels);
|
|
(b) |
capital expenditures or investments related to the maintenance of the Ship in the ordinary course of its business;
|
|
(c) |
the incurrence of liabilities in the ordinary course of its business;
|
|
(d) |
pursuant to any Finance Document or the Charter Documents or the Building Contract Documents to which it is party.
|
30.11 |
Reduction of capital
|
30.12 |
Increase in capital
|
30.13 |
Distributions and other payments
|
|
(a) |
declare or pay (including by way of set-off, combination of accounts or otherwise) any dividend, charge, fee or other distribution (or
interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital) or any warrants for the time being in issue;
|
|
(b) |
repay or distribute any dividend or share premium reserve;
|
|
(c) |
pay any management, advisory or other fee to or to the order of any of the shareholders of the Guarantor;
|
|
(d) |
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so; or
|
|
(e) |
make any payment (including by way of set-off, combination of accounts or otherwise) by way of interest, or repayment, redemption, purchase or
other payment, in respect of any shareholder loan, loan stock or similar instrument,
|
|
(i) |
no repayment of the Loan is required under clause 7.2(a)(i)
(Additional Minimum Value prepayment),
no Default is continuing at that time, no Default would result from the declaration or payment of the same and the Lenders’ prior written approval has been obtained;
or
|
|
(ii) |
a prepayment of the Loan is made in accordance with clause 7.2(a)(ii)
(Additional Minimum Value Prepayment),
no Default is continuing at that time and no Default would result from the declaration or payment of the same.
|
31. |
Events of Default
|
31.1 |
Each of the events or circumstances set out in this clause 31 (except clause 31.25
(Acceleration))
is an Event of Default.
|
31.2 |
Non-payment
|
|
(a) |
its failure to pay is caused by administrative or technical error or by a Disruption Event; and
|
|
(b) |
payment is made within three (3) Business Days of its due date.
|
31.3 |
Financial covenants
|
31.4 |
Value of security
|
31.5 |
Insurance
|
|
(a) |
The Insurances of the Ship are not placed and kept in force in the manner required by clause 26
(Insurance).
|
|
(b) |
Any insurer either:
|
|
(i) |
cancels any such Insurances; or
|
|
(ii) |
disclaims liability under them or asserts that its liability under them is or should be reduced by reason of any mis-statement or failure or
default by any person.
|
31.6 |
Other obligations
|
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in clause 31.2
(Non-payment),
clause 31.3
(Financial covenants),
clause
31.4
(Value of security),
clause 31.5
(Insurance)
or in any of the other sub-clauses of this clause 31).
|
|
(b) |
No Event of Default under paragraph (a) above will occur if the Agent considers that the failure to comply is capable of remedy and the
failure is remedied within five Business Days of the earlier of (A) the Agent giving notice to the Borrower and (B) the Borrower or any other Obligor becoming aware of the failure to comply.
|
31.7 |
Misrepresentation
|
31.8 |
Cross default
|
|
(a) |
Any Financial Indebtedness of any Obligor (other than the Charterer or CSM) is not paid when due nor within any originally applicable grace
period.
|
|
(b) |
Any Financial Indebtedness of any Obligor (other than the Charterer or CSM) 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 (other than the Charterer or CSM) is cancelled or suspended by a creditor of that
Obligor as a result of an event of default (however described).
|
|
(d) |
The counterparty to a Treasury Transaction entered into by the Guarantor becomes entitled to terminate that Treasury Transaction early by
reason of an event of default (however described).
|
|
(e) |
An Event of Default will only occur under this clause 31.8 if the aggregate amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within this clause 31.8 is more than $500,000 (or its equivalent in any other currency) in the case of the Borrower and $5,000,000 in the case of the Guarantor (or its equivalent in any other currency).
|
|
(f) |
Any creditor of any Obligor (other than the Charterer or CSM) becomes entitled to declare any Financial Indebtedness of that Obligor due and
payable prior to its specified maturity as a result of an event of default (however described).
|
31.9 |
Insolvency
|
|
(a) |
An Obligor (other than CSM):
|
|
(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 without the consent of the affected creditor(s) or threatens to suspend making payments on any of its debts; or
|
|
(iv) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance
Party in its capacity as such) with a view to rescheduling all or substantially all of its Financial Indebtedness.
|
|
(b) |
The value of the assets of any Obligor (other than the Charterer or CSM) is less than its Total Debt.
|
|
(c) |
A moratorium is declared in respect of any indebtedness of any Obligor exceeding in the case of the Guarantor $1,500,000 (or its equivalent in
any other currency) in aggregate.
|
31.10 |
Insolvency proceedings
|
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
|
(i) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any Obligor (other than CSM);
|
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of any Obligor (other than CSM);
|
|
(iii) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of
any Obligor (other than CSM) or any of its assets (including the directors of any Obliger (other than CSM) requesting a person to appoint any such officer in relation to it or any of its assets); or
|
|
(iv) |
enforcement of any Security Interest over any assets of any Obligor (other than the Guarantor and CSM) or over any assets of the Guarantor
having a value in excess of $1,500,000 (or its equivalent in any other currency) in aggregate,
|
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition (or analogous procedure or step) which is frivolous or vexatious and is
discharged, stayed or dismissed within seven days of commencement or, if earlier, the date on which it is advertised.
|
31.11 |
Creditors’ process
|
|
(a) |
Any expropriation, attachment, sequestration, distress, execution or any other analogous process or enforcement action (including enforcement
by a landlord) affects any asset or assets of any Obligor (other than CSM) (having in the case of the Guarantor a value in excess of $1,500,000 (or its equivalent in any other currency) in aggregate) and is not discharged within seven
days.
|
|
(b) |
Any judgment or order is made against any Obligor (other than CSM) or any other Group Member and is not stayed or complied with within fifteen
days.
|
31.12 |
Unlawfulness and invalidity
|
|
(a) |
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or any Transaction Security ceases to
be effective.
|
|
(b) |
Any obligation or obligations of any Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal,
valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents.
|
|
(c) |
Any Finance Document or any Transaction Security ceases to be in full force and effect or ceases to be legal, valid, binding, enforceable or
effective or is alleged by a party to it (other than a Finance Party) to be ineffective for any reason.
|
|
(d) |
Any Security Document does not create legal, valid, binding and enforceable security over the assets charged under that Security Document or
the ranking or priority of such security is adversely affected.
|
31.13 |
Cessation of business
|
31.14 |
Ownership of the Borrower
|
31.15 |
Expropriation
|
31.16 |
Repudiation and rescission of Finance Documents
|
31.17 |
Litigation
|
|
(a) |
any litigation, alternative dispute resolution, arbitration or administrative, governmental, regulatory or other investigations, proceedings
or disputes are commenced or threatened; or
|
|
(b) |
any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body is
made,
|
31.18 |
Material Adverse Effect
|
31.19 |
Security enforceable
|
31.20 |
Arrest of Ship
|
31.21 |
Ship registration
|
31.22 |
Political risk
|
|
(a) |
Either (1) the Flag State or any Relevant Jurisdiction of an Obligor becomes involved in hostilities or civil war or (2) there is a seizure of
power in the Flag State or any such Relevant Jurisdiction by unconstituitonal means and (in either such case) in the opinion of the Agent such event or circumstance, has or is reasonably likely to have, a Material Adverse Effect.
|
|
(b) |
No Event of Default under paragraph (a) above will occur if:
|
|
(i) |
in the opinion of the Agent it is practicable for action to be taken by the Borrower to prevent the relevant event or circumstance having a
Material Adverse Effect; and
|
|
(ii) |
the Borrower takes such action to the Agent’s satisfaction within 14 days of notice from the Agent (specifying the relevant action to be
taken) to do so.
|
31.23 |
Existing Agreement Events
|
31.24 |
Sanctions
|
|
(a) |
Any of the Obligors or any Affiliate of any of them or any of their respective directors, officers, agents, employees or other persons acting
on behalf of the foregoing, becomes a Restricted Person or becomes owned or controlled by, or acts directly or indirectly on behalf of, a Restricted Person or any of such persons becomes the owner or controller of a Prohibited Person;
or
|
|
(b) |
Any proceeds of the Loan are made available, directly
or
indirectly , to or for the benefit of a Restricted Person or otherwise is, directly or indirectly, applied in a manner or for a purpose prohibited by applicable Sanctions; or
|
|
(c) |
Any Obligor or any of their respective Affiliates or any of their respective directors, officers, agents, employees or other persons acting on
behalf of the foregoing, is not in compliance with all applicable Sanctions.
|
31.25 |
De-listing or suspension of trading
|
31.26 |
Acceleration
|
|
(a) |
by notice to the Borrower:
|
|
(i) |
declare that no withdrawals be made from any Account;
|
|
(ii) |
cancel the Total Commitments at which time they shall immediately be cancelled;
|
|
(iii) |
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, at which time they shall become immediately due and payable; and/or
|
|
(iv) |
declare that all or part of the Loan be payable on demand, at which time it shall immediately become payable on demand by the Agent on the
instructions of the Majority Lenders; and/or
|
|
(b) |
exercise or direct the Security Agent and/or any other beneficiary of the Security Documents to exercise any or all of its rights, remedies,
powers or discretions under the Finance Documents.
|
32. |
Changes to the Lenders
|
32.1 |
Assignments by the Lenders
|
32.2 |
Other conditions of assignment
|
|
(a) |
An assignment will only be effective:
|
|
(i) |
on receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will
assume the same obligations to the Borrower and the other Finance Parties as it would have been under if it was an Original Lender;
|
|
(ii) |
on the New Lender entering into any documentation required for it to accede as a party to any Security Document to which the Existing Lender
is a party in its capacity as a Lender and, in relation to such Security Documents, completing any filing, registration or notice requirements;
|
|
(iii) |
on the performance by the Agent of all necessary “know your customer” or similar checks under all applicable laws and regulations relating to
any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender; and
|
|
(iv) |
if that Existing Lender assigns equal fractions of its Commitment and participation in the Loan and each Utilisation (if any) under the
Facility.
|
|
(b) |
Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the 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 the Finance Documents on or prior to the date on which the assignment becomes effective in accordance
with the Finance Documents and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
32.3 |
Fee and expenses
|
|
(a) |
all costs and expenses (including legal fees) reasonably incurred by the Agent or the Security Agent in connection with any such assignment;
and
|
|
(b) |
any cost, loss or liability the Agent or the Security Agent incurs in relation to all stamp duty, registration and other similar Taxes payable
in respect of any such assignment.
|
32.4 |
Transfer costs and expenses relating to security
|
|
(a) |
all costs and expenses (including legal fees) reasonably incurred by the Agent or the Security Agent to facilitate the accession by the New
Lender to, or assignment or transfer to the New Lender of, any Security Document and/or the benefit of any Security Document and any appropriate registration of any such accession or assignment or transfer; and
|
|
(b) |
any cost, loss or liability the Agent or the Security Agent incurs in relation to all stamp duty, registration and other similar Taxes payable
in respect of any such accession, assignment or transfer.
|
32.5 |
Limitation of responsibility of Existing Lenders
|
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibliity to a New Lender
for:
|
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
|
|
(ii) |
the financial condition of any Obligor;
|
|
(iii) |
the performance and observance by any Obligor or any other person of its obligations under the Finance Documents or any other documents;
|
|
(iv) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents; or
|
|
(v) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of:
|
|
(A) |
the financial condition and affairs of the Obligors and their related entities in connection with its participation in this Agreement; and
|
|
(B) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents,
|
|
(ii) |
will continue to make its own independent appraisal of the application of any Basel II Regulation or Basel III Regulation to the transactions
contemplated by the Finance Documents; and
|
|
(iii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or
may be outstanding under the Finance Documents or any Commitment is in force.
|
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
|
(i) |
accept a re-assignment from a New Lender of any of the rights assigned under this clause 32; or
|
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obliger of its obligations under
any Transaction Document or by reason of the application of any Basel II Regulation to the transactions contemplated by the Transaction Documents or otherwise.
|
32.6 |
Procedure available for assignment
|
|
(a) |
Subject to the conditions set out in clause 32.2
(Other conditions of assignment)
an assignment may be effected in accordance with paragraph (d) below when (a) the Agent executes an otherwise duly completed Transfer Certificate and (b) the Agent executes any
document required under paragraph (a) of clause 32.2
(Other conditions of assignment)
which it may be necessary for it to execute
in each case delivered to it by the Existing Lender and the New Lender duly executed by them an d, in the case of any such other document, any other relevant person. The Agent shall, subject to paragraph (b)
below, as soon as reasonably practicable after receipt by it of a Transfer Certificate and any such other document each duly completed, appearing on
its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate and such other document.
|
|
(b) |
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
|
(c) |
The Obligors who are Parties and the other Finance Parties irrevocably authorise the Agent to execute any Transfer Certificate on their behalf
without any consultation with them.
|
|
(d) |
On the Transfer Date:
|
|
(i) |
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the
assignment in the Transfer Certificate;
|
|
(ii) |
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the
Relevant Obligations
)
and
expressed to be the subject of the release in the Transfer Certificate (but the obligations owed by the Obligors under the Finance Documents shall not be released); and
|
|
(iii) |
the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.
|
|
(e) |
Lenders may utilise procedures other than those set out in this clause 32.6 to assign their rights under the Finance Documents (but not,
without the consent of the relevant Obligor or unless in accordance with this clause 32.6 to obtain a release by that Obliger from the obligations owed to that 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 32.2
(Other conditions of assignment).
|
32.7 |
Copy of Transfer Certificate to Borrower
|
32.8 |
Security over Lenders’ rights
|
|
(a) |
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
|
(b) |
any charge, assignment or other Security Interest 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
other Security Interest for the Lender as a party to any of the Finance Documents; or
|
|
(ii) |
require any payments to be made by an Obliger 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.
|
33. |
Changes to the Obligors
|
34. |
Roles of Agent, Security Agent and Arranger
|
34.1 |
Appointment of the Agent and Security Agent
|
|
(a) |
the Agent to act as its agent under and in connection with the Finance Documents; and
|
|
(b) |
the Security Agent to act as its agent and as trustee under the Security Documents.
|
34.2 |
Security Agent as trustee
|
34.3 |
Authorisation of Agent and Security Agent
|
|
(a) |
to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to
the Agent or (as the case may be) the Security Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and
|
|
(b) |
to execute each of the Security Documents and all other documents that may be approved by the Majority Lenders for execution by it.
|
34.4 |
Instructions to Agent and the Security Agent
|
|
(a) |
The Agent and the Security Agent shall:
|
|
(i) |
subject to paragraphs (d) and (e) below, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent
or (as the case may be) the Security Agent in accordance with any instructions given to it by:
|
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
|
(B) |
in all other cases, the Majority Lenders; and
|
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above (or, if the relevant
Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).
|
|
(b) |
The Agent and the Security 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 Agent or (as the case may be) the Security Agent may
refrain from acting unless and until it receives those Instructions or that clarification.
|
|
(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 Agent or (as the case may be) the Security Agent by the Majority Lenders shall override any conflicting instructions given by any
other Parties and will be binding on all Finance Parties.
|
|
(d) |
Paragraph (a) above shall not apply:
|
|
(i) |
where a contrary indication appears in a Finance Document;
|
|
(ii) |
where a Finance Document requires the Agent or the Security Agent to act in a specified manner or to take a specified action;
|
|
(iii) |
in respect of any provision which protects the Agent’s or the Security Agent’s own position in its personal capacity as opposed to its role of
the Agent or the Security Agent for the Finance Parties including, without limitation, clause 34.9
(No duty to account)
to clause
34.14
(Exclusion of liability),
clause 34.19
(Confidentiality)
to clause 35.6
(Custodians and nominees)
and clauses 35.9
(Acceptance of title)
to 35 .12
(Disapplication
of Trustee Acts).
|
|
(e) |
If giving effect to instructions given by any other Finance Party or group of Finance Parties would (in the Agent’s or (as the case may be)
the Security Agent’s opinion) have an effect equivalent to an amendment or waiver which is subject to clause 46
(Amendments and waivers),
the Agent or (as the case may be) the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than itself) whose consent would have been required in
respect of that amendment or waiver.
|
|
(f) |
The Agent or the Security Agent may refrain from acting in accordance with any instructions of any other 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.
|
|
(g) |
Without prejudice to the provisions of clause 36
(Enforcement of Transaction Security)
and the remainder of this clause 34, in the absence of instructions, the Agent and the Security Agent may act (or refrain from acting) as it considers to be in the best interest
of the Lenders.
|
34.5 |
Legal or arbitration proceedings
|
34.6 |
Duties of the Agent and the Security Agent
|
|
(a) |
The Agent’s and the Security Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
|
(b) |
Subject to paragraph (c) below, the Agent or (as the case may be) the Security Agent shall promptly:
|
|
(i) |
(in the case of the Security Agent) forward to the Agent a copy of any document received by the Security Agent from any Obligor under any
Finance Document; and
|
|
(ii) |
forward to a Party the original or a copy of any document which is delivered to the Agent or (as the case may be) the Security Agent for that
Party by any other Party.
|
|
(c) |
Without prejudice to clause 32.7
(Copy of
Transfer Certificate to Borrower),
paragraph (b) above shall not apply to any Transfer Certificate.
|
|
(d) |
Except where a Finance Document specifically provides otherwise, neither the Agent nor the Security Agent is obliged to review or check the
adequacy, accuracy or completeness of any document it forwards to another Party.
|
|
(e) |
Without prejudice to clause 37.10
(Notification
of prescribed events),
if the Agent or the Security Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the
other Finance Parties.
|
|
(f) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the
Agent or the Arranger or the Security Agent for their own account) under this Agreement, it shall promptly notify the other Finance Parties.
|
|
(g) |
The Agent shall provide to the Borrower within five Business Days of a request by the Borrower (but no more frequently than once per calendar
month), a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments and the address (and the department or officer, if any, for whose attention any
communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the
sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each
Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents.
|
|
(h) |
The Agent and 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).
|
34.7 |
Rote of the Arranger
|
34.8 |
No fiduciary duties
|
34.9 |
No duty to account
|
34.10 |
Business with the Group
|
34.11 |
Rights and discretions of the Agent and the Security Agent
|
|
(a) |
The Agent and 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 Lenders or other Finance Parties or any group of Lenders or other 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) |
in the case of the Security Agent, 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 Agent and the Security Agent may assume (unless it has received notice to the contrary in its capacity as agent or (as the case may be)
security trustee for the other Finance Parties) that:
|
|
(i) |
no Notifiable Debt Purchase Transaction:
|
|
(A) |
has been entered into;
|
|
(B) |
has been terminated; or
|
|
(C) |
has ceased to be with a Borrower Affiliate;
|
|
(ii) |
no Default has occurred (unless (in the case of the Agent) it has actual knowledge of a Default arising under clause 31.2
(Non-payment));
|
|
(iii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
|
(iv) |
any notice or request made by the Borrower (other than (in the case of the Agent) the Utilisation Request) is made on behalf of and with the
consent and knowledge of all the Obligors.
|
|
(c) |
Each of the Agent and the Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, insurance
consultants, ship managers, valuers, surveyors or other professional advisers or experts.
|
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, each of the Agent and the Security Agent may at any time
engage and pay for the services of any lawyers to act as independent counsel to it (and so separate from any lawyers instructed by the Lenders or any other Finance Party) if it, in its reasonable opinion, deems this to be necessary.
|
|
(e) |
Each of the Agent and the Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, insurance consultants,
ship managers, valuers, surveyors or other professional advisers or experts (whether obtained by it 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 Agent, the Security Agent, any Receiver and any Delegate may act in relation to the Finance Documents, the Transaction Security 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 any Finance Document expressly specifies otherwise, the Agent or the Security Agent may disclose to any other Party any information it
reasonably believes it has received as agent or security trustee under this Agreement.
|
|
(h) |
Without prejudice to the generality of paragraph (g) above, the Agent:
|
|
(i) |
may disclose; and
|
|
(ii) |
on the written request of the Borrower or the Majority Lenders shall, as soon as reasonably practicable, disclose
|
|
(i) |
Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Security Agent nor the Arranger is 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, neither the Agent nor the Security Agent is 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.
|
|
(k) |
Neither the Agent nor the Arranger shall be obliged to request any certificate, opinion or other information under clause 20
(Information undertakings)
unless so required in writing by a Lender, in which case the Agent shall promptly make the appropriate
request of the Borrower if such request would be in accordance with the terms of this Agreement.
|
34.12 |
Responsibility for documentation and other matters
|
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Security Agent, the Arranger,
an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement , arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document;
|
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Transaction Security or any other
agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document, the Transaction Security or the Security Property;
|
|
(c) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
|
(d) |
(in the case of the Security Agent) any loss to the Security Property arising in consequence of the failure, depreciation or loss of any
Charged Property or any investments made or retained in good faith or by reason of any other matter or thing;
|
|
(e) |
the failure of any Obligor or any other party to perform its obligations under any Transaction Document or the financial condition of any such
person;
|
|
(f) |
(save as otherwise provided in this clause 34) taking or omitting to take any other action under or in relation to the Security Documents;
|
|
(g) |
any other beneficiary of a Security Document failing to perform or discharge any of its duties or obligations under any Finance Document; or
|
|
(h) |
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may
be regulated or prohibited by any applicable law or regulation relating to insider dealing or otherwise.
|
34.13 |
No duty to monitor
|
|
(a) |
whether or not any Default has occurred;
|
|
(b) |
as to the performance, default or any breach by any Party or any Obligor of its obligations under any Finance Document; or
|
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
34.14 |
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 Agent, the Security Agent, any Receiver or Delegate), none of the Agent, the Security Agent, any Receiver nor any Delegate will be liable (including, without limitation, for negligence or any other category of liability
whatsoever) 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
|
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance 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 Finance Document or the Security Property;
|
|
(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, losses, any diminution in value or any liability
whatsoever arising as a result of:
|
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
|
(b) |
No Party (other than the Agent, the Security Agent, that Receiver or that Delegate (as applicable)) may take any proceedings against any
officer, employee or agent of the Agent, the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Agent, the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind
by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Agent, the Security Agent, a Receiver or a Delegate may rely on this clause subject to clause
1.4
(Third party rights)
and the provisions of the Third Parties Act.
|
|
(c) |
Neither of the Agent or the Security Agent will 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 it if it 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
it for that purpose.
|
|
(d) |
Nothing in any Finance Document shall oblige the Agent, the Security Agent or the Arranger to carry out
|
|
(i) |
any “know your customer” or other checks in relation to any person; or
|
|
(ii) |
any check on the extent to which any transaction contemplated by any of the Finance Documents might be unlawful for any Finance Party or for
any Affiliate of any Finance Party,
|
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Agent, the Security Agent, any Receiver
or any Delegate, any liability of the Agent, the Security Agent, any Receiver or any Delegate arising under or in connection with any Finance 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 Agent, the Security Agent, Receiver or Delegate (as the case may be) 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 Agent, the Security Agent, Receiver or Delegate (as the case may be) at any time which increase the amount of that loss. In no event
shall the Agent, the Security Agent, any Receiver or any 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 Agent, the Security Agent, Receiver or Delegate (as the case may be) has been advised of the possibility of such loss or damages.
|
34.15 |
Lenders’ indemnity to the Agent and others
|
|
(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 being reduced to zero) indemnify the Agent, the Security Agent, every Receiver and every Delegate, within three Business Days of demand, against any Losses (including, without limitation, for
negligence or any other category of liability whatsoever) incurred by any of them (otherwise than by reason of the relevant Agent’s, Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct) (or, in the
circumstances contemplated pursuant to clause 40.11
(Disruption to payment systems etc,
notwithstanding the Agent’s negligence,
gross negligence, or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent, Security Agent, Receiver or Delegate under, or exercising any authority conferred under,
the Finance Documents (unless the relevant Agent, Security Agent, Receiver or Delegate has been reimbursed by an Obliger 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 Agent
or the Security Agent or any Receiver or Delegate pursuant to paragraph (a) above.
|
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a
liability of the Agent or the Security Agent to an Obligor.
|
34.16 |
Resignation of the Agent or the Security Agent
|
|
(a) |
The Agent or 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 Agent or 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 Agent or Security Agent.
|
|
(c) |
If the Majority Lenders have not appointed a successor Agent or Security Agent in accordance with paragraph (b) above within 20 days after
notice of resignation was given, the retiring Agent or Security Agent (after consultation with (in the case of the Agent) the Borrower or (in the case of the Security Agent) the Agent) may appoint a successor Agent or Security Agent.
|
|
(d) |
If the Agent or Security Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain
as agent or trustee and the
|
|
(e) |
The retiring Agent or Security Agent shall make available to the successor Agent or Security Agent such documents and records and provide such
assistance as the successor Agent or Security Agent may reasonably request for the purposes of performing its functions as Agent or (as the case may be) Security Agent under the Finance Documents. The Borrower shall, within three
Business Days of demand, reimburse the retiring Agent or (as the case may be) Security Agent for the amount of all costs and expenses (including legal fees) (together with any applicable VAT) properly incurred by it in making available
such documents and records and providing such assistance.
|
|
(f) |
The Agent’s or Security Agent’s resignation notice shall only take effect upon:
|
|
(i) |
the appointment of a successor; and
|
|
(ii) |
(in the case of the Security Agent) the transfer or assignment of all the Transaction Security and the other Security Property to that
successor and any appropriate filings or registrations, any notices of transfer or assignment and the payment of any fees or duties related to such transfer or assignment which the Security Agent considers necessary or advisable have
been duly completed.
|
|
(g) |
Upon the appointment of a successor, the retiring Agent or Security Agent shall be discharged from any further obligation in respect of the
Finance Documents (other than its obligations under paragraph (b) of clause 35.10
(Winding up of trust)
and paragraph (e) above)
but shall remain entitled to the benefit of clauses 15.3
((Indemnity to the Agent and the Security Agent)
and 15.4
(Indemnity concerning security)
and this clause 34 (and any agency or other fees for the account of the retiring Agent or Security
Agent in its capacity as such 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 that
successor had been an original Party.
|
|
(h) |
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a
successor 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 Agent under the Finance Documents, either:
|
|
(i) |
the Agent fails to respond to a request under clause 13.7
(FATCA Information)
and the Borrower or a Lender reasonably believes that the 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 Agent pursuant to clause13.
7
(FATCA Information)
indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt
Party on or after that FATCA Application Date; or
|
|
(iii) |
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that
FATCA Application Date,
|
34.17 |
Replacement of the Agent
|
|
(a) |
After consultation with the Borrower, the Majority Lenders may, by giving 30 days’ notice to the Agent (or, at any time the Agent is an
Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent.
|
|
(b) |
The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the
successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
|
(c) |
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent.
As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of clauses 15.3
((Indemnity to the Agent and the Security Agent)
and 15.4
(Indemnity concerning security)
and this clause 34 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
|
|
(d) |
Any successor Agent 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.
|
34.18 |
Replacement of the Security Agent
|
34.19 |
Confidentiality
|
|
(a) |
In acting as agent or trustee for the Finance Parties, the Agent or (as the case may be) the Security Agent shall be regarded as acting
through its agency, trustee or other division or department directly responsible for the management of the Finance Documents which shall be treated as a separate entity from any other of its divisions or departments.
|
|
(b) |
If information is received by another division or department of the Agent or (as the case may be) Security Agent, it may be treated as
confidential to that division or department and the Agent or (as the case may be) Security Agent shall not be deemed to have notice of it.
|
|
(c) |
Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Security Agent nor the Arranger is obliged
to disclose to any other person
|
34.20 |
Agent’s relationship with the Lenders
|
|
(a) |
The Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as
notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance
Document made or delivered on that day,
|
|
(b) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be
made or despatched to that Lender under the Finance Documents. Such notice shall contain the address and (where communication by electronic mail or other electronic means is permitted under clause 42.6
(Electronic communication))
electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and,
in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, electronic mail address, department and officer (or such other information) by
that Lender for the purposes of clause 42.2
(Addresses)
and clause 42.6
(Electronic communication)
and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though
that person were that Lender or (as the case may be).
|
34.21 |
Information from the Finance Parties
|
34.22 |
Credit appraisal by the Finance Parties
|
|
(a) |
the financial condition, status and nature of each Obligor and other Group Member;
|
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Transaction Security, 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, the Transaction Security or the Security Property;
|
|
(c) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
|
(d) |
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 Finance Document, the Transaction Security, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document, the Transaction Security or the Security Property;
|
|
(e) |
the adequacy, accuracy or completeness of any information provided by the Agent, the Security Agent, the Arranger or any other 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
|
|
(f) |
the right or title of any person in or to, or the value or sufficiency of, any part of the Charged Property, the priority of any of the
Transaction Security or the existence of any Security Interest affecting the Charged Property.
|
34.23 |
Deduction from amounts payable by the Agent
|
34.24 |
Reliance and engagement letters
|
35. |
Trust and security matters
|
35.1 |
Undertaking to pay
|
|
(a) |
Each Obliger who is a Party undertakes with the Security Agent as trustee for the Finance Parties that it will, on demand by the Security
Agent, pay to the Security Agent as trustee for the Finance Parties all money from time to time owing to the other Finance Parties (in addition to paying any money owing under the Finance Documents to the Security Agent for its own
account), and discharge all other obligations from time to time incurred, by it under or in connection with the Finance Documents.
|
|
(b) |
Each payment which such an Obliger makes to another Finance Party in accordance with any Finance Document shall, to the extent of the amount
of that payment, satisfy that Obligor’s corresponding obligation under paragraph (a) above to make that payment to the Security Agent.
|
35.2 |
Parallel debt
|
|
(a) |
Additional definitions In this clause 35.2:
|
|
(b) |
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.
|
|
(c) |
The Parallel Debt of an Obligor:
|
|
(i) |
shall become due and payable at the same time as its Corresponding Debt; and
|
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
|
(d) |
For purposes of this clause 35.2, 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).
|
|
(e) |
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, and the Corresponding Debt of an Obligor shall be:
|
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditoinally paid or discharged; and
|
|
(B) |
increased to the extent that its Parallel Debt has increased,
|
|
(f) |
All amounts received or recovered by the Security Agent in connection with this clause 35.2
to the extent permitted by applicable law, shall be applied in accordance with clause 37.1
(Order of
application).
|
|
(g) |
This clause 35.2 shall apply, with any necessary modification s, to each Finance Document.
|
35.3 |
No responsibility to perfect Transaction Security
|
|
(a) |
ascertain whether all deeds and documents which should have been deposited with it under or pursuant to any of the Security Documents have
been so deposited;
|
|
(b) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged
Property;
|
|
(c) |
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;
|
|
(d) |
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;
|
|
(e) |
take, or to require any Obligor to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security
effective or to secure the creation of any ancillary Security Interest under any law or regulation; or
|
|
(f) |
require any further assurance in relation to any Security Document.
|
35.4 |
Insurance by Security Agent
|
|
(a) |
The Security Agent shall not be obliged:
|
|
(i) |
to insure any of the Charged Property;
|
|
(ii) |
to require any other person to maintain any insurance; or
|
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages. costs or losses to any
person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind. unless the Agent requests it to do so in writing and the Security Agent
fails to do so within fourteen days after receipt of that request.
|
35.5 |
Common parties
|
35.6 |
Custodians and nominees
|
35.7 |
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 Finance 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.
|
35.8 |
Additional trustees
|
|
(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 Finance Parties;
|
|
(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.
|
|
(d) |
At the request of the Security Agent., the other Parties shall forthwith execute all such documents and do all such things as may be required
to perfect such appointment or removal and each such Party irrevocably authorises the Security Agent in its name and on its behalf to do the same.
|
|
(e) |
Such a person shall accede to this Agreement as a Security Agent to the extent necessary to carry out their role on terms satisfactory to the
Security Agent.
|
|
(f) |
The Security Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of, any such
person if the Security Agent shall have exercised reasonable care in the selection of such person.
|
35.9 |
Acceptance of title
|
35.10 |
Winding up of trust
|
|
(a) |
all of the Secured Obligations and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
|
(b) |
no Finance Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial
accommodation to any 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 34.16
(Resignation of the Agent or the Security Agent)
shall release, without recourse or warranty, all of its rights under each Security Document.
|
35.11 |
Powers supplemental to Trustee Acts
|
35.12 |
Disapplication of Trustee Acts
|
36. |
Enforcement of Transaction Security
|
36.1 |
Enforcement Instructions
|
|
(a) |
The Security Agent may refrain from enforcing the Transaction Security unless instructed otherwise by Majority Lenders.
|
|
(b) |
Subject to the Transaction Security having become enforceable in accordance with its terms, the Majority Lenders may give or refrain from
giving instructions to the Security Agent to enforce or refrain from enforcing the Transaction Security as they see fit.
|
|
(c) |
The Security Agent is entitled to rely on and comply with instructions given in accordance with this clause 36.1.
|
36.2 |
Manner of enforcement
|
36.3 |
Waiver of rights
|
36.4 |
Enforcement through Security Agent only
|
|
(a) |
The other Finance Parties shall not !have any independent power to enforce, or have recourse to, any of the Transaction Security or to
exercise any right, power, authority or discretion arising or to grant any consents or releases under the Security Documents except through the Security Agent.
|
|
(b) |
Each Finance Party (other than the Security Agent) shall, promptly upon being requested by the Agent to do so, grant a power of attorney or
other sufficient authority to the Security Agent to enable the Security Agent to enforce or have recourse to the relevant Transaction Security or to exercise any such right, power, authority or discretion or to grant any such consent or
release.
|
37. |
Application of proceeds
|
37.1 |
Order of application
|
|
(a) |
in discharging any sums owing to the Security Agent (other than pursuant to clause 35.1
(Undertaking to
pay) or 35.2
(Parallel debt)
),
any Receiver or any Delegate;
|
|
(b) |
in discharging all costs and expenses incurred by any Finance Party in connection with any realisation or enforcement of the Transaction
Security taken in accordance with the terms of this Agreement;
|
|
(c) |
in payment or distribution to the Agent on its own behalf and on behalf of the other Finance Parties for application in accordance with clause
40.6
(Partial payments);
|
|
(d) |
if none of the 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 Obligor; and
|
|
(e) |
the balance, if any, in payment or distribution to the relevant Obligor.
|
37.2 |
Investment of cash proceeds
|
|
(a) |
all or part of any Recoveries which are in the form of cash; and
|
|
(b) |
any cash which is generated by holding, managing, exploiting, collecting, realising or disposing of any proceeds of the Security Property
which are not in the form of cash
|
37.3 |
Currency conversion
|
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Obligations the Security Agent may:
|
|
(i) |
convert any moneys received or recovered by the Security Agent from one currency to another; and
|
|
(ii) |
notionally convert the valuation provided in any opinion or valuation from one currency to another,
|
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied:
|
|
(i) |
in the case of paragraph (a)(i) above, to the extent of the amount of the due currency purchased after deducting the costs of conversion; and
|
|
(ii) |
in the case of paragraph (a)(ii) above, to the extent of the amount of the due currency which results from the notional conversion referred to
in that paragraph.
|
37.4 |
Permitted Deductions
|
37.5 |
Good discharge
|
|
(a) |
Any distribution or payment to be made in respect of the Secured Obligations by the Security Agent may be made to the Agent on behalf of the
Finance Parties.
|
|
(b) |
Any distribution or
payment made as
described in paragraph (a) above shall be a good discharge, to the extent of that payment or distribution, by the Security Agent to the extent of that payment.
|
|
(c) |
The Security Agent is under no obligation to make the payments to the Agent under paragraph (a) above in the same currency as that in which
the Secured Liabilities owing to the relevant Finance Party are denominated pursuant to the relevant Finance Document.
|
37.6 |
Calculation of amounts
|
|
(a) |
notionally convert the Secured Liabilities owed to any person into a common base currency (decided in its discretion by the Security Agent),
that notional conversion to be made at the spot rate at which the Security Agent is able to purchase the notional base currency with the actual currency of the Secured liabilities owed to that person at the time at which that
calculation is to be made; and
|
|
(b) |
assume that all amounts received or recovered as a result of the enforcement or realisation of the Security Property are applied in discharge
of the Secured Liabilities in accordance with the terms of the Finance Documents under which those Secured Liabilities have arisen.
|
37.7 |
Release to facilitate enforcement and realisation
|
|
(a) |
Each Finance Party acknowledges that, for the purpose of any enforcement action by the Security Agent or a Receiver and/or maximising or
facilitating the realisation of the Charged Property, it may be desirable that certain rights or claims against an Obligor and/or under certain of the Transaction Security, be released.
|
|
(b) |
Each other Finance Party hereby irrevocably authorises the Security Agent (acting on the instructions of the Agent) to grant any such releases
to the extent necessary to effect such enforcement action and/or realisation including, to the extent necessary for such purpose, to execute release documents in the name of and on behalf of the other Finance Parties.
|
|
(c) |
Where the relevant enforcement is by way of disposal of shares in the Borrower, the requisite release may include releases of all claims
(including under guarantees) of the Finance Parties and/or the Security Agent against the Borrower and of all Security Interests over the assets of the Borrower.
|
37.8 |
Dealings with Security Agent
|
37.9 |
Disclosure between Finance Parties and Security Agent
|
37.10 |
Notification of prescribed events
|
|
(a) |
If an Event of Default or Default either occurs or ceases to be continuing, the Agent shall, upon becoming aware of that occurrence or
cessation, notify the Security Agent.
|
|
(b) |
If the Security Agent enforces, or takes formal steps to enforce, any of the Transaction Security it shall notify each other Finance Party of
that action.
|
|
(c) |
If any Finance Party exercises any right it may have to enforce, or to take formal steps to enforce, any of the Transaction Security it shall
notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Finance Party of that action.
|
38. |
Conduct of business by the Finance Parties
|
38.1 |
Finance Parties tax affairs
|
|
(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, re mission 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.
|
39. |
Sharing among the Finance Parties
|
39.1 |
Payments to Finance Parties
|
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
|
(b) |
the 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 Agent and distributed in accordance with clause 40
(Payment mechanics),
without
taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the
Sharing Payment
)
equal to such
receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with clause 40.6
(Partial payments).
|
39.2 |
Redistribution of payments
|
39.3 |
Recovering Finance Party’s rights
|
39.4 |
Reversal of redistribution
|
|
(a) |
each Sharing Finance Party shall, upon request of the Agent, pay to the 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 Obliger and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated
as not having been paid by that Obliger.
|
39.5 |
Exceptions
|
|
(a) |
This clause 39 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 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;
|
|
(ii) |
the taking legal or arbitration proceedings was in accordance with the terms of this Agreement; and
|
|
(iii) |
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.
|
40. |
Payment mechanics
|
40.1 |
Payments to the Agent
|
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the
same available to the 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 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 Agent) and with such bank as the Agent, in each case, specifies.
|
40.2 |
Distributions by the Agent
|
40.3 |
Distributions to an Obligor
|
40.4 |
Clawback and pre-funding
|
|
(a) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other
Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
|
(b) |
Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the 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 Agent shall on demand refund the same to the Agent together with interest on that amount from the date of
payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
|
(c) |
If the Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrower before receiving funds from
the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower:
|
|
(i) |
the Agent shall notify the Borrower of that Lender’s identity and the Borrower shall on demand refund it to the Agent; and
|
|
(ii) |
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower, shall on demand pay to the
Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
40.5 |
Impaired Agent
|
|
(a) |
If, at any time, the Agent becomes an Impaired Agent, the Borrower or a Lender which is required to make a payment under the Finance Documents
to the Agent in accordance with clause 40.1
(Payments to the Agent)
may instead either:
|
|
(i) |
pay that amount direct to the required recipient(s); or
|
|
(ii) |
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s),pay
that amount or the relevant part of that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” and in relation to which no Insolvency Event has
occurred and is continuing, in the name of the Borrower or the Lender making the payment (the
Paying Party
)
and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the
Recipient Party or Recipient Parties
).
|
|
(b) |
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the
Recipient Parties pro rata to their respective entitlements.
|
|
(c) |
A Party which has made a payment in accordance with this clause 40.5 shall be discharged of the relevant payment obligation under the Finance
Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
|
|
(d) |
Promptly upon the appointment of a successor Agent in accordance with this Agreement, each Paying Party shall (other than to the extent that
that Party has given an instruction pursuant to paragraph (e) below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for
distribution to the relevant Recipient Party or Recipient Parties in accordance with clause 40.2
(Distributions by the Agent).
|
|
(e) |
A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
|
|
(i) |
that it has not given an instruction pursuant to paragraph (d) above; and
|
|
(ii) |
that it has been provided with the necessary information by that Recipient Party,
|
40.6 |
Partial payments
|
|
(a) |
If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all
the amounts then due and payable by an Obligor under those Finance Documents, the Agent shall apply that payment
|
|
(i) |
first
,
in or towards payment pro rata of any unpaid amount owing to the Agent, the Security Agent or the Arranger for their own account under those Finance Documents;
|
|
(ii) |
secondly
,
in or towards payment to the Lenders pro rata of any amount owing to the Lenders under clause 34.15
(Lenders’ indemnity to the Agent and others);
|
|
(iii) |
thirdly
,
in or towards payment to the Lenders pro rata of all other amounts due to them but unpaid under the Finance Documents; and
|
|
(iv) |
fourthly
,
in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
|
(b) |
The Agent shall, if so directed by all the Lenders and with prior written notice to the Obligors, vary the order set out in paragraphs (ii) to
(iv) of paragraph (a) above.
|
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
40.7 |
No set-off by Obligors
|
40.8 |
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 Unpaid Sum under this Agreement interest is payable on the principal or
Unpaid Sum at the rate payable on the original due date.
|
40.9 |
Currency of account
|
|
(a) |
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance
Document.
|
|
(b) |
A repayment of all or part of the Loan or an Unpaid Sum and each payment of interest shall be made in dollars on its due date.
|
|
(c) |
Each payment in respect of the amount of any costs, expenses or Taxes or other losses shall be made in dollars and, if they were incurred in a
currency other than dollars, the amount payable under the Finance Documents shall be the equivalent in dollars of the relevant amount in such other currency on the date on which it was incurred.
|
|
(d) |
All moneys received or held by the Security Agent or by a Receiver under a Security Document in a currency other than dollars may be sold for
dollars and the Obligor which executed that Security Document shall indemnify the Security Agent against the full cost in relation to the sale. Neither the Security Agent nor such Receiver will have any liability to that Obligor in
respect of any loss resulting from any fluctuation in exchange rates after the sale.
|
40.10 |
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 Agent (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 Agent (acting reasonably).
|
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with
the Borrower ) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Interbank Market and otherwise to reflect the change in currency.
|
40.11 |
Disruption to payment systems etc.
|
|
(a) |
the 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 Agent may deem necessary in the circumstances;
|
|
(b) |
the Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its reasonable
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 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 Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has
occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of clause 46
(Amendments and waivers);
|
|
(e) |
the 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 Agent) arising as a result of its taking, or failing to take, any actions pursuant
to or in connection with this clause 40.11; and
|
|
(f) |
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
41. |
Set-off
|
42. |
Notices
|
42.1 |
Communications in writing
|
42.2 |
Addresses
|
|
(a) |
in the case of any Obligor who is a Party, that identified with its name in Schedule 1
(The original parties);
|
|
(b) |
in the case of any Obligor which is not a Party, that identified in any Finance Document to which it is a party;
|
|
(c) |
in the case of the Security Agent, the Agent and any other original Finance Party, that identified with its name in Schedule 1
(The original parties);
and
|
|
(d) |
in the case of each Lender or other Finance Party, that notified in writing to the Agent on or prior to the date on which it becomes a Party
in the relevant capacity ,
|
42.3 |
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 when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address and, if a particular department or officer is specified as
part of its address details provided under clause 42.2
(Addresses),
if addressed to that department or officer.
|
|
(b) |
Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the
Agent or the Security Agent and then only if it is expressly marked for the attention of the department or officer identified in Schedule 1
(The original parties)
(or any substitute department or officer as the Agent or the Security Agent shall specify for this purpose).
|
|
(c) |
All notices from or to an Obligor shall be sent through the Agent.
|
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this clause 42.3 will be deemed to have been made or
delivered to each of the 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.
|
42.4 |
Notification of address
|
42.5 |
Communication when Agent is Impaired Agent
|
42.6 |
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 Agent or the Security Agent, only if it is addressed in such a manner as the 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 or any other Finance Document 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 42.6.
|
42.7 |
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 Agent, accompanied by a certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other official document.
|
43. |
Calculations and certificates
|
43.1 |
Accounts
|
43.2 |
Certificates and determinations
|
43.3 |
Day count convention
|
44. |
Partial invalidity
|
45. |
Remedies and waivers
|
46. |
Amendments and waivers
|
46.1 |
Required consents
|
|
(a) |
Subject to clause 46.2
(All Lender matters)
and clause 46.3
(Other exceptions),
any term of the Finance Documents may be amended or waived only with the consent of the
Majority Lenders and the Borrower and any such amendment or waiver will be binding on all the Finance Parties and other Obligors.
|
|
(b) |
The Agent may (or, in the case of the Security Documents, instruct the Security Agent to) effect, on behalf of any Finance Party, any
amendment or waiver permitted by this clause 46.
|
|
(c) |
Without prejudice to the generality of paragraphs (c), (d) and (e) of clause 34.11
(Rights and discretions of the Agent),
the Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment,
waiver or consent under this Agreement.
|
|
(d) |
Each Obligor agrees to any such amendment or waiver permitted by this clause 46 which is agreed to by the Borrower. This includes any
amendment or waiver which would, but for this paragraph (d), require the consent of the Guarantor.
|
46.2 |
All Lender matters
|
|
(a) |
the definition of “Majority Lenders” in clause 1.1
(Definitions);
|
|
(b) |
the definition of “Last Availability Date” in clause 1.1
(Definitions);
|
|
(c) |
an extension to the date of payment of any amount under the Finance Documents;
|
|
(d) |
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable or the rate at which
they are calculated;
|
|
(e) |
an increase in, or an extension of, any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the
Lenders rateably under the Facility;
|
|
(f) |
a change to the Borrower or any other Obligor;
|
|
(g) |
any provision which expressly requires the consent
or
approval of all the Lenders;
|
|
(h) |
clause 39 (Sharing among the Finance Parties);
|
|
(i) |
clause 2.2 (Finance Parties’ rights and obligations), clause 7.1 (Illegality), clause 32 (Changes to the Lenders), clause 8.9 (Application of prepayments),
this clause 46, clause 51 (Governing Jaw) or clause 52.1 (Jurisdiction of English courts);
|
|
(j) |
the order of distribution under clause 37.1
(Order
of application);
|
|
(k) |
the order of distribution under clause 40.6
(Partial payments);
|
|
(l) |
the currency in which any amount is payable under any Finance Document;
|
|
(m) |
an increase in any Commitment or the Total Commitments, an extension of any period within which the Facility is available for Utilisation or
any requirement that a cancellation of Commitments reduces the Commitments rateably;
|
|
(n) |
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:
|
|
(i) |
any guarantee and indemnity granted under any Finance Document (including under clause 18
(Guarantee and indemnity));
|
|
(ii) |
the Charged Property; or
|
|
(iii) |
the manner in which the proceeds of enforcement of the Transaction Security are distributed;
|
|
(o) |
the circumstances in which any of the Transaction Security is permitted or required to be released under any of the Finance Documents,
|
46.3 |
Other exceptions
|
|
(a) |
An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent or the Arranger in their respective
capacities as such (and not just as a Lender) may not be effected without the consent of the Agent, the Security Agent or the Arranger (as the case may be).
|
|
(b) |
Notwithstanding clauses 46.1 and 46.2 and paragraph (a) above, the Agent may make technical amendments to the Finance Documents arising out of
manifest errors on the face of the Finance Documents, where such amendments would not prejudice or otherwise be adverse to the interests of any Finance Party without any reference or consent of the Finance Parties.
|
46.4 |
Replacement of Screen Rate
|
46.5 |
Releases
|
|
(a) |
any Charged Property from the Transaction Security; or
|
|
(b) |
any Obligor from any of its guarantee or other obligations under any Finance Document.
|
46.6 |
Disenfranchisement of Defaulting Lenders
|
|
(a) |
For so long as a Defaulting Lender has any Available Commitment, in ascertaining:
|
|
(i) |
the Majority Lenders; or
|
|
(ii) |
whether:
|
|
(A) |
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments under the Facility; or
|
|
(B) |
the agreement of any specified group of Lenders,
|
|
(b) |
For the purposes of this clause 46.6, the Agent may assume that the following Lenders are Defaulting Lenders:
|
|
(i) |
any Lender which has notified the Agent that it has become a Defaulting Lender; and
|
|
(ii) |
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the
definition of “Defaulting Lender” has occurred,
|
46.7 |
Excluded Commitments
|
|
(a) |
any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or
any other vote of Lenders under the terms of this Agreement within 10 Business Days of that request being made; or
|
|
(b) |
any Lender which is not a Defaulting Lender fails to respond to such a request (other than an amendment, waiver or consent referred to in
paragraphs (b), (c), (d) and(m)of clause 46.2
(All Lender matters))
or such a vote within 10 Business Days of that request being
made,
|
|
(i) |
its Commitment or its participation in the Loan shall not be included for the purpose of calculating the Total Commitments or the amount of
the Loan when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments or the amount of the Loan 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.
|
46.8 |
Replacement of a Defaulting Lender
|
|
(a) |
The Borrower may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 10 Business Days’ prior notice to the
Agent and such Lender replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) assign pursuant to clause 32
(Changes to the Lenders)
all (and not part only) of its
|
|
(i) |
in an amount equal to:
|
|
(A) |
the outstanding principal amount of such Lender’s participation in the Loan;
|
|
(B) |
all accrued interest owing to such Lender;
|
|
(C) |
the Break Costs which would have been payable to such Lender pursuant to clause 11.5
(Break Costs)
had the Borrower prepaid in full that Lender’s participation in the Loan on the date of the assignment; and
|
|
(D) |
all other amounts payable to that Lender under the Finance Documents on the date of the assignment or
|
|
(ii) |
in an amount agreed between that Defaulting Lender, the Replacement Lender and the Borrower and which does not exceed the amount described in
paragraph (i) above.
|
|
(b) |
Any assignment by a Defaulting Lender pursuant to this clause 46.8 shall be subject to the following conditions:
|
|
(i) |
the Borrower shall have no right to replace the Agent or the Security Agent;
|
|
(ii) |
neither the Agent nor the Defaulting Lender shall have any obligation to the Borrower to find a Replacement Lender;
|
|
(iii) |
the assignment must take place no later than five Business Days after the notice referred to in paragraph (a) above;
|
|
(iv) |
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting
Lender pursuant to the Finance Documents; and
|
|
(v) |
the Defaulting Lender shall only be obliged to assign its rights pursuant to paragraph (a) above once it is satisfied that it has complied
with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that assignment to the Replacement Lender.
|
|
(c) |
The Defaulting Lender shall perform the checks described in paragraph (b) (v) above as soon as reasonably practicable following delivery of a
notice referred to in paragraph (a) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.
|
46.9 |
Disenfranchisement of Borrower Affiliates
|
|
(a) |
For so long as a Borrower Affiliate:
|
|
(i) |
beneficially owns a Commitment; or
|
|
(ii) |
has entered into a sub-participation agreement relating to a Commitment or other agreement or arrangement having a substantially similar
economic effect and such agreement or arrangement has not been terminated
|
|
(A) |
the Majority Lenders; or
|
|
(B) |
whether:
|
|
(1) |
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or
|
|
(2) |
the agreement of any specified group of Lenders,
|
|
(b) |
Each Lender shall, unless such Debt Purchase Transaction is an assignment or transfer, promptly notify the Agent in writing if it knowingly
enters into a Debt Purchase Transaction with a Borrower Affiliate (a Notifiable Debt Purchase Transaction), such notification to be substantially in the form set out in Part I of Schedule 7
(Forms of Notifiable Debt Purchase Transaction Notice).
|
|
(c) |
A Lender shall promptly notify the Agent if a Notifiable Debt Purchase Transaction to which it is a party:
|
|
(i) |
is terminated; or
|
|
(ii) |
ceases to be with a Borrower Affiliate,
|
|
(d) |
Each Borrower Affiliate that is a Lender agrees that:
|
|
(i) |
in relation to any meeting or conference call to which all the Lenders are invited to attend or participate, it shall not attend or
participate in the same if so requested by the Agent or, unless the Agent otherwise agrees, be entitled to receive the agenda or any minutes of the same; and
|
|
(ii) |
in its capacity as Lender, unless the Agent otherwise agrees, it shall not be entitled to receive any report or other document prepared at the
behest of, or on the instructions of, the Agent or one or more of the Lenders.
|
47. |
Confidential Information
|
47.1 |
Confidential Information
|
47.2 |
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 may potentially assign) 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 Agent or Security Agent and, in each case, to any of that person’s Affiliates, Related Funds, Representatives, professional advisers and partners;
|
|
(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 Obligors and to any of that person’s Affiliates, Related Funds, Representatives, professional
advisers and partners;
|
|
(iii) |
appointed by any Finance Party or by a person to whom paragraphs (b)(i) or (b)(ii) 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 (b) of clause 34.20
(Relationship with the Lenders));
|
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to
in paragraphs (b)(i) or (b)(ii) 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, arbitration, 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 32.8
(Security over Lenders’ rights);
|
|
(viii) |
who is a Party; or
|
|
(ix) |
with the consent of the Borrower;
|
|
(c) |
to any person appointed by that Finance Party or by a person to whom paragraphs (b)(i) or (b)(ii) 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 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 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 Obligors.
|
47.3 |
Entire agreement
|
47.4 |
Inside information
|
47.5 |
Notification of disclosure
|
|
(a) |
of the circumstances of any disclosure of Confidential Information made to 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 or the rules of any relevant stock exchange or pursuant to any applicable law or regulation pursuant
to clause 47.2
(Disclosure of Confidential Information)
except where such disclosure is made to any such person during the
ordinary course of its supervisory or regulatory function; and
|
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this clause 47.
|
47.6 |
Continuing obligations
|
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents 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.
|
48. |
Confidentiality of Funding Rates
|
48.1 |
Confidentiality and disclosure
|
|
(a) |
The Agent and each Obligor who is a Party 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 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 Agent and the relevant Lender.
|
|
(c) |
The Agent 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 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 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 Agent or the relevant Obliger, as the case may be, it is not practicable to do so in the circumstances;
|
|
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration,
administrative or other investigations, proceedings or disputes if the person to whom that 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 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.
|
48.2 |
Related obligations
|
|
(a) |
The 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 Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose.
|
|
(b) |
The 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 clause 48.1(c)(ii)
(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 48.
|
48.3 |
No Event of Default
|
49. |
Counterparts
|
50. |
Contractual recognition of 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.
|
51. |
Governing law
|
52. |
Enforcement
|
52.1 |
Jurisdiction of English courts
|
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or any
non-contractual obligations connected with it (including a dispute regarding the existence, validity or termination of this Agreement) (a
Dispute
).
|
|
(b) |
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will
argue to the contrary.
|
|
(c) |
Notwithstanding paragraph (a) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
52.2 |
Service of process
|
|
(a) |
irrevocably appoints the person named in Schedule 1
(The original parties)
as that Obligor’s English process agent as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document;
|
|
(b) |
agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings
concerned; and
|
|
(c) |
if any person appointed as process agent for an Obligor is unable for any reason to act as agent for service of process, that Obligor must
immediately (and in any event within ten 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.
|
Name:
|
Astarte International Inc.
|
Original Jurisdiction
|
The Republic of the Marshall Islands
|
Registration number (or equivalent
,
if any
)
|
89977
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Address for service of notices
|
c/o Central Mare Inc., 1 Vas. Sofias Street & Meg. Alexandrou,
151 24 Maroussi, Greece. Attn: Andreas Louka. Email: legal@centralmare.com. Tel.: +30 210 812 8320 |
English process agent (if not
incorporated in England
)
|
Top Properties (London) Limited, 247 Gray’s Inn Road, London WC1X 8QZ, United Kingdom
|
Name:
|
Top Ships Inc.
|
Original Jurisdiction
|
The Republic of the Marshall Islands
|
Registration number (or equivalent
,
if any
)
|
3571
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Address for service of notices
|
c/o Central Mare Inc., 1 Vas . Sofias Street & Meg. Alexandrou,
151 24 Maroussi, Greece . Attn: Andreas Louka. Email: legal@ centralmare.com. Tel.: +30 210 812 8320 |
English process agent (if not
incorporated in England
)
|
Top Properties (London) Limited, 247 Gray’s Inn Road , London WC1X 8QZ, United Kingdom
|
Name
|
Amsterdam Trade Bank N.V.
|
Commitment $
|
23,500,000
|
TOTAL $
|
23,500,000
|
Total Commitments $
|
23,500,000
|
TOTAL $
|
23,500,000
|
Name
|
Amsterdam Trade Bank N.V.
|
Facility Office
,
address and attention details for notices
|
Herengracht 469
Amsterdam, 1017 BS The Netherlands Attn: Iraklis Tsirigotis / Vassilis Kolovos Email: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl |
Name
|
Amsterdam Trade Bank N.V.
|
Facility Office
,
address and attention details for notices
|
Herengracht 469
Amsterdam, 1017 BS The Netherlands Attn: Iraklis Tsirigotis / Vassilis Kolovos Email: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl |
Name
|
Amsterdam Trade Bank N.V.
|
Facility Office
,
address and attention details for notices
|
Herengracht 469
Amsterdam, 1017 BS The Netherlands Attn: Iraklis Tsirigotis / Vassilis Kolovos Email: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl |
Builder:
|
Hyundai Mipo Dockyard Co., Ltd.
|
Builder’s registered office:
|
100 Bangeojinsunhwan-Doro, Dung-Gu, Ulsan 44113, Korea
|
Hull Number:
|
2648
|
Scheduled Delivery Date:
|
31 July 2018
|
Date and description of Building Contract:
|
shipbuilding contract dated 20 April 2017 as amended and supplemented by an Amendment No. 1 thereto dated 18 July 2017
|
Contract Price:
|
$31,900,000
|
Flag State:
|
The Republic of the Marshall Islands
|
Port of Registry:
|
Majuro
|
Charter description:
|
time charter dated 1 September 2017
|
Charterer:
|
Central Ship Chartering Inc.
|
Classification:
|
+100A1, Double Hull Oil and Chemical Tanker, Ship Type 2 and Ship Type 3, ESP, CSR, +LMC, UMS, ·1ws, LI, SRM4, ECO(IHM, P), NAV1, IGS,
ShipRight (CM, ACS(B)) with descriptive notes COW(LR),
ETA, ShipRight (BWMP(S)), SERS,
SCM, VECS)
|
Classification Society:
|
Lloyds Register of Shipping
|
Major Casualty Amount:
|
$500,000
|
1. |
Original Obligors’ corporate documents
|
|
(a) |
A copy of the Constitutional Documents of each Original Ob liger (other than the Charterer) and minutes of any extraordinary shareholders’
meeting(s) amending the Constitutional Documents of CSM.
|
|
(b) |
A copy of a resolution of the board of directors of each Original Obligor (other than the Charterer) (or, if applicable, any committee of such
board empowered to approve and authorise the following matters):
|
|
(i) |
approving the terms of, and the transactions contemplated by, the Transaction Documents to which it is a party (its
Relevant Documents
)
and resolving that it execute,
deliver and perform the Relevant Documents to which it is a party;
|
|
(ii) |
authorising a specified person or persons to execute its Relevant Documents on its behalf; and
|
|
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any
Utilisation Request) to be signed and/or despatched by it under or in connection with its Relevant Documents.
|
|
(c) |
If applicable, a copy of a resolution of the board of directors of the relevant company, establishing any committee referred to in paragraph
(b) above and conferring authority on that committee.
|
|
(d) |
(d) A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above in relation to its Relevant
Documents and related documents.
|
|
(e) |
A copy of a resolution signed by all the holders of the issued shares in each Original Obligor (other than the Charterer), approving the terms
of, and the transactions contemplated by, its Relevant Documents.
|
|
(f) |
A copy of a resolution of the board of directors of each corporate shareholder of each Original Obliger (other than the Charterer) approving
the terms of the resolution referred to in paragraph (e) above and in relation to CSM, a copy of a resolution of the shareholders’ meeting of CSM:
|
|
(i) |
ratifying the terms and conditions of the Finance Documents;
|
|
(ii) |
ratifying the authorisation given to a specified person or persons to execute the Finance Documents; and
|
|
(iii) |
authorizing the directors pursuant to article 23 of the Sovereign Ordinance of March 5th, 1895.
|
|
(g) |
A certificate of the Guarantor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Total
Commitments would not cause any borrowing, guarantee, security or similar limit binding on any Original Obligor (other than the Charterer) to be exceeded.
|
|
(h) |
A copy of any power of attorney under which any person is appointed by any Original Obligor (other than the Charterer) to execute any of its
Relevant Documents on its behalf.
|
|
(i) |
A certificate of an authorised signatory of each relevant Original Obliger (other than the Charterer) certifying that each copy document
relating to it specified in this Part of this Schedule is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement and that any such resolutions or
power of attorney have not been revoked.
|
|
(i) |
A goodstanding certificate from the Marshall Islands competent authority in respect of the Borrower and the Guarantor (not more than 14 days
before the proposed Utilisation Date).
|
2. |
legal opinions
|
|
(a) |
A legal opinion of Norton Rose Fulbright Greece addressed to the Arranger, the Security Agent and the Agent on matters of English law,
substantially in the form approved by the Agent prior to signing this Agreement.
|
|
(b) |
A legal opinion of the legal advisers to, the Arranger, the Security Agent and the Agent in England and also each jurisdiction in which an
Obliger is incorporated, or in which an Account opened at the relevant time is established substantially in the form approved by the Agent prior to signing this Agreement.
|
3. |
Other documents and evidence
|
|
(a) |
Evidence that any process agent referred to in clause 52.2
(Service of
process) or any equivalent provision of any other Finance Document entered into on or before the Utilisation Date, if not an Original Obligor, has accepted its appointment.
|
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary (if it has notified the
Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
|
(c) |
The Fee Letter duly executed and evidence that the fees, commissions, costs and expenses then due from the Borrower pursuant to clause 12
(Fees)
and clause 17 (Costs
and
expenses)
have been paid or will be paid by the Utilisation Date.
|
4. |
Bank Account
|
5. |
Charter
|
|
(a) |
The Charter, duly executed, on such terms (including as to the identity of the Charterer, the charter rates and their tenors) and otherwise
approved by the Majority Lenders.
|
|
(b) |
Such evidence as the Agent may require as to the due incorporation of the Charterer and any other party to the Charter Documents (other than
an Obliger), their power and authority to enter into and perform those documents and the authorisation of their entry into them.
|
6. |
“Know your customer” information
|
7. |
Disclosed Persons
|
8. |
Charter hire
|
1. |
Corporate documents
|
|
(a) |
A
certificate of an authorised
signatory of the Borrower certifying that each copy document relating to it specified in Part 1 of this Schedule remains correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose and
that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or amended.
|
|
(b) |
A certificate of an authorised signatory of each other Obligor which is party to any of the Original Security Documents required to be
executed at or before Delivery of the Ship certifying that each copy document relating to it specified in Part 1 of this Schedule remains correct, complete and in full force and effect as at a date no earlier than a date approved for
this purpose and that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or amended.
|
2. |
Security
|
|
(a) |
The Mortgage, the General Assignment and the Charter Assignment duly executed by the Borrower.
|
|
(b) |
Any Manager’s Undertaking required at Delivery pursuant to the Finance Documents duly executed by the relevant manager.
|
|
(c) |
Duly executed notices of assignment and acknowledgements of those notices as required by any of the above Security Documents.
|
3. |
Delivery and registration of Ship
|
|
(a) |
is legally and beneficially owned by the Borrower and registered in the name of the Borrower through the relevant Registry as a ship under the
laws and flag of the relevant Flag State;
|
|
(b) |
is classed with the relevant Classification free of all overdue requirements and recommendations of the relevant Classification Society;
|
|
(c) |
is insured in the manner required by the Finance Documents; and
|
|
(d) |
has been delivered, and accepted for service, under the Charter.
|
4. |
Mortgage registration
|
5. |
Legal opinions
|
|
(a) |
A legal opinion of Norton Rose Fulbright Greece addressed to the Security Agent and the Agent on matters of English law, substantially in the
form approved by the Agent prior to signing this Agreement in relation to Security Documents.
|
|
(b) |
A legal opinion of the legal advisers to the Security Agent and the Agent in each jurisdiction in which an Obligor is incorporated and/or
which is or is to be the Flag State of the Ship, or in which the Operating Account opened at the relevant time is established substantially in the form approved by the Agent prior to signing this Agreement.
|
6. |
Insurance
|
|
(a) |
an opinion from BankServe Insurance Services Ltd. appointed by the Agent on such Insurances;
|
|
(b) |
evidence that such Insurances have been placed in accordance with clause 26
(Insurance);
and
|
|
(c) |
evidence that approved brokers, insurers and/or associations have issued or will issue letters of undertaking in favour of the Security Agent
in an approved form in relation to the Insurances.
|
7. |
ISM and ISPS Code
|
|
(a) |
the document of compliance issued in accordance with the ISM Code to the person who is the operator of the Ship for the purposes of that code;
|
|
(b) |
the safety management certificate in respect of the Ship issued in accordance with the ISM Code (or evidence that such certificate is to be
issued shortly after Delivery);
|
|
(c) |
the international ship security certificate in respect of the Ship issued under the ISPS Code (or evidence that such certificate is to be
issued shortly after Delivery); and
|
|
(d) |
if so requested by the Agent, any other certificates issued under any applicable code required to be observed by the Ship or in relation to
its operation under any applicable law.
|
8. |
Value of security
|
9. |
Construction matters
|
|
(a) |
Evidence that any Authorisations required from any government entity for the export of the Ship by the Builder have been obtained or that no
such Authorisations are required.
|
|
(b) |
Evidence that the full contract price of the Ship (as adjusted in accordance with its Building Contract) will have been paid upon the
Utilisation being made and that the Builder and the Shipyard will not have any lien or other right to detain the ship on its Delivery.
|
|
(c) |
The original or a copy, certified by a legal advisor of the Borrower to be a true and complete copy, of the builder’s certificate, the bill of
sale conveying title to the Ship to the
|
10. |
Fees and expenses
|
11. |
Management Agreement
|
12. |
Process Agent
|
13. |
Refinancing
|
14. |
Share Security
|
From:
|
Astarte International Inc.
|
To:
|
Amsterdam Trade Bank N.V.
|
Dated:
|
[•]
|
1. |
We refer to the Facility Agreement. This is a Utilisation Request. Terms defined in the Facility 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:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
|
Amount:
|
$ [•]
|
3. |
We confirm that each condition specified In clause 4.4
(Further
conditions precedent)
is satisfied on the date of this Utilisation Request.
|
4. |
The purpose of the Loan is [
specify purpose
complying with clause (a) of the Facility Agreement
]
and its proceeds should be credited to[•] [
specify account
]].
|
5. |
This Utilisation Request is irrevocable.
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
[
The Existing Lender
]
(the
Existing Lender
)
and [
The New Lender
]
(the
New Lender
)
|
Dated:
|
1. |
We refer to the Facility Agreement. This agreement (the
Agreement
)
shall take effect as a Transfer Certificate for the purposes of the Facility Agreement. Terms
defined in the Facility Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
2. |
We refer to clause 32.6
(Procedure for
assignment)
of the Facility Agreement:
|
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Facility Agreement and the other
Finance Documents which correspond to that portion of the Existing Lender’s Commitment and participation in the Loan under the Facility Agreement as specified in the Schedule.
|
|
(b) |
The Existing Lender is released from the obligations owed by it which correspond to that portion of the Existing Lender’s Commitment and
participation in the Loan under the Facility Agreement specified in the Schedule (but the obligations owed by the Obligors under the Finance Documents shall not be released).
|
|
(c) |
On the Transfer Date 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) |
The proposed Transfer Date is [•].
|
|
(e) |
The Facility Office and address and attention details for notices of the New Lender for the purposes of clause 42.2
(Addresses)
of the Facility Agreement are set out in the Schedule.
|
3. |
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in clause 32.5
(Limitation of responsibility of Existing Lenders)
of the Facility Agreement.
|
4. |
The New Lender confirms that it [is]/ [is not] a Borrower Affiliate.
|
5. |
This Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with clause 32.7
(Copy of Transfer Certificate to Borrower),
to the Borrower (on behalf of each Obliger) of the assignment referred to in this
Agreement.
|
6. |
This 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 Agreement.
|
7. |
This Agreement and any non-contractual obligations connected with it are governed by English law.
|
8. |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
By:
|
By:
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
Astarte International Inc. as Borrower
|
Dated:
|
[•]
|
1. |
I/We refer to the Facility Agreement. This is a Compliance Certificate in respect of the Borrower. Terms defined in the Facility Agreement
have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2. |
I/We confirm that:
|
|
(a) |
Minimum liquidity:
the cash balance in
the Operating Account was [not] less than the minimum required amount of $[650,000] [300,000] at all times during the [six] [twelve] month period ended on [•], as shown in Appendix A [
attach relevant evidence
];
and
|
|
(b) |
Security Value:
the Security Value was
[equal to] [less than] [more than) the Minimum Value calculated as shown in Appendix B
[attach relevant evidence
].
|
3. |
[I/We confirm that no Default is continuing.] [If this statement cannot be made, the certificate should identify any Default that is
continuing and the steps, if any, being taken to remedy it.]
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
Top Ships Inc. as Guarantor
|
Dated:
|
[•]
|
1. |
I/We refer to the Facility Agreement. This is a Compliance Certificate in respect of the Guarantor. Terms defined in the Facility Agreement
have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2. |
I/We confirm that:
|
|
(a) |
Leverage:
the ratio of Total Net Debt
to Fleet Market Value in respect of the Group was [•]:1.00, calculated as shown in [Appendix A] versus a maximum required ratio of 0.75:1.00
[attach relevant evidence
]:
and
|
|
(b) |
Minimum liquidity:
the Group’s Cash
and Cash Equivalents were [•] calculated as shown in [Appendix B] versus a minimum required aggregate amount of (i) $750,000 per Fleet Vessel and (ii) $500,000 per Chartered Vessel [
attach relevant evidence
].
|
3. |
I/We confirm that no Default is continuing.] [If this statement cannot be made, the certificate should identify any Default that is continuing
and the steps, if any, being taken to remedy it.]
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
[The Lender]
|
Dated:
|
1. |
We refer to clause 46.9
(Disenfranchisement
of Borrower Affiliates)
of the Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this notice unless given a different meaning in this notice.
|
2. |
We have entered into a Notifiable Debt Purchase Transaction.
|
3. |
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to the amount of our Commitment as set out below.
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
[The Lender]
|
Dated:
|
1. |
We refer to clause 46.9
(Disenfranchisement
of Borrower Affiliates)
of the Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this notice unless given a different meaning in this notice.
|
2. |
A Notifiable Debt Purchase Transaction which we entered into and which we notified you of in a notice dated [•] has [terminated]/ [ceased to
be with a Borrower Affiliate].*
|
3. |
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to the amount of our Commitment as set out below.
|
From:
|
Astarte International Inc.
|
To:
|
Amsterdam Trade Bank N.V.
|
For the attention of: Mr. Iraklis Tsirigotis (i.tsirigotis@atbank.nl)
|
|
[Day, Month , Year]
|
Item
|
Unit
|
Actual
|
Comment
|
1)
Average daily gross TCE hire earned
|
USO
|
||
2)
Total brokerage commission charged
|
USO
|
||
3)
Average daily net TCE hire earned
|
USO
|
||
4)
Total on-hire days
|
No .
|
||
5)
Total off-hire days
|
No.
|
||
6)
Average daily operating expenses
|
USO
|
||
7)
Average daily management fee
|
USO
|
||
8)
Average daily SG&A expenses
|
USO
|
||
9)
Total maintenance expenses*
|
USO
|
||
10)
Other expenses
|
USO
|
SIGNATURES
|
|
THE BORROWER
|
|
ASTARTE INTERNATIONAL INC.
|
|
By:
/s/ Nikolas Papastratis
|
|
Nikolas Papastratis
|
|
THE GUARANTOR
|
|
TOP SHIPS INC.
|
|
By:
/s/ Nikolas Papastratis
|
|
Nikolas Papastratis
|
|
THE AGENT
|
|
AMSTERDAM TRADE BANK N.V.
|
|
By:
/s/ Christos Maglaras
|
|
Christos Maglaras
|
|
THE SECURITY AGENT
|
|
AMSTERDAM TRADE BANK N.V.
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By:
/s/ Christos Maglaras
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Christos Maglaras
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THE LENDERS
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AMSTERDAM TRADE BANK N.V.
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By:
/s/ Christos Maglaras
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Christos Maglaras
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Clause
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Page
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1
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Definitions and Interpretation
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1
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2
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Agreement of the Finance Parties
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2
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3
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Amendments
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2
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4
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Representations and warranties
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7
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5
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Conditions
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8
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6
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Relevant Parties’ confirmation
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9
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7
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Expenses
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9
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8
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Miscellaneous and notices
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10
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9
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Governing law
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10
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Schedule 1 The Lenders
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12
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Schedule 2 Documents and evidence required as conditions precedent
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13
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(1) |
ASTARTE INTERNATIONAL INC.,
a corporation incorporated
in the Republic of the Marshall Islands with its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the Marshall Islands (the
Borrower
);
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(2) |
TOP SHIPS INC.,
a corporation incorporated in the
Republic of the Marshall Islands with its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island , Majuro MH96960, Republic of the Marshall Islands (the
Guarantor
);
|
(3) |
AMSTERDAM TRADE BANK N.V.,
a company incorporated in
The Netherlands with its registered office at World Trade Center, Tower I, Level 6, Strawinskylaan 1939 1077 XX Amsterdam, The Netherlands as mandated lead arranger (the
Arranger
);
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(4) |
AMSTERDAM TRADE BANK N.V.,
a company incorporated in
The Netherlands with its registered office at World Trade Center, Tower I, Level 6, Strawinskylaan 1939 1077 XX Amsterdam , The Netherlands as agent of the other Finance Parties (the
Agent
);
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(5) |
AMSTERDAM TRADE BANK N.V.,
a company incorporated in
The Netherlands with its registered office at World Trade Center, Tower I, Level 6, Strawinskylaan 1939 1077 XX Amsterdam , The Netherlands as security agent of the other Finance Parties (the
Security Agent
);
and
|
(6) |
THE FINANCIAL INSTITUTIONS
listed in Part 1 of
Schedule 1
(The Lenders)
as lenders (the
Lenders
).
|
(A) |
this Agreement is supplemental to a loan agreement dated 5 September 2017 made between the Borrower, the Guarantor, the Arranger, the Agent, the Security
Agent and the Lenders (the
Principal Agreement
),
relating to a loan of up to $23,500,000;
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(B) |
the Borrower has requested certain amendments to the Principal Agreement contained in clause 3
(Amendments);
and
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(C) |
this Agreement sets out the terms and conditions upon which the Finance Parties agree to the amendments and changes referred to in Recital (B) above.
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1 |
Definitions and Interpretation
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1.1 |
Definitions
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1.2 |
Interpretation
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1.2.1 |
References in the Principal Agreement to “this Agreement”, shall, with effect from the Effective Date and unless the context otherwise requires, be references
to the Principal Agreement as amended and supplemented by this Agreement and words such as “herein”, “hereof’, “hereunder”, “hereafter”, “hereby” and “hereto”, where they appear in the Principal Agreement shall be construed accordingly.
|
1.2.2 |
Clauses 1.2
(Construction),
1.4
(Third patty rights)
and 1.5
(Finance
Documents)
of the Principal Agreement and any other provision of the Principal Agreement which, by its terms, purports to apply to all of the Finance Documents and/or any Obligor shall apply to this Agreement as if set out in
it but with all necessary changes and as if references in the provision to Finance Documents referred to this Agreement.
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2 |
Agreement of the Finance Parties
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3 |
Amendments
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3.1 |
Amendments to the Principal Agreement
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3.1.1 |
by deleting in its entirety the definition of
Additional
Unacceptable Country
in clause 1.1
(Definitions)
of the Principal Agreement;
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3.1.2 |
by inserting in the correct alphabetical order in clause 1.1 (Definitions) of the Principal Agreement the following new definitions of
Effective Date, Joint Venture
and
Sub-charterer:
|
3.1.3 |
by replacing the definitions of
Charter Assignment
and
Charter Documents
in clause 1.1
(Definitions)
of the Principal Agreement with the following new definitions of
Charter Assignment
and
Charter Documents:
|
|
(a) |
a first priority assignment by the Borrower or its interest in such Charter Documents in favour of the Security Agent in the agreed form; and
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(b) |
a first priority assignment by the Charterer or its interest in such Charter Documents in favour of the Security Agent in the agreed form.”;
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3.1.4 |
by deleting paragraph (d) in the definition of
Original
Security Documents
in clause 1.1 of the Principal Agreement with the following new paragraph (d):
|
3.1.5 |
by adding the words “and the Sub-charterer” after the word “Charterer” throughout the Principal Agreement (other than in the definition of
Charterer
in clause 1.1
(Definitions)
of the Principal Agreement and clause 7.9
(Mandatory cancellation)
of the Principal Agreement);
|
3.1.6 |
by replacing sub-paragraphs (i), (ii) and (v) in clause 7.9
(Mandatory
cancellation)
of the Principal Agreement with the following new sub-paragraphs (i), (ii) and (v):
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“(i) |
the Charter is novated or assigned by the Borrower or the Charterer or;”;
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“(i) | Charter is for any reason and by any method cancelled, terminated or rescinded or is not, or ceases to be, legal, valid, binding and enforceable obligations of the Charterer or the Borrower or the Sub-charterer or it is or it becomes unlawful for any of the Charterer or the Borrower or the Sub-charterer to perform its respective obligations under it; or”; and |
|
“(v) |
the Charterer or the Sub-charterer becomes subject to any of the events or circumstances described in clause 31.9
(Insolvency)
or clause 31.10
(Insolvency proceedings),” ;
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3.1.7 |
by deleting clause 12.1 (
Commitment commission)
of
the Principal Agreement in its entirety and by replacing it with the following new clause 12.1
(Commitment Commission):
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(a) |
The Borrower shall pay to the Agent (for the account of each Lender) a fee in dollars computed at the rate of (i) for the period commencing on the date of
this Agreement (the
start date)
and ending on 5 March 2018, 2 per cent per annum and (ii) for the period commencing on 6 March 2018
and at ending on the Last Availability Date, 1.30 per cent per annum, in each case on that Lender’s Available Commitment calculated from the start date.
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(b) |
The Borrower shall pay the accrued commitment commission on the last day of the period of three Months commencing on the start date, on the last day of each
successive period of three Months, on the Last Availability Date and, if cancelled in full, on the cancelled amount of the relevant Lender’s Available Commitment at the time the cancellation is effective.
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(c) |
No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a
Defaulting Lender.”;
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3.1.8 |
by deleting in their entirety the words
“and Additional
Unacceptable Countries”
from the heading of clause 19.36 (
Sanctions and Additional Unacceptable Countries)
and by also
deleting in its entirety paragraph (c) of the said clause;
|
3.1.9 |
by deleting in their entirety the definitions of
Fleet
Market Value
and
Total Debt
in clause 21.1
(Financial definitions)
of the Principal Agreement and by replacing them with the following new definitions of
Fleet Market Value
and
Total Debt:
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(a) |
from the date of this Agreement until one day prior to the Effective Date, the aggregate market value of all Fleet Vessels, as most recently determined
pursuant to valuations of such vessels provided to the Agent and made in accordance with the provisions of clause 27
(Minimum security
value)
which shall apply for the purposes of this definition mutatis mutandis to each Fleet Vessel as if each such vessel were the Ship; and
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(b) |
from the Effective Date and at all times thereafter, the aggregate market value of all:
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(i) |
Fleet Vessels; and
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(ii) |
JV Vessels, as adjusted to reflect the relevant ownership percentage in such JV Vessels of the relevant Group Member,
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(a) |
from the date of this Agreement until one day prior to the Effective Date, the Group’s liabilities in respect of principal under any Financial Indebtedness
(provided however that any principal under any Financial Indebtedness incurred only by the Guarantor which is not secured by security provided over an asset of the Group, shall not be taken into account); and
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(b) |
from the Effective Date and at all times thereafter:
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(i) |
the Group’s liabilities in respect of principal under any Financial Indebtedness (provided however that any principal under any Financial Indebtedness
incurred only by the Top Ships Guarantor which is not secured by security provided over an asset of the Group, shall not be taken into account); and
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(ii) |
all liabilities of all Joint Ventures in respect of principal under any Financial Indebtedness secured by security provided over a JV Vessel, each such
liability adjusted to reflect the relevant Group Member’s ownership percentage in such JV Vessel.”;
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3.1.10 |
by inserting in the correct alphabetical order in clause 21.1
(Financial definitions)
of the Principal Agreement the following new definition of
JV Vessels:
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3.1.11 |
by deleting in their entirety the words
“and Additional
Unacceptable Countries”
from the heading of clause 22.14 (
Sanctions and Additional Unacceptable Countries
)
and by also deleting in its entirety paragraph (f) of the said clause;
|
3.1.12 |
by adding the word “relevant” before the words “Charter Assignment” in paragraph {b)(ii)(A) in clause 24.8
(Chartering)
of the Principal Agreement;
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3.1.13 |
by deleting clauses 28.3 (
Releases
and waivers
)
to 28.7
(Payment of Charter Earnings
)
(inclusive) of the Principal Agreement and replacing them with the following new clauses 28.3 (
Releases
and waivers
)
to 28.7
(Payment
of Charter Earnings
)
(inclusive):
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(a) |
subject to paragraph (b) below, shall ensure that the Agent receives a copy of that notice acknowledged by each addressee; or
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(b) |
if such Charter Documents are freely assignable, the Borrower shall (and it shall procure that the Charterer will) use commercially reasonable efforts to
ensure that the Agent receives a copy of that notice acknowledged by each addressee,
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3.1.14 |
by replacing the email address reading “legal@centralmare.com” in the first and second tables in Schedule 1
(The original parties)
of the Principal Agreement with the email address reading “louka@loukapartners.com”;
|
3.1.15 |
by deleting in their entirety the fourth, fifth and sixth tables in Schedule 1
(The original parties)
of the Principal Agreement and by replacing them with the following ones:
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Name
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Amsterdam Trade Bank N.V.
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||
Facility Office, address and attention details for notices
|
Non-administrative matters:
World Trade Center
Tower I, Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Iraklis Tsirigotis / Vassilis Kolovos Email: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl Cc: shipping.finance@atbank.nl Telephone No.: +31 (0) 205 209 404 /
+31 (0) 205 209 204
Administrative matters:
World Trade Center
Tower I, Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Ruben Paniry
Email: shipping.finance@atbank.nl
Cc: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl
Telephone No.: +31 (0) 205 209 247 / +31 (0) 205 209 404 / +31 (0) 205 209 204 |
Name
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Amsterdam Trade Bank N.V.
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||
Facility Office, address and attention details for notices
|
Non-administrative matters:
World Trade Center Tower I, Level 6 Strawinskylaan 1939
1077 XX Amsterdam The Netherlands Attn: Iraklis Tsirigotis / Vassilis Kolovos Email: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl Cc: shipping.finance@atbank.nl Telephone No.: +31 (0) 205 209 404 /
+31 (0) 205 209 204
Administrative matters:
World Trade Center
Tower I, Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Ruben Paniry
Email: shipping.finance@atbank.nl
Cc: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl
Telephone No.: +31 (0) 205 209 247 / +31 (0) 205 209 404 / +31 (0) 205 209 204 |
Name
|
Amsterdam Trade Bank N.V.
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||
Address and attention detail for notices
|
World Trade Center
Tower I, Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Iraklis Tsirigotis / Vassilis Kolovos Email: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl |
3.1.16 |
by deleting in its entirety the fourth row in Schedule 2 (
Ship
information)
of the Principal Agreement and replacing it with the following one:
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Scheduled Delivery Date:
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30 September 2018
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||
3.1.17 |
by deleting in their entirety the ninth and tenth rows in Schedule 2 (
Ship information)
of the Principal Agreement and replacing them with the following ones:
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Charter description:
|
together (a) the time charter dated 20 September 2017 between the Borrower as owner and the Charterer as time charterer and (b) the time
charter dated 28
September 2017 between the Charterer as disponent owner and the Sub-charterer as time charterer
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||
Charterer:
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Central Tankers Chartering Inc.
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Sub-charterer:
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Shell Tankers Singapore Private Limited
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3.2 |
Continued force and effect
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4 |
Representations and warranties
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4.1 |
Primary representations and warranties
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4.1.1 |
Existing representations and warranties
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4.1.2 |
Corporate power
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4.1.3 |
Binding obligations
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4.1.4 |
No conflict with other obligations
|
4.1.5 |
No filings required
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4.1.6 |
Choice of law
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4.1.7 |
Consents obtained
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4.2 |
Repetition of representations and warranties
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5 |
Conditions
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5.1 |
Documents and evidence
|
5.2 |
General conditions precedent
|
5.2.1 |
the representations and warranties in clause 4
(Representations
and warranties)
being true and correct on the Effective Date as if each was made with respect to the facts and circumstances existing at such time; and
|
5.2.2 |
no Default having occurred and continuing at the time of the Effective Date .
|
5.3 |
Waiver of conditions precedent
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6 |
Relevant Parties’ confirmation
|
6.1 |
each of the Finance Documents to which it is a party, and its obligations thereunder, shall remain in full force and effect notwithstanding the amendments
made to the Principal Agreement by this Agreement; and
|
6.2 |
with effect from the Effective Date, references to “the Agreement” or “the Loan Agreement” or “the Facility Agreement” in any of the other Finance Documents
to which it is a party shall henceforth be references to the Principal Agreement as amended and/or supplemented by this Agreement and as from time to time hereafter further amended, supplemented and/or restated and shall also be deemed
to include the obligations of each Relevant Party hereunder.
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7 |
Expenses
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7.1 |
Expenses
|
7.1.1 |
in connection with the negotiation, preparation, execution and, where relevant, registration of this Agreement or the other Relevant Documents and of any
amendment or extension of, or the granting of any waiver or consent under, any Relevant Document; and
|
7.1.2 |
in contemplation of, or otherwise in connection with, the enforcement of, or preservation of any rights under any Relevant Document or otherwise in respect of
the monies owing and obligations incurred under any Relevant Document,
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7.2 |
Value Added Tax
|
7.3 |
Stamp and other duties
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8 |
Miscellaneous and notices
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8.1 |
Notices
|
8.2 |
Counterparts
|
8.3 |
Relevant Parties’ obligations
|
9 |
Governing law
|
9.1 |
Law
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9.2 |
Jurisdiction of English courts
|
9.2.1 |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or any non-contractual obligations
connected with it (including a dispute regarding the existence, validity or termination of this Agreement) (a
Dispute
).
|
9.2.2 |
The parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Relevant Party will
argue to the contrary.
|
9.2.3 |
Notwithstanding clause 9.2.1, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
9.3 |
Service of process
|
9.3.1 |
Without prejudice to any other mode of service allowed under any relevant law, each Relevant Party:
|
|
(a) |
irrevocably appoints Top Properties (London) Limited, 247 Gray’s Inn Road, London WC1X 8QZ, England as that Relevant Party’s agent for service of process in
relation to any proceedings before the English courts in connection with this Agreement and/or any non-contractual obligations connected with it;
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(b) |
agrees that failure by a process agent to notify the relevant Relevant Party of the process will not invalidate the proceedings concerned; and
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(c) |
agrees that if any person appointed as process agent for a Relevant Party is unable for any reason to act as agent for service of process, that Relevant
Party must immediately (and in any event within ten 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.
|
9.4 |
Contracts (Rights of Third Parties) Act 1999
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Name
|
Amsterdam Trade Bank N.V.
|
||
Facility Office, address and attention details for notices
|
Non-administrative matters:
World Trade Center
Tower I, Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Iraklis Tsirigotis / Vassilis Kolovos Email: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl Cc: shipping.finance@atbank.nl Telephone No.: +31 (0) 205 209 404 /
+31 (0) 205 209 204
Administrative matters:
World Trade Center
Tower I, Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Ruben Paniry
Email: shipping.finance@atbank.nl
Cc: i.tsirigotis@atbank.nl / v.kolovos@atbank.nl
Telephone No.: +31 (0) 205 209 247 / +31 (0) 205 209 404 / +31 (0) 205 209 204 |
1 |
Corporate authorisations
|
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(a) |
Constitutional documents
|
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(b) |
Resolutions
|
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(i) |
being true and correct;
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|
(ii) |
being duly passed at meetings of the directors of such Relevant Party and, as the case may be, of the shareholders of such Relevant Party each duly convened
and held;
|
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(iii) |
not having been amended, modified or revoked; and
|
|
(iv) |
being in full force and effect,
|
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(c) |
Certificate of incumbency
|
2 |
Consents
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3 |
Legal opinions
|
4 |
Process agent
|
5 |
Expenses
|
6 |
New Loan Agreement
|
EXECUTED
as a
DEED
|
)
|
||
by Alexandros Tsirikos
|
)
|
/s/ Alexandros Tsirikos
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for and on behalf of
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)
|
Attorney-in-fact
|
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ASTARTE INTERNATIONAL INC.
|
)
|
||
in the presence of:
|
)
|
||
/s/ Angeliki Skindilia
|
|||
Witness
|
|||
Name: Angeliki Skindilia
|
|||
Address: Norton Rose Fulbright Greece
|
|||
Occupation: Associate
|
|||
EXECUTED
as a
DEED
|
)
|
||
by Alexandros Tsirikos
|
)
|
/s/ Alexandros Tsirikos
|
|
for and on behalf of
|
)
|
Attorney-in-fact
|
|
TOP SHIPS INC.
|
)
|
||
in the presence of:
|
)
|
||
/s/ Angeliki Skindilia
|
|||
Witness
|
|||
Name: Angeliki Skindilia
|
|||
Address: Norton Rose Fulbright Greece
|
|||
Occupation: Associate
|
|||
By:
|
/s/ Angeliki Skindilia
|
|
Angeliki Skindilia
|
||
Attorney-in-fact
|
By:
|
/s/ Angeliki Skindilia
|
|
Angeliki Skindilia
|
||
Attorney-in-fact
|
By:
|
/s/ Angeliki Skindilia
|
|
Angeliki Skindilia
|
||
Attorney-in-fact
|
1. |
Definitions
|
2. |
Charter Period
|
3. |
Delivery (See Additional Clause 35 (Delivery of the Vessel)
|
4. |
Time for Delivery (See Additional Clause 35 (Delivery of the Vessel)
|
5. |
Cancelling (See Additional Clause 33 Effectiveness of this Charter)
|
6. |
Trading Restrictions
|
7. |
Surveys on Delivery and Redelivery
|
8. |
Inspection
|
9. |
Inventories, Oil and Stores
|
10. |
Maintenance and Operation
|
|
(ii) |
New Class and Other Safety Requirements
- In the event of any
improvement, structural changes or new equipment becoming necessary for the continued operation of the Vessel by reason of new class requirements or by compulsory legislation
|
|
(iii) |
Financial Security
- The Charterers shall maintain financial
security or responsibility in respect of third party liabilities as required by any government, including federal, state or municipal or other division or authority thereof, to enable the Vessel, without penalty or charge, lawfully to
enter, remain at, or leave any port, place, territorial or contiguous waters of any country, state or municipality in performance of this Charter without any delay. This obligation shall apply whether or not such requirements have
been lawfully imposed by such government or division or authority thereof.
|
11. |
Hire (See Additional Clause 41 (Charterhire))
|
12. |
Mortgage (See also Additional Clause 44 (Owners’ Right to Mortgage))
|
|
|
*) |
|
|
|
13. |
Insurance and Repairs (See also Additional Clause 48 (Insurances, Total Loss))
|
|
|
15. |
Redelivery (See also Additional Clause 51 (Redelivery))
|
16. |
Non-Lien
|
17. |
Indemnity (See also Clause 43 (Indemnity)
|
18. |
Lien
|
19. |
Salvage
|
20. |
Wreck Removal
|
21. |
General Average
|
22. |
Assignment, Sub-Charter and Sale (See Additional Cluase 53 (Assignment and set-off)
|
23. |
Contracts of Carriage
|
*) |
(a)
The Charterers are to procure that all
documents issued during the Charter Period evidencing the terms and conditions agreed in respect of carriage of goods shall contain a paramount clause incorporating any legislation relating to carrier's liability for cargo
compulsorily applicable in the trade; if no such legislation exists, the documents shall incorporate the Hague-Visby Rules. The documents shall also contain the New Jason Clause and the Both-to-Blame Collision Clause.
|
|
|
|
|
24. |
|
25. |
Requisition/Acquisition
|
26. |
War
|
|
(i) |
to comply with all orders, directions, recommendations or advice as to departure, arrival, routes, sailing in convoy, ports of call, stoppages,
destinations, discharge of cargo, delivery, or in any other way whatsoever, which are given by the Government of the Nation under whose flag the Vessel sails, or any other Government, body or group whatsoever acting with the power to
compel compliance with their orders or directions;
|
|
(ii) |
to comply with the orders, directions or recommendations of any war risks underwriters who have the authority to give the same under the terms of the war
risks insurance;
|
|
(iii) |
to comply with the terms of any resolution of the Security Council of the United Nations, any directives of the European Community, 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 Owners are subject, and to obey the orders and directions of those who are charged with their
enforcement.
|
27. |
Commission
|
28. |
Termination (See Additional Clauses 49 (Termination Events) and 50 Owners’ rights on termination))
|
|
|
|
|
|
|
|
|
|
29. |
Repossession
|
30. |
Dispute Resolution
|
*) |
(a)
This
Contract shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this
Contract 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.
|
|
|
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31. |
Notices (See Additional Clause 52 (Communications))
|
OPTIONAL
PART |
|
|
2. |
|
|
|
|
|
|
|
OPTIONAL
PART |
OPTIONAL
PART |
|
|
|
|
|
|
CLAUSE
|
PAGE
|
32. |
DEFINITIONS
|
32.1 |
In this Charter, unless the context otherwise requires, the following expressions shall have the following meanings:
|
|
(a) |
in respect of technical management of the Vessel,
CENTRAL MARE INC.
of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960; and
|
|
(b) |
in respect of commercial management of the Vessel,
CENTRAL SHIPPING INC.
of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960.
|
|
(a) |
in relation to a day on which a payment is to be made or calculated in Dollars, a day (other than a Saturday or a Sunday) on which banks are
open for business in Amsterdam, Athens, New York, Beijing and Hong Kong; and
|
|
(b) |
in relation to any other day, a day (other than a Saturday or a Sunday) on which banks are open for business in Amsterdam, Athens, Beijing and
Hong Kong.
|
|
(a) |
Delivery not occurring after the delivery under the MOA takes place; and/or
|
|
(b) |
this Charter is terminated or cancelled prior to the expiry of the Charter Period for whatsoever reason; and/or
|
|
(c) |
the lease of the Vessel under this Charter being prevented or early terminated due to the occurrence of a Termination Event.
|
|
(a) |
by means of the holding of shares, or the possession of voting powers in or in relation to such Security Party; or
|
|
(b) |
as a result of any powers conferred by the articles of association or any other document regulating such Security Party.
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule I (
Repurchase Price Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3,
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule VII (
Early Termination Amount Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
),
|
|
(a) |
any claim by, or directive from, any applicable governmental, judicial or other regulatory authority alleging breach of, or non-compliance with,
any Environmental Laws or Environmental Approvals or otherwise howsoever relating to or arising out of an Environmental Incident; or
|
|
(b) |
any claim by any other third party howsoever relating to or arising out of Environmental Incident (and, in each such case, “
claim
” shall means a claim for damages, clean-up costs, compliance, remedial action or otherwise); or
|
|
(c) |
any Proceedings arising from any of the foregoing.
|
|
(a) |
any release of Environmentally Sensitive Material from the Vessel; or
|
|
(b) |
any incident in which Environmentally Sensitive Material is released from a vessel other than the Vessel and where the Vessel is actually or
potentially liable to be arrested as a result and/or the Charterers or the Manager or any manager of the Vessel are actually or allegedly at fault or otherwise liable.
|
|
(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 respect of 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 hire 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
|
|
(h) |
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
|
|
(i) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule V (
Owners’ Costs Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
).
|
|
(a) |
a guarantee to be executed by Guarantor A in favour of the Owners in respect of,
inter alia
, the obligations of the Charterers under this Charter in the form acceptable to the Owners; and
|
|
(b) |
a guarantee to be executed by Guarantor B in favour of the Owners in respect of,
inter alia
, the obligations of the Charterers under this Charter in the form acceptable to the Owners.
|
|
(a) |
with respect to the first Hire Calculation Period:
|
|
(i) |
in the case of the Delivery Date falls on a day which is before the 15
th
day of the relevant month, the period commencing from the Delivery Date and
ending on the 15
th
day of that month;
|
|
(ii) |
in the case of the Delivery Date falls on a date which is on or after the 15
th
day of the relevant month, the period commencing from the Delivery
Date and ending on the 15
th
day of the succeeding month after the Delivery Date; and
|
|
(b) |
with respect to each subsequent Hire Calculation Period, each successive period commencing on the first day after the expiry of the immediate
preceding Hire Calculation Period and ending on the 15
th
day of the next succeeding calendar month, except that if a Hire Calculation Period would otherwise extend beyond the Charter Period Expiry Date, then such Hire
Calculation Period shall end on the Charter Period Expiry Date.
|
|
(a) |
the assets, liabilities, financial results of or operations or financial condition, of any Security Party ;
|
|
(b) |
the performance of the obligations of any Security Party under this Charter and/or any Transaction Document to which it is a party; or
|
|
(c) |
the validity, legality or enforceability of any Transaction Document to which it is a party.
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule V (
Owners’ Costs Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
).
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule I (
Repurchase Price Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
).
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule I (
Repurchase Price Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
),
|
|
(a) |
the Charterer Account Security Deed;
|
|
(b) |
the General Assignment;
|
|
(c) |
the Guarantees;
|
|
(d) |
the Share Charge;
|
|
(e) |
the Manager’s Undertaking; and
|
|
(f) |
any other documents which may be executed by any Security Party in favour of the Owners and designated by the Owners as a “Security Document”,
|
|
(a) |
the Charterers;
|
|
(b) |
the Guarantors; and
|
|
(c) |
a party (other than the Owners) to any Security Document (for the avoidance of doubt, always excluding the Manager and the Sub-Charterer),
|
|
(a) |
the time charter dated 7 April 2014 and entered into between the Charterers, as owner, and the Sub-Charterer, as time charterer, as the same may
be supplemented, amended or extended from time to time; or
|
|
(b) |
any other sub-charter permitted under this Charter and entered into by the Charterers, as owner, from time to time.
|
|
(a) |
DS Norden A/S, a company incorporate under the laws of Denmark and having its registered office at Dampskibsselskabet NORDEN A/S, Strandvejen
52, DK-2900 Hellerrup, Denmark; or
|
|
(b) |
any other party (that are not the Charterers) to a Sub-Charter.
|
|
(a) |
all Charter-hire due and payable, but unpaid, under this Charter up to (and including) the Termination Date together with interest accrued
thereon pursuant to Clause 42.3 from the due date for payment thereof to the Termination Date;
|
|
(b) |
any other sums, other than the Charter-hire, due and payable, but unpaid, under this Charter and the other Transaction Documents together with
interest accrued thereon pursuant to Clause 42.3 hereof up to the Termination Date;
|
|
(c) |
if the Termination Date falls:
|
|
(i) |
before the 3
rd
Anniversary and on an Early Termination Date, an amount equal to the Early Termination Amount applicable to such Early Termination
Date; and
|
|
(ii) |
on or after the 3
rd
Anniversary and on a Purchase Option Date, an amount equal to the Repurchase Price applicable to such Purchase Option Date;
|
|
(d) |
if the Termination Date falls:
|
|
(i) |
before the 3
rd
Anniversary and on a date that is not an Early Termination Date, an amount equal to the aggregate of (A) the Early Termination Amount
applicable to the Early Termination Date immediately preceding the Termination Date, and (B) an amount equal to (X-Y)*Z, where X = the Early Termination Amount applicable to the Early Termination Date immediately preceding the Termination
Date, Y = the Early Termination Amount applicable to the Early Termination Date immediately succeeding the Termination Date, and Z = the number of days elapsed between the Early Termination Date immediately preceding the Termination Date
and the Termination Date; and
|
|
(ii) |
on or after the 3
rd
Anniversary and on a date that is not a Purchase Option Date, an amount equal to the aggregate of (A) the Repurchase Price
applicable to the Purchase Option Date immediately preceding the Termination Date, and (B) an amount equal to (X-Y)*Z, where X = the Repurchase Price applicable to the Purchase Option Date immediately preceding the Termination Date, Y =
the Repurchase Price applicable to the Purchase Option Date immediately succeeding the Termination Date, and Z = the number of days elapsed between the Purchase Option Date immediately preceding the Termination Date and the Termination
Date;
|
|
(e) |
an amount equal to two point five per cent. (2.50%) of the Early Termination Amount or the Repurchase Price (as the case may be) applicable on
such Termination Date;
|
|
(f) |
all liabilities, costs and expenses (including, without limitation, legal fees) so incurred in relation to locating or 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 51 (Redelivery) together with interest thereon pursuant
to Clause 42.3 from the date on which the relevant Loss was suffered by the Owners;
|
|
(g) |
any and all Losses incurred or suffered by the Owners as a result of the
|
|
(h) |
any and all Breakage Costs; and
|
|
(i) |
the applicable interest accrued on the sums under the above items calculated pursuant to Clause 42.3 from the due date to the actual date of
payment.
|
|
(a) |
actual or constructive loss or compromised or arranged total loss of the Vessel, or
|
|
(b) |
the Requisition 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 Owners within three (3) Months after such an incident.
|
|
(a) |
in the case of an actual total loss of the Vessel, on the actual date and at the time such Vessel was lost or, if such date is not known, on the
date on which such Vessel was last reported; or
|
|
(b) |
in the case of a constructive total loss of the Vessel, upon the date and at the time notice of abandonment of the Vessel is given to the
insurers of the Vessel (provided a claim for total loss is admitted by such insurers) or, if such insurers do not forthwith admit such a claim, on the date and at the time at which either a total loss is subsequently admitted by the
insurers or a total loss is subsequently adjudged by a competent court of law or arbitration tribunal to have occurred. The Charterers, upon the request of the Owners, shall promptly execute such documents to enable the Owners to abandon
the Vessel and claim a constructive Total Loss and shall give all assistances in pursuing the said claim; or
|
|
(c) |
in the case of a compromised or arranged total loss, on the date upon which a binding agreement as to such compromised or arranged total loss
has been entered into by the insurers of the Vessel; or
|
|
(d) |
in the case of Requisition, on the date when it is determined by the Approved Insurers or the approved insurers the Owners is irretrievably
deprived of the Vessel; or
|
|
(e) |
in case of 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, the date on the expiry of six (6) Months after such an incident or such other shorter period as the Owners may, in their sole
discretion, decide or the date when the assured has given notice of abandonment to the insurers.
|
|
(a) |
this Charter;
|
|
(b) |
the MOA;
|
|
(c) |
the Security Documents;
|
|
(d) |
all notices, amendments, addenda, acknowledgements, consents, certificates, instruments, deeds, charges and other documents and/or agreements
issued or entered into or, as the case may be, to be issued or entered into pursuant to any of the foregoing; and
|
|
(e) |
any other document designated as such by the Owners and the Charterers.
|
32.2 |
The headings in this Charter do not affect its interpretation.
|
32.3 |
Construction
|
|
(i) |
the
“Owners”
, the
“Charterers”
, any
“Guarantor”
, any
“Security Party”
, any “
Sub-Charterer
”
any
“party”
shall be construed as to include its successors in title, permitted assigns and permitted transferees;
|
|
(ii) |
“assets”
includes present and future
properties, revenues and rights of every description;
|
|
(iii) |
a
“Transaction Document”
or any other
agreement or instrument is a reference to that Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
|
(iv) |
“indebtedness”
includes any obligation
(whether incurred as principal or surety) for the payment or repayment of money, whether present or future, actual or contingent, and shall include indebtedness incurred in respect of (i) money borrowed or raised, (ii) any bond, note,
loan stock, debenture or similar instrument, (iii) acceptance or documentary credit facilities, (iv) deferred payments for assets or services acquired, (v) rental payments under and any amounts payable on termination of leases (whether in
respect of ships, land machinery equipment or otherwise) entered into primarily as a method of raising finance or of financing the acquisition of the asset leased, (vi) guarantees, bonds, stand-by letters of credit or other instruments
issued in connection with the performance of contracts and (vii) guarantees or other assurances against financial loss in respect of Indebtedness of any person falling within any of paragraphs (i) to (vi) above;
|
|
(v) |
a
“person”
includes any individual,
firm, company, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
|
(vi) |
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;
|
|
(vii) |
a “
Termination Event
” is “continuing” if
it has not been waived and/or remedied;
|
|
(viii) |
a provision of law is a reference to that provision as amended or re-enacted; and
|
|
(ix) |
a time of day is a reference to Beijing time.
|
33. |
EFFECTIVENESS OF THIS CHARTER
|
33.1 |
This Charter shall not become effective until all of the following conditions have been fulfilled:
|
|
(a) |
the execution of this Charter by both parties hereto; and
|
|
(b) |
the Owners receiving, contemporaneously with the execution of this Charter, the originals of the following duly executed documents:
|
|
(i) |
the MOA; and
|
|
(ii) |
the Security Documents;
|
33.2 |
Notwithstanding any provision of Clause 33.1, Clause 40.1 (
Charter
Arrangement Fee
), Clause 42 (
Payments
) and Clause 43 (
Indemnity
) shall take effect upon the execution of this Charter.
|
33.3 |
Unless otherwise agreed by the parties hereto in writing, in the event that:
|
|
(a) |
the MOA is cancelled, terminated, rescinded or otherwise ceases to remain in full force and effect for any reason prior to the Delivery Date; or
|
|
(b) |
the Vessel is not delivered to the Owners in accordance with the terms of the MOA on or before the MOA Cancelling Date,
|
33.4 |
With immediate effect upon the Charterers’ receipt of the notice of cancellation from the Owners in accordance with Clause 33.3:
|
|
(a) |
this Charter shall be deemed to be cancelled forthwith and the Owners’ obligations under this Charter shall immediately be terminated and
discharged (with the exception of Clause 17 (
Indemnity
) (Part II) and Clause 43 (
Indemnity
)); and
|
|
(b) |
the Charterers shall forthwith pay to the Owners the aggregate of the following amounts:
|
|
(i) |
any and all costs and expenses (including, without limitation to, legal fees) incurred by the Owners in connection with the entering into of this Charter, the
MOA, the Transaction Documents and the transactions contemplated therein;
|
|
(ii) |
any unpaid Charter Arrangement Fee (irrespective of whether such unpaid balance has become due and payable in accordance with Clause 40.1 (
Charter Arrangement Fee
)), it being understood that such payment shall not be construed as a penalty but shall represent an agreed
estimate of the loss and damage suffered by the Owners in entering into this Charter and shall therefore be paid as compensation to the Owners;
|
|
(iii) |
any and all Breakage Costs incurred by the Owners as a result of such cancellation; and
|
|
(iv) |
all other amounts due and payable (other than the Termination Sum) but unpaid by the Charterers under this Charter together with interest accruing thereon
pursuant to Clause 42.3.
|
34. |
CONDITIONS PRECEDENT
|
34.1 |
The Owners will not be obliged to charter the Vessel to the Charterers in accordance with the terms and conditions of this Charter unless the Owners, on or
before the Delivery Date, has received all of the documents and other evidences listed in Schedule II (
Conditions Precedent
) in form
and substance satisfactory to the Owners.
|
34.2 |
The Owners will only be obliged to charter the Vessel to the Charterers in accordance with the terms and conditions of this Charter if on the Delivery Date:-
|
|
(a) |
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;
|
|
(b) |
each of the representations and warranties contained in Clause 46 (
Representations and Warranties
) is true and correct in all material aspects by reference to the facts and circumstances then existing; and
|
|
(c) |
delivery of the Vessel from the Charterers to the Owners under and subject to the terms of the MOA.
|
34.3 |
The conditions precedent set out in Schedule II (
Conditions
Precedent
) and this Clause 34 are for the sole benefit of the Owners and may be waived by the Owners in whole or in part, with or without conditions, on or before the Delivery Date without prejudicing the right of the Owners to
require fulfilment of such conditions in whole or in part at any time thereafter.
|
34.4 |
The Owners may in its discretion deliver the Vessel to the Charterers under this Charter notwithstanding that one or more of the conditions precedent set out in
Clause 34.1 or Clause 34.2 have not been satisfied by the Delivery Date, in which event the Charterers shall procure the satisfaction of the relevant conditions precedent within seven (7) days thereafter or such longer period as the
Owners in its absolute discretion shall agree in writing.
|
35. |
DELIVERY OF THE VESSEL
|
35.1 |
As at the date of this Charter, the Owners have entered into the MOA with the Sellers. The Charterers hereby confirm that they have reviewed, received and
agreed to the formof the MOA (or copies thereof).
|
35.2 |
The Owners will deliver and the Charterers will take delivery of the Vessel under this Charter immediately, which to the extent possible shall be deemed to take
place simultaneously, after the Sellers deliver the Vessel to the Owners under and subject to the terms of the MOA upon the Delivery Date, irrespective of whether or not the Charterers take the possession and/or use of the Vessel, subject
to which, the Charterers will accept the Vessel on an “as is where is” basis on delivery under this Charter. The Charterers shall not be entitled for any reason whatsoever to refuse to accept delivery of the Vessel under this Charter.
|
35.3 |
The Delivery Date for the purpose of this Charter shall be the date when the Vessel is actually delivered by the Charterers (as sellers) to the Owners (as
buyers) pursuant to the MOA. The Owners shall be under no responsibility for any losses or damage as a result of any delay in delivery of the Vessel to the Charterers for whatsoever reason.
|
35.4 |
Without prejudice to the provisions of Clause 35.2, the Owners and the Charterers shall on the Delivery Date sign an Acceptance Certificate evidencing delivery
of the Vessel hereunder and delivery of which will constitute:
|
|
(a) |
irrevocable, final and conclusive acceptance of the Vessel by the Charterers for the purposes of this Charter;
|
|
(b) |
irrevocable, final and conclusive evidence that, for the purposes of the obligations and liabilities of the Owners hereunder or in connection
herewith, the Vessel is at the time of delivery to the Charterers 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
Charterers and free and clear of all Encumbrances and debts of whatsoever nature; and
|
|
(c) |
irrevocable, final and conclusive evidence that the Vessel is satisfactory in all respects and complies with the requirements of this Charter.
|
35.5 |
The Charterers shall pay to the Owners any of the Delivery Costs from time to time within five (5) Banking Days after presentation of evidence.
|
36. |
EXCLUSION OF WARRANTIES
|
36.1 |
No responsibility for Vessel
|
|
(a) |
the Owners are not the manufacturer or original supplier of the Vessel which has been purchased by the Owners pursuant to the MOA and therefore
the Owners make no condition, term, representation or warranty, express or implied (and whether statutory, contractual or otherwise) as to the Owners’ title to the Vessel or as to the seaworthiness, merchantability, classification,
condition, design, quality, 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. Delivery (or, as the case may be, deemed delivery) of the Vessel to the Charterers under this Charter shall be conclusive proof evidencing that, for the purposes of the obligations and liabilities of
the Owners hereunder or in connection herewith, the Vessel is at that time seaworthy and in all aspects satisfies any intended use of the Charterers, 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 Charterers and free and clear of all Encumbrances and debts of whatsoever nature, other than the Encumbrances permitted or created by the Owners pursuant to the terms
hereof, and the Charterers hereby waive all their rights in respect of any warranty or condition implied (whether statutory or otherwise) on the part of the Owners and all claims against the Owners howsoever the same might arise at any
time in respect of the physical condition of the Vessel, or arising out of the construction, operation or performance of the Vessel and the chartering thereof under this Charter (including, without limitation, in respect of the
seaworthiness or otherwise of the Vessel);
|
|
(b) |
the condition of the Vessel on Delivery to the Charterers under this Charter is the sole responsibility of the Charterers;
|
|
(c) |
the Vessel is, or will upon Delivery be, satisfactory for the business of the Charterers and any intended use of the Charterers;
|
|
(d) |
the Owners have purchased the Vessel solely for the purpose of leasing the Vessel to the Charterers under this Charter and the Owners enter into
this Charter at the request of, but not on behalf of, the Charterers; and
|
|
(e) |
the Owners will have no responsibility whatsoever for any loss of profit resulting directly or indirectly from any defect or alleged defect in
the Vessel.
|
36.2 |
As Is, Where Is
|
36.3 |
Charterers’ Acknowledgment
|
36.4 |
The Charterers hereby waive 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 Owners and all of its claims against the Owners howsoever and whatsoever that may arise in respect of the Vessel or the Owners’ 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).
|
36.5 |
The Charterers agree that the Owners 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 Charterers or any other person as a result of the Vessel being unusable.
|
37. |
FLAG AND CLASS
|
37.1 |
The Vessel shall be registered in the ownership of the Owners under the Flag State (with a proper demise charter notation in respect of this Charter) for the
duration of the Charter and the Charterers shall provide full cooperation and assistance and bear all the costs and expenses to effect such registration.
|
37.2 |
The Charterers shall ensure that the Vessel shall be entered and maintained in the highest class under 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 Owners and/or the Lenders) throughout the duration of this Charter, free of all overdue recommendations and conditions, and comply with the rules and
regulations of the Classification Society.
|
38. |
MANAGEMENT
|
38.1 |
The technical and commercial management of the Vessel after Delivery and during the Charter Period shall be with the Manager.
|
38.2 |
The Owners’ prior written consent shall be obtained in case of any change of the
|
39. |
CHARTER PERIOD AND PURCHASE OPTION
|
39.1 |
The period of chartering of the Vessel under this Charter shall commence on the Delivery Date and end on the Charter Period Expiry Date unless otherwise
terminated in accordance with the terms hereof (the “
Charter Period
”).
|
39.2 |
On and after the 3
rd
anniversary of the Delivery Date until the Charter Period Expiry Date, the Charterers have the option to purchase the Vessel
from the Owners on any Purchase Option Date, provided all the following conditions are satisfied:-
|
|
(a) |
the Charterers shall serve the Owners at least sixty (60) days’ prior written notice (the “
Purchase Option Notice
”), which shall specify the Purchase Option Date on which the Charterers intend to purchase the Vessel;
|
|
(b) |
no Termination Event has occurred and is continuing; and
|
|
(c) |
on or before the scheduled Purchase Option Date (as specified in the Purchase Option Notice), the Charterers shall have paid to the Owners the
aggregate amount of the following sums (the “
Purchase Option Sum
”):
|
|
(i) |
the Repurchase Price applicable to such Purchase Option Date;
|
|
(ii) |
if the Purchase Option Date does not fall on a Payment Date, an amount equal to the Charter-hire covering the period from the Payment Date immediately preceding
such Purchase Option Date until the Purchase Option Date (being the Daily Charter Rate multiplied by the number of days elapsed during such period);
|
|
(iii) |
all amounts (including, without limitation, Charter-hire and any Breakage Costs) due and payable under this Charter and other Transaction Documents less any
Swap Gain; and
|
|
(iv) |
all liabilities, costs and expenses (including, without limitation, legal fees) in relation to transferring title to the Charterers and/or the closing of
registration of the Vessel.
|
39.3 |
In the event the Charterers exercise their option to purchase the Vessel pursuant to Clause 39.2 on a Purchase Option Date other than the Charter Period Expiry
Date, this Charter shall be early terminated on the date on which the protocol of delivery and acceptance is signed and timed in accordance with Clause 39.4.
|
39.4 |
The Owners shall in exchange for payment of the Purchase Option Sum, at the Charterers’ costs and expense, provide the Charterers with:
|
|
(i) |
a legal Bill of Sale in respect of the Vessel transferring to the Charterers the title to the Vessel stating that the Vessel is free from all
mortgages, encumbrances and maritime liens or any other debts whatsoever duly attested and legalised or apostilled, as required by Charterers’ nominated flag state; and
|
|
(ii) |
Certificate or Transcript of Registry issued by the competent authorities on the date of delivery evidencing the Owners’ ownership of the Vessel
and that the Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by such authority to the closing meeting with the original to be sent to the Charterers as soon as possible after delivery of the Vessel.
|
39.5 |
The Charterers shall, immediately prior to the receipt of the bill of sale, furnish the Owners with a letter of indemnity (in a form satisfactory to the Owners)
whereby the Charterers and the Guarantors shall state that, among other things, the Owners have and will have no interest, concern or connection with the Vessel after the date of such letter and that the Charterers and/or the Guarantors
shall indemnify the Owners and keep the Owners indemnified forever against any claims made by any person arising in connection with the Vessel.
|
39.6 |
The sale of the Vessel in accordance with this Clause 39 (
Charter
Period and Purchase Option
) shall be on an “
as is, where is
“ basis, with the Mortgage (or Mortgages) on
the Vessel created pursuant Clause 44 (
Owners’ Right to Mortgage
) fully discharged, without any warranty or guarantee of condition,
fitness for purpose or similar type of condition warranty and without any recourse to, or representation or warranty from, the Owners. The Charterers hereby acknowledge and agree that the Owners make no condition, term, representation or
warranty, express or implied (and whether statutory or otherwise) 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.
|
39.7 |
All registration, legal or other expenses whatsoever incurred in transferring the title from the Owners to the Charterers (including, without limitation to, any
taxes, notarial, consular and other charges and expenses connected with the purchase and registration under Charterers’ flag shall be for Charterers’ account and/or the closing of the Owners’ register and transferring title to the
Charterers) shall be borne by the Charterers and paid to the Owners on demand.
|
40. |
CHARTER ARRANGEMENT FEE
|
40.1 |
Charter Arrangement Fee
|
40.2 |
Advance Hire
|
|
(a) |
The Charterers shall, on the Delivery Date, pay to the Owners by way of an irrevocable payment an amount equal to twenty nine percent (29%) of
the Purchase Price (the “
Advance Hire
”) as advance hire under this Charter, provided that the obligation of the Charterers to make
payment of the Advance Hire shall be set off against the obligation of the Owners to make payment of the Purchase Price under the MOA such that the Sellers’ Portion (as defined in the MOA) payable by the Owners (as buyers) to the
Charterers (as sellers) under the MOA shall be set-off against an amount equal to the Advance Hire.
|
|
(b) |
All Advance Hire paid pursuant to this Clause 40.2 shall bear no interest and shall be non-refundable.
|
41. |
CHARTERHIRE
|
41.1 |
The Charterers shall, on each Payment Date (in respect of which time shall be of the essence) throughout the Charter Period, pay to the Owners as hire for use
of the Vessel, the Charter-hire due and payable as of each such Payment Date in accordance with the terms of this Charter.
|
41.2 |
The Vessel shall not be deemed off-hire at any time and the Charterers’ obligation to pay all Charter-hire and all 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 (i) to (x) below,
including, without limitation:
|
|
(i) |
any set-off, counterclaim, recoupment, defence or other right which the Charterers may at any time have against the Owners or any other person
for any reason whatsoever;
|
|
(ii) |
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, security interest, 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;
|
|
(iii) |
any change, extension, indulgence or other act or omission in respect of any
|
|
(iv) |
any incapacity, disability, or defect in powers of the Charterers, or any irregular exercise thereof by, or lack of authority of, any person
purporting to act on behalf of the Charterers;
|
|
(v) |
any damage to or loss (including a Total Loss), destruction, capture, seizure, judicial attachment or arrest, forfeiture or marshal’s or other
sale of the Vessel;
|
|
(vi) |
any libel, attachment, levy, detention, sequestration or taking into custody of the Vessel or any restriction, prevention, interference,
interruption or cessation in the use or possession thereof by the Charterers for any reason whatsoever, or any inability to engage in any particular trade;
|
|
(vii) |
any insolvency, bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceedings by or against the
Charterers;
|
|
(viii) |
any failure or delay on the part of the Owners whether with or without fault on its part, in performing or complying with any of the terms or
covenants hereof;
|
|
(ix) |
any lack of due authorizations or documentation for the Vessel for any particular trade or use, or invalidity, illegality or other defect of
this Charter; or
|
|
(x) |
any circumstances which, but for this provision, might operate to exonerate the Charterers from liability, whether in whole or in part, under
this Charter.
|
42. |
PAYMENTS
|
42.1 |
Notwithstanding anything to the contrary contained in this Charter, all payments by the Charterers hereunder (whether by way of hire or otherwise) shall be made
as follows:
|
|
(a) |
in the case of Charter-hire, not later than the relevant Payment Date;
|
|
(b) |
in Dollars in immediately available funds for same day value to the Owners’ Account; and
|
|
(c) |
if any day for the making of any payment hereunder shall not be a Banking Day, the due date for payment of the same shall be the immediately
preceding Banking Day.
|
42.2 |
All payments by the Charterers 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 Charterers are so required to make any withholding or deduction from any such payment, the sum due from the Charterers
|
42.3 |
In the event of failure by the Charterers 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 them under this Charter, the Charterers shall pay, as liquidated damages and not as penalty, to the Owners on demand default interest on such hire or such other amount from the date of such failure to
the date of actual payment (both before and after any relevant judgment or winding up of the Charterers) at the rate of five per cent (5%) per annum. Any interest payable under this Charter shall accrue from day to day and shall be
calculated on the actual number of days elapsed and a three hundred and sixty (360) day year and shall be compounded at such intervals as the Owners shall determine and shall be payable on demand.
|
42.4 |
Time of payment of Charter-hire and all other sums payable under this Charter shall be of the essence of this Charter.
|
43. |
INDEMNITY
|
43.1 |
To the extent such liability is not caused by a default of the Owners hereunder, the Charterers agree at all times whether before, during or after the Charter
Period, to indemnify and keep the Owners indemnified, hold harmless against:
|
|
(a) |
all reasonable, properly incurred and documented costs and expenses incurred by the Owners as a result of its entering into and/or performance
of this Charter and other Transaction Documents, including without limitation the costs, expenses, fees, charges for legal services, evaluation, consultancy, survey, registration of the Vessel, 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 whatsoever incurred in connection with this Charter and any Transaction Document or the Vessel, and any costs, charges,
or expenses which the Charterers have agreed to pay under this Charter and which are claimed or assessed against or paid by the Owners;
|
|
(c) |
all Losses suffered or incurred by the Owners and arising out of the design, manufacture, delivery, non-delivery, purchase, importation,
registration,
|
|
(d) |
all Losses suffered or incurred by the Owners which result 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;
|
|
(e) |
all Losses suffered or incurred by the Owners in preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution,
impounding, forfeiture or detention of the Vessel, or in securing the release of the Vessel therefrom;
|
|
(f) |
all Losses suffered or incurred by the Owners with respect to or as a direct result of the presence, escape, seepage, spillage, leaking,
discharge or migration from the Ship of oil or any other hazardous substance, including without limitation, any claims asserted or arising under the US Oil Pollution Act of 1990 (as same may be amended and/or re-enacted from time to time
hereafter) or similar legislation, regardless of whether or not caused by or within the control of the Charterers;
|
|
(g) |
following a Termination Event, any Losses incurred or suffered by the Owners in connection with the Finance Documents;
|
|
(h) |
any Losses suffered or incurred by the Owners which result from any breach of the Manager’s Undertaking by the Charterers or the Manager, or
replacing the Manager and obtaining a Manager’s Undertaking from the new manager; and
|
|
(i) |
any Losses incurred or suffered by the Owners 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.
|
43.2 |
If, under any applicable law, whether as a result of judgment against the Charterers or the liquidation of the Charterers or for any other reason, any payment
to be made by the Charterers under or in connection with this Charter is made or is recovered in a currency other than the currency in which it is payable pursuant to this Charter (the “
currency of obligation
”) 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 Charterers shall as a separate and independent obligation, fully indemnify the Owners against the amount of the shortfall; and for the purposes of
this provision “rate of exchange” means the best
|
43.3 |
The indemnities contained in this Clause 43, 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 Charterers or the Owners of this Charter.
|
43.4 |
All moneys payable by the Charterers under this Clause 43 shall be paid on demand of the Owners.
|
44. |
OWNERS’ RIGHT TO MORTGAGE
|
44.1 |
The Charterers agree that the Owners shall be entitled at any time after the date of this Charter, to grant any bank or financial institution (the “
Mortgagee
”) a first ranking mortgage on the Vessel, assignment(s) of the Owners’ earnings, the Insurances and requisition compensation
thereof, and assignment(s) of any and all its rights, title, interest 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 arranged by
the Owners to finance or re-finance the purchase of the Vessel (collectively, the “
Mortgage
”).
|
44.2 |
The Charterers hereby agree and undertake to enter into any such documents as the Mortgagee shall reasonably require in relation to the aforementioned finance
or re-finance of the Vessel including without limitation assignment of insurance and requisition compensations by the Charterers, the assignment of this Charter and the other relevant Transaction Documents, and to procure that the Manager
to issue the Manager’s Undertakings provided.
|
44.3 |
The Charterers agree with the Owners to acknowledge notice of any assignment of this Charter executed in favour of the Mortgagee in the manner as required by
the Mortgagee.
|
44.4 |
All costs and expenses incurred by the Owners in connection with Mortgage shall be for the account of the Owners.
|
45. |
OWNERS’ RIGHT TO SALE
|
45.1 |
During the Charter Period, the Owners shall be entitled to transfer the title in the Vessel to any of its Affiliates; however, any transfer of title in the
Vessel to a party other than an Affiliate of the Owners shall, in the absence of a Termination Event, require the Charterers’ prior approval which shall not be unreasonably withheld or delayed.
|
45.2 |
The Charterers hereby agree and undertake that at any time upon the request of the Owners they will promptly and duly execute, sign, perfect, do and (if
required) register, and procure any Security Party and other persons to execute and do, such assurances, acts, deeds and things and (if required) register every such further assurance, document, act or thing as in the sole opinion of the
Owners may be necessary for the purpose of more effectually completing or perfecting the transfer of the Vessel (with the benefit and burden of this Charter) pursuant to Clause 45.1. All costs and expenses incurred by the Owners pursuant
to this Clause 45.2 shall be for the account of the Owners.
|
46. |
REPRESENTATIONS AND WARRANTIES
|
46.1 |
The Charterers acknowledge that the Owners have entered into this Charter in full reliance on representations by the Charterers in the following terms, and the
Charterers now warrant to the Owners that the following statements are true and accurate at the date hereof, on the Delivery Date and throughout the continuation of this Charter:
|
|
(a) |
each of the Security Parties is duly incorporated and validly existing under the laws of its respective jurisdiction of incorporation;
|
|
(b) |
each of the Security Parties 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 Documents to which it is respectively a party, and all necessary corporate, shareholder’s and other actions have been taken to authorise the execution, delivery and performance of
such documents;
|
|
(c) |
each Transaction Document to which any Security Party is a party constitutes such Security Party’s valid and legally binding and enforceable
obligations ranking at least
pari passu
with all other of its unsecured obligations and liabilities (actual or contingent) other
than any such obligations and liabilities preferred by law;
|
|
(d) |
the entry into and performance by each Security Party of the Transaction Document and Project Document to which it 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 of official authority or body;
|
|
(ii) |
its constitutional documents; or
|
|
(iii) |
any agreement, contract or other undertaking to which it is a party or which is binding on it or any of its assets;
|
|
(e) |
all consents, licences, approvals and authorisations required in connection with the entry into, performance, validity and enforceability of the
Transaction Document to which each Security Party is a party have been obtained and are, or will prior to the Delivery Date be, in full force and effect;
|
|
(f) |
any information, exhibits and reports furnished by the Charterers to the Owners in connection with the matters contemplated by this Charter or
in connection with the negotiation and preparation of the Security Documents are true and accurate in all material respects and not misleading, do not omit material facts and there are no other facts the omission of which would make any
fact or statement therein misleading;
|
|
(g) |
no litigation, arbitration or administrative proceeding is taking place against any Security Party or against any Security Party’s assets which
is likely to be adversely determined and, if adversely determined, would have a Material Adverse Effect on its ability to perform its obligations under any Transaction Document to which any Security Party is a party;
|
|
(h) |
the Charterers have not undertaken any business other than in the ordinary course of its business of owning, operating and chartering the Vessel
or as otherwise disclosed to the Owners on or prior to the date of this Charter;
|
|
(i) |
there will not be any agreement or arrangement whereby the Earnings may be shared howsoever with any other person;
|
|
(j) |
none of the Earnings, Insurances, compensation for Requisition nor any other properties or rights which are, or are to be, the subject of any of
the Security Documents nor any part thereof will be subject to any Encumbrances except under the Security Documents;
|
|
(k) |
at the time of coming into force of this Charter, the Charterers have in place, or undertakes to put in place soon thereafter, a sanctions
compliance programme, adapted to its particular circumstances;
|
|
(l) |
no Security Party is a Restricted Party nor has any Security Party or any of their respective directors, officers or employees or any person
acting on their behalf received notice or are aware of any claim, action, suit, proceeding or investigation against any of them with respect to Sanctions by a Sanctions Authority;
|
|
(m) |
the Vessel is not chartered, leased or otherwise provided directly or indirectly to any Restricted Party;
|
|
(n) |
the performance of the obligations of the Security Parties under the Transaction Documents will not involve any breach by any of them of any law
or regulatory measure relating to “money laundering” as defined in Article 1 of the Directive (2005/60/EC) of the European Parliament and of the Council of the European Communities;
|
|
(o) |
the copies of the Project Documents provided by the Charterers to the Owners in accordance with Clause 34 (
Conditions precedent
) are true and accurate copies of the originals and represent the full agreement between the parties to those Project Documents in relation to
the subject matter of those Project Documents and there are no commissions, rebates, premiums or other payments due or to become due in connection with the subject matter of those Project Documents other than in the ordinary course of
business or as disclosed to, and approved in writing by, the Owners;
|
|
(p) |
the Charterers make the representations and warranties set out in this Clause to the Owners on the date of this Charter and except as may have
already been disclosed by the Charterers in writing to, and acknowledged by, the Owners:
|
|
(i) |
the Charterers and the Operator and their respective Environmental Affiliates have each complied with the provisions of all Environmental Laws in relation to
the Vessel;
|
|
(ii) |
the Charterers 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;
|
|
(iii) |
no Environmental Claim has been made or threatened or pending against the Charterers, the Operator or, to the best of their knowledge and belief (having made
due enquiry), any of their respective Environmental Affiliates; and
|
|
(iv) |
there has been no Environmental Incident;
|
|
(q) |
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;
|
|
(r) |
none of the Security Parties has breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect;
|
|
(s) |
each of the Security Parties is the legal and beneficial owner of all assets and other property which it purports to charge, mortgage, pledge,
assign or otherwise secure pursuant to each Security Document and those Security Documents to which it is a party create and give rise to valid and effective security having the ranking expressed in those Security Documents;
|
|
(t) |
no Security Party is materially overdue in the filing of any Tax returns and no Security Party is overdue in the payment of any amount in
respect of Tax, save in the case of Taxes which are being contested on bona fide grounds;
|
|
(u) |
no claims or investigations are being made or conducted against any Security Party with respect to Taxes is reasonably likely to arise; and
|
|
(v) |
they and their Affiliates and their respective officers, directors, employees, consultants, agents and/or intermediaries have complied with, and
shall comply with, all applicable Business Ethics Laws in connection with this Charter and the other Transaction Documents.
|
46.2 |
The representations and warranties contained in Clause 46.1 hereof shall be deemed to be repeated by the Charterers on each day from the date of this Charter as
if made with reference to the facts and circumstances existing on such date, and the rights of the Owners in respect thereof shall survive the delivery or re-delivery of the Vessel hereunder.
|
47. |
UNDERTAKINGS
|
47.1 |
The Charterers undertake and agree that throughout the continuation of this Charter, the Charterers shall:
|
47.1.1 |
provide to the Owners:
|
|
(a) |
in respect of the Vessel, two valuation reports, one to be provided by an Approved Broker appointed by the Owners and the other to be provided
by an Approved Broker appointed by the Charterers, each at the Charterers’ cost:
|
|
(i) |
once per calendar year in the absence of a Termination Event, provided that in the event that the discrepancy of the market value of the Vessel between such
valuation reports exceeds twenty per cent (20%), the Charterers shall, at the Charterers’ costs, provide one further valuation report prepared by an Approved Broker appointed by the Owners, and the Market Value of the Vessel shall be the
arithmetic mean of the values of the Vessel under all three (3) Valuation Reports obtained pursuant to this Clause 47.1.1(a)(i); and
|
|
(ii) |
at any time upon the occurrence of a Termination Event;
|
|
(b) |
promptly upon becoming aware of them, relevant details of any litigation, arbitration or administrative proceedings which are current or, to its
knowledge, threatened or pending against any Security Party , which are likely, in the reasonable opinion of the Owners, to have a Material Adverse Effect on the ability of any Security Party in performing its obligations under the
Transaction Documents;
|
|
(c) |
the unaudited semi-annual financial statements of the Charterers and the Guarantors (each prepared in accordance with GAAP and, in the case of
Guarantor A, on a consolidated basis) as soon as available and in no event later than ninety (90) days after each such financial half-year;
|
|
(d) |
the annual financial statement of the Charterers (as referred to in Guarantor A’s audited consolidated annual financial statements) and the
audited annual financial statements of the Guarantors (each prepared in accordance with GAAP and, in the case of Guarantor A, on a consolidated basis) as soon as available and in no event later than one hundred and twenty (120) days after
the end of its financial year;
|
|
(e) |
promptly upon request by the Owners, copies of all class records, class certificates and survey reports and copies of all management reports;
|
|
(f) |
promptly upon request by the Owners, all such information as it may from time to time request 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;
|
|
(g) |
promptly upon request by the Owners, a written report on the condition of the Vessel prepared by or on behalf of the Charterers in a form
acceptable to the Owners;
|
|
(h) |
promptly upon request by the Owners, such further information in the possession or control of any Security Party with respect to the financial
condition and operations of any Security Party; and
|
|
(i) |
upon the request of the Owners:
|
|
(i) |
evidence that the Charterers are not in breach of any Sanctions; and
|
|
(ii) |
all relevant documentation related to the Vessel and the transported goods which the Owners are required to disclose to any Sanctions Authority.
|
47.1.2 |
at all times, in respect of the Vessel:
|
|
(a) |
subject Clause 37 (
Flag and Class
),
register (and maintain the registration of) the Vessel under the flag of the Flag State or such other flag agreed by the Owners on the Delivery Date with the name of the Owners as the owner;
|
|
(b) |
ensure that the Vessel is:
|
|
(i) |
classed and maintained in the highest class (free of outstanding recommendations or conditions of class) with the Classification Society; and
|
|
(ii) |
complies with the rules and regulations of the Classification Society;
|
|
(c) |
ensure that the Vessel is managed by the Manager on such terms as approved by the Owners in writing in advance;
|
|
(d) |
notify the Owners of any non-compliance of the Manager’s Undertaking by the Manager and procure the due performance of the Manager’s obligations
under the Manager’s Undertaking, provided if:
|
|
(i) |
an Approved Manager breaches any provision of its Manager’s Undertaking; and
|
|
(ii) |
the Charterers fail to, within a period of 15 days of them becoming aware of the occurrence of such circumstance or breach of or the receipt of a written
notification from the Owners requesting it to remedy such circumstance or breach,
|
|
(e) |
ensure material 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 Manager, the crews, employees, agents or representatives of the Charterers at all times comply with such Environmental Laws and other applicable laws;
|
|
(f) |
ensure that the Vessel is in possession of a valid Safety Management Certificate, a valid International Ship Security Certificate and an
|
|
(g) |
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)); and
|
|
(h) |
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 Owners;
|
47.1.3 |
obtain and promptly renew from time to time and, whenever so required, promptly furnish certified copies to the Owners of all such authorisations, approvals,
consents and licences as may be required under any applicable law or regulation to enable the Charterers to perform its obligations under this Charter or the Transaction Documents to which it is a party or required for the validity or
enforceability of this Charter or the Transaction Documents to which it is a party, and the Charterers shall in all material respects comply with the terms of each of the same;
|
47.1.4 |
notify the Owners in writing of:
|
|
(a) |
any accident to the Vessel, immediately upon but in any case within 24 hours of the occurrence of the same which is or is likely to become a
Major Casualty;
|
|
(b) |
any occurrence resulting in the Vessel becoming or being likely to become a Total Loss, immediately upon but in any case within 24 hours of the
occurrence;
|
|
(c) |
any requirement or recommendation made by any insurer or Classification Society, or by any competent authority, which is not complied with
within any time limit imposed by such insurer, Classification Society or authority;
|
|
(d) |
any arrest of the Vessel or the exercise or purported exercise of any lien on the Vessel or any Requisition of the Vessel , immediately upon but
in any case within 24 hours of the occurrence;
|
|
(e) |
any damage to or alteration to the Vessel in excess of the amount of US$300,000 (Dollars Three Hundred Thousand); and
|
|
(f) |
any breach by any party of any Project Document;
|
47.1.5 |
notify the Owners 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;
|
47.1.6 |
following an inspection of the Vessel by the Owners or its representatives pursuant to the terms and conditions of this Charter, comply with any reasonable
requests from the Owners for repairs or works to the Vessel if required to ensure that the Vessel is maintained in the class and condition required by this Charter and if the Charterers dispute the need for any such repairs or works the
matter shall be referred to the Classification Society whose decision on such matter shall be binding on the Owners and the Charterers;
|
47.1.7 |
comply with:
|
|
(a) |
any existing law or regulation of any governmental of official authority or body which is applicable to the Charterers;
|
|
(b) |
the constitutional documents of the Charterers;
|
|
(c) |
any agreement, contract or other undertaking to which the Charterers are a party or which is binding on the Charterers or any of their assets;
|
|
(d) |
and ensure that their Affiliates and their officers, directors, employees, consultants, agents and/or intermediaries comply with all applicable
Business Ethics Laws.
|
47.1.8 |
shall not, and shall not permit or authorise any other person to, directly utilise or employ the Vessel or to use, lend, make payments of, contribute or
otherwise make available, all or any part of the proceeds of any transaction(s) contemplated by the Transaction Documents to fund any trade, business or other activities:
|
|
(a) |
involving or for the benefit of any Restricted Party; and
|
|
(b) |
in any other manner that would reasonably be expected to result in any Obligor, the Owners, any Manager or any Finance Party (if applicable)
being in breach of any Sanctions or become a Restricted Party.
|
47.1.9 |
promptly notify the Owners of:
|
|
(a) |
any Environmental Claim; and
|
|
(b) |
details of any material non-compliance by it with any applicable Environmental Law or applicable Environmental Approvals or any suspension,
revocation or modification of any Environmental Approvals and shall set out the action it intends to take with respect to those matters;
|
47.1.10 |
throughout the Security Period, no Change of Control in respect of the Security Parties;
|
47.1.11 |
assume (and shall enter into such documents and contracts to assume) such obligations, and grant rights, to the Owners which shall corresponding to such
|
47.1.12 |
all the Earnings are at all times paid to the Charterer Account and, without prejudice to the foregoing, there shall be paid into the Charterer Account, on or
before the Delivery Date, the Minimum Balance and the Charterers shall, from the date of such payment until the last day of the Security Period, ensure that the balance standing to the credit of the Charterer Account shall not fall below
an amount equal to the Minimum Balance.
|
47.2 |
The Charterers undertake and agree that throughout the Security Period it shall not, without prior written approval by the Owners:-
|
|
(a) |
cancel or terminate the Ship Management Agreement;
|
|
(b) |
amend or vary the terms of, or permit or suffer any amendment or variation of the terms of the Ship Management Agreement without providing a
copy of the amended Ship Management Agreement to the Owners provided that if the only amendment to the Ship Management Agreement is in respect of the management fee thereunder, the Charterers shall only be required to notify the Owners in
writing promptly after such amendment;
|
|
(c) |
sub-let the Vessel on demise charter for any period;
|
|
(d) |
incur or allow to remain outstanding any guarantee in respect of any obligation of any person except any guarantee entered into with the prior
written consent of the Owners or in accordance with the Security Documents or for the purpose of securing the release of the Vessel from any potential or actual arrest or detention or in the ordinary course of business if the provision of
such guarantee shall not cause adverse impact on the Charterers’ ability to perform their obligations under this Charter, provided always that a copy of any guarantee issued under this clause 47.2 shall be provided to the Owners within 14
days of its issuance;
|
|
(e) |
create or permit to subsist any Security Interest over the Vessel or any of its assets;
|
|
(f) |
engage in any business other than the disponent ownership, management, control and operation of the Vessel without the prior written consent of
the Owners.
|
|
(g) |
make any substantial change to the general nature of its business from that carried on by it at the date of this Charter;
|
|
(h) |
enter into any transactions other than on arms’ length commercial terms.
|
|
(i) |
incur any borrowings from any person or otherwise create, incur, assume, suffer to exist or in any manner become or remain liable for any other
Financial Indebtedness except in the ordinary course of business as disponent owner of the vessel and/or charterer;
|
|
(j) |
incur any indebtedness other than that incurred (i) to the Owners under this
|
|
(k) |
enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease,
transfer or otherwise dispose of any of its assets (save and except as provided under the terms of this Charter and the Security Documents);
|
|
(l) |
declare or pay any dividend or make any other capital or income distribution to its shareholders during the Security Period if a Termination
Event has occurred and is continuing;
|
|
(m) |
enter into any amalgamation, demerger, merger or corporate reconstruction (other than any amalgamation, demerger, merger or corporate
reconstruction which would not have a Material Adverse Effect); or
|
|
(n) |
permit any change in the composition of its board of directors from that existing on the date of this Charter.
|
47.3 |
The Charterers undertake and agree that, throughout the Security Period, the ratio (expressed as a percentage) of an amount equal to the aggregate of the then
applicable Owners’ Costs and the Excess Amount (if any) to the Market Value as determined by the latest valuation reports provided in accordance with Clause 47.1.1(a) (the “
LTV Ratio
”) shall equal to eighty per cent. (80%). If the LTV Ratio, at any relevant time, is above eighty per cent. (80%) (the “
LTV Breach
”), the Charterers shall, on the Payment Date immediately succeeding the date of the LTV Breach, prepay an amount of the shortfall such that the LTV Ratio will be equal to eighty per
cent. (80%) subsequent to such prepayment. The parties hereby expressly acknowledge that:
|
|
(a) |
the Owners’ Costs;
|
|
(b) |
the Daily Charter Rate;
|
|
(c) |
if such prepayment is made prior to the 3
rd
Anniversary, the Early Termination Amount relating to each Early Termination Date; and
|
|
(d) |
the Repurchase Price relating to each Purchase Option Date (other than the Repurchase Price relating to the Charter Period Expiry Date),
|
47.4 |
The Charterers hereby expressly acknowledge that each of:
|
|
(a) |
the Owners’ Costs Schedule in its form and content as attached hereto is based on the assumption that the Delivery Date is 15 December 2018; and
|
|
(b) |
the Adjustment Schedule in its form and content as attached hereto is based on the assumptions that:
|
|
(i) |
the Delivery Date is 15 December 2018;
|
|
(ii) |
a prepayment made in accordance with Clause 47.3 is:
|
|
A. |
made on the 24
th
Payment Date; and
|
|
B. |
in the amount of USD2,000,000 (United States Dollars Two Million); and
|
|
(iii) |
the 3
rd
Anniversary falls on the 36
th
Payment Date and the 4th Anniversary falls on the 48
th
Payment Date,
|
47.5 |
Any amended Adjustment Schedule or Owners’ Cost Schedule prepared and delivered to the Charterers pursuant to Clauses 47.3 or 47.4 respectively shall, from the
date the same is delivered to the Charterers, be deemed to be incorporated into this Charter and, for the purposes of this Charter, shall thereafter:
|
|
(a) |
constitute the current Adjustment Schedule or Owners’ Costs Schedule, as applicable; and
|
|
(b) |
be conclusive evidence of the Owners’ Costs and, in the case of an amended Adjustment Schedule delivered by the Owners in accordance with Clause
47.4, the Daily Charter Rate, the Repurchase Price in relation to each Purchase Option Date and, if applicable, the Early Termination Price in relation to each Early Termination Date, each applicable under this Charter.
|
47.6 |
If, as a result of a prepayment made in accordance with Clause 47.3, the Owners’ Costs falls below US$17,500,000 (United States Dollars Seventeen Million and
Five Hundred Thousand) (the “
Balloon
”), an amount equal to the difference between the Balloon and the Owners’ Costs following such
prepayment (the “
Excess Amount
”) shall be retained by the Owners and
|
|
(a) |
no Termination Event has occurred and is continuing, and
|
|
(b) |
the Charterers have not exercised their option to purchase the Vessel in accordance with Clause 39.2,
|
47.7 |
Any Excess Amount accrued in accordance with Clause 47.6 may be refunded to the Charterers if the Market Value as determined by the valuation reports provided
immediately following the LTV Breach in accordance with Clause 47.1.1(a) is lower than eighty per cent. (80%), provided that after such refund, the LTV Ratio is equal to eighty per cent. (80%).
|
47.8 |
In the event that there any Excess Amount accrued in accordance with Clause 47.6 on the Purchase Option Date, the Termination Date or the Total Loss Payment
Date (as applicable), the Owners shall set-off the applicable Purchase Option Sum or the applicable Termination Sum payable by the Charterers to the Owners against an amount equal to such Excess Amount.
|
47.9 |
The Charterers agree and acknowledge that any Excess Amount accrued in accordance with Clause 47.6 shall bear no interest.
|
48. |
INSURANCES, TOTAL LOSS
|
48.1 |
The Charterers shall bear all risks whatsoever and howsoever arising from whether of use, navigation, operation, possession and/or maintenance of the Vessel
throughout the duration of the Charter.
|
48.2 |
Insurances
|
|
(a) |
to insure and keep the Vessel insured free of cost and expense to the Owners and in the joint names of the Owners and the Charterers or
otherwise as the Owners and the Charterers may agree pursuant to Box 29 and Box 31 (if any) of Part I and Clause 13 of Part II of this Charter and this Clause 48:
|
|
(i) |
against fire and usual marine risks (including hull and machinery, hull interest, freight interest, disbursement, demurrage and/or increased value, other Total
Loss interest and excess risks);
|
|
(ii) |
against war risks (including terrorism cover, on hull and machinery basis and on war protection and indemnity risks, terrorism, piracy and strike risks);
|
|
(iii) |
against full protection and indemnity risks, including, amongst other things, (a) FD&D cover, and (b) in the case of oil pollution liability risks,
|
|
(iv) |
against loss of hire or earning (only for piracy and war risks);
|
|
(v) |
against such other risks of whatsoever nature and howsoever arising as may be required by the Owners which are customary to transactions of this nature;
|
|
(vi) |
in Dollars;
|
|
(vii) |
on terms consistent with prevailing international market practice from time to time be approved by the Owners;
|
|
(viii) |
in case of the fire and usual marine risks in (i) above and war risks in (ii) above, in an amount no less than 120% of the then applicable Early Termination
Amount (if the relevant time falls prior to the 3rd Anniversary) or the Repurchase Price (if the relevant time falls on or after the 3
rd
Anniversary);
|
|
(ix) |
in case of loss of earnings risks (only for piracy and war risks) in such amounts as from time to time required by the Owners;
|
|
(x) |
in the case of pollution liability risk for protection and indemnity 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;
|
|
(xi) |
with international reputable companies and/or underwriters or, in the case of protection and indemnity risks in such protection and indemnity association
approved by the Owners, such approval not to be unreasonably withheld or delayed. An insurance company with a Standard & Poor’s rating of BBB+ or above and a protection and indemnity association which is a member of the International
Group of Protection and Indemnity Association shall be deemed approved for the purpose of this clause.
|
|
(b) |
if and when so required by the Mortgagee, the Charterers shall pay the Mortgagee direct or reimburse the Owners (in case the Owners pay) the
cost (as conclusively certified by the Mortgagee) of (A) a mortgagee’s interest insurance on the Vessel in an amount not less than the Minimum Insured Value 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 the Minimum Insured Value 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; and if and when so required by the Owners, the Charterers shall pay the Owners the cost (as conclusively certified by the Owners) of innocent shipowner’s Interest Insurance on the Vessel in an
amount not less than the Minimum Insured Value or such lesser amount as may be approved by the Owners; and (B) an
|
|
(c) |
to effect the Insurances aforesaid in Dollars and through the Approved Insurers;
|
|
(d) |
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 Owners 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.
|
|
(e) |
to punctually to pay all premiums, calls, contributions or other sums payable in respect of all such Insurances and to produce copies of all
relevant receipts or other evidence of payment;
|
|
(f) |
at least seven (7) days before the relevant policies, contracts or entries expire,
|
|
(i) |
to notify the Owners of the names of the brokers proposed to be employed by the Charterers for the purposes of the renewal of such Insurances and of the amounts
in which such Insurances are proposed to be renewed and the risks to be covered and, subject to compliance with any requirements of the Owners pursuant to this Clause 48,
|
|
(ii) |
to procure that that the Approved Insurers will at least fourteen (14) days before such expiry, and the approved war risks and protection and indemnity
associations will at least seven (7) days before such expiry confirm in writing to the Owners that they have been instructed to renew the relevant Insurances and such renewals are in the process of being effected in accordance with the
instructions so given and to provide the Owners with details of the instructions as the Owners may require (except for the pricing information);
|
|
(g) |
to arrange for the execution of such guarantees or indemnities as may from time to time be required by any protection and indemnity or war risks
association;
|
|
(h) |
to deposit with the Approved Insurers (or procure the deposit of) all slips, cover notes, policies, certificates of entry or other instruments
of insurance from time to time issued in connection with the Insurances as are effected through the Approved Insurers;
|
|
(i) |
to procure that the interest of the Owners shall be endorsed and, where the Insurances have been assigned to the Owners, by means of a notice of
|
|
(j) |
to procure that any protection and indemnity and/or war risks associations (if applicable) in which the Vessel is for the time being entered
shall endorse the relevant Loss Payable Clause (taking into account the associations’ standard wording) on the relevant certificate of entry or policy and shall furnish the Owners with a certified true copy of such certificate of entry
and a letter or letters of undertaking in such form as may from time to time be reasonably required by the Owners in accordance with the associations’ standard form and wording;
|
|
(k) |
if so requested by the Owners, but at the cost of the Charterers, to furnish the Owners from time to time with a detailed report signed by an
independent firm of marine insurance brokers or an independent firm of international reputable insurance consultant appointed by the Charterers dealing with the Insurances maintained on the Vessel and stating the opinion of such firm as
to the adequacy thereof;
|
|
(l) |
to do all things necessary and provide all documents, evidence and information to enable the Owners to collect or recover any moneys which shall
at any time become due to them in respect of the Insurances;
|
|
(m) |
not to employ the Vessel or suffer the Vessel to be employed otherwise than in conformity with the terms of the instruments of insurance
aforesaid (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;
|
|
(n) |
to apply all sums receivable under the Insurances which are paid to the Charterers in accordance with the Loss Payable Clauses in repairing all
damage and/or in discharging the liability in respect whereof the insurance moneys shall have been received;
|
|
(o) |
to ensure that if the Vessel shall at any time enter the waters under the jurisdiction of the United States of America and/or the Exclusive
Economic Zone (as defined in the Oil Pollution Act):
|
|
(i) |
the certificate of entry for the Vessel issued by the protection and indemnity association with which it is entered is endorsed with the U.S. Oil Pollution
Clause 20/2/91 (as amended or replaced from time to time) and to procure for the Owners sufficient documentary evidence that the Charterers has provided all declarations and satisfied all other requirements of the association and that the
U.S. Trading Exclusion Clause (as defined in the rules and policies of such protection and indemnity association) has been deleted from the cover;
|
|
(ii) |
make all such quarterly or other voyage declarations as may from time to time be required by the protection and indemnity risks association in order to maintain
cover for trading to the United States of America and Exclusive Economic Zone and promptly deliver to the Owners
|
|
(p) |
to produce to the Owners upon demand copies (certified by the relevant brokers as being true copies) of all policies, certificates of insurance
or entry, cover notes and binders relating to the Insurances and to furnish the Owners with any other evidence of the existence of the Insurances as the Mortgagee may request. The Charterers shall procure that the Approved Insurers give
to the Owners such information as to the Insurances taken out or being or to be taken out in compliance with the Charterers’ obligations under the foregoing provisions or as to any other matter which may be relevant to the Insurances as
the Owners may request (except for the pricing information of the Insurances);
|
|
(q) |
the Charterers 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, unless otherwise specifically permitted under the insurance policies;
|
|
(r) |
the Charterers shall not make any alteration to any of the insurances referred to in this Clause without prior written approval by the Owners
(which shall not be unreasonably delayed or withheld) 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;
|
|
(s) |
should any change be permitted or occur without the consent of the Owners, then, without prejudice to the aforesaid obligation of the Charterers
or to the rights of the Owners on a Termination Event or to any other provision in this Charter, the Charterers shall forthwith give written notice to the Owners and thereupon the foregoing provisions of this clause where relevant shall
apply thereto;
|
|
(t) |
the Charterers not to settle, compromise or abandon any claim under any Insurance for Total Loss or for a Major Casualty;
|
|
(u) |
In the event that any act or negligence of the Charterers (and/or the Manager or any sub-charterer in any level) shall vitiate, impair or void
any of the Insurances herein provided, the Charterers shall take all rectification measures and pay to the Owners all losses and indemnify the Owners against all claims and demands which would otherwise have been covered by such
Insurances,
|
48.3 |
Total Loss For the purposes of this Charter, Total Loss shall be deemed to have occurred on the Total Loss Date.
|
|
(a) |
the Owners’ obligation to charter the Vessel shall be immediately be terminated;
|
|
(b) |
the Charterers shall within sixty (60) days from the Total Loss Date and no later than the actual date when the insurance proceeds are received
from the relevant insurer as a result of such Total Loss, whichever occurs earlier (the “
Total Loss Payment Date
”), pay to the Owners
the Termination Sum; and
|
|
(c) |
the Charterers shall continue to pay the Charter-hire until the Total Loss Payment Date.
|
|
(i) |
any actual costs and expenses incurred by the Owners to apply for and procure the insurance proceeds together with accrued thereon pursuant to
42.3 hereof from the date shall be paid and/or distributed to the Owners, unless having indemnified to the Owners by the Charterers before the distribution;
|
|
(ii) |
the amount equal to the outstanding Termination Sum together with interest accrued thereon pursuant to 42.3 hereof from the due date shall be
paid/distributed to the Owners, unless having paid to the Owners by the Charterers before the distribution; and
|
|
(iii) |
lastly, the remaining insurance proceeds after deducting and distributing the sums referred to in (i) and (ii) above to the Owners, if any,
shall be paid/distributed to the Charterers without interest.
|
49. |
TERMINATION EVENTS
|
49.1 |
Each of the following events shall be a “
Termination Event
”
for the purposes of this Charter:
|
(a) |
a Security Party fails to pay any amount due from it under any Transaction Document to which it is a party unless its failure to pay is caused by an
administrative or technical error and payment is made within five (5) Business Days of its due date; or
|
(b) |
any Security Party fails to observe or perform any of its obligations (other than (a) above and (z) below) under this Charter and/or any of the Transaction
Documents to which it is a party provided that no Termination Event shall occur if the failure or breach can be remedied and is remedied within twenty (20) days of the Owners giving notice to the relevant Security Party;
|
(c) |
(i) the Charterers fail at any time to effect or maintain any Insurances, or any insurer shall avoid or cancel any such Insurances (other than by reason of any
act or omission of the Owners), or the Charterers commit any breach of or make any misrepresentation in respect of any such Insurances, or (ii) any of the said Insurances cease for any reason whatsoever to be in full force and effect, and
in each case, such failure is not remedied within fourteen (14) days; or
|
(d) |
any representation or warranty of any Security Party in connection with this Charter or any Transaction Document or in any document or certificate furnished to
the Owners in connection herewith or therewith is or was untrue, inaccurate or misleading in any material respect, when made or deemed made; or
|
(e) |
the Charterers fail to observe or perform any of their obligations under this Charter and/or any Transaction Document, and such failure to observe or perform
any such obligation is either not remediable or remediable but not fully remedied within twenty (20) days after such breach; or
|
(f) |
any Security Interest created by a Security Document have been or becomes invalid or unenforceable or such Security Interest ranked after, or loses its priority
to, any other Security Interest other than any Security Interest under the Security Documents; or
|
(g) |
it becomes impossible or unlawful for any Security Party to perform or fulfil any of its obligations under this Charter or any other Transaction Document to
which it is party; or
|
(h) |
the occurrence of any event or circumstances which, pursuant to mandatory law, entitles or requires the termination of any Transaction Document; or
|
(i) |
anything is done or omitted to be done by the Charterers or the Manager which
|
(j) |
any declared default arises in respect of any Financial Indebtedness entered into or assumed by the Charterers or a Guarantor; or
|
(k) |
any Security Party does or causes or permits to be done any act or thing evidencing an intention to repudiate this Charter or any Transaction Document; or
|
(l) |
there is a Change of Control; or
|
(m) |
any Security Party ceases to be a company resident in the jurisdiction of its incorporation and/or duly registered in good-standing; or
|
(n) |
any Security Party ceases, or threatens to cease, to carry on all or a substantial part of its business or disposes or threatens to dispose (other than for full
arm’s length consideration) of the whole or a material part of its property, assets or undertaking; or
|
(o) |
an encumbrancer takes possession of, or distress or execution is levied upon, the whole, or a material part of the property, assets or undertaking of the
Charterers and the Charterers fail to release the same within fifteen (15) days (or a longer period as agreed between the Owners and the Charterers) from the date of the possession, distress or execution; or
|
(p) |
a petition is 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 such Security Party’s incorporation; or
|
(q) |
any Security Party stops payment generally or cease to carry on or suspends payment of, or is unable to or admits inability to pay, all or a substantial part of
its debts as they fall due or makes any special arrangement or composition with its creditors generally or shall otherwise become or be adjudicated insolvent; or
|
(r) |
any Security Party convenes or gives notice to convene a meeting of all or any class or group of its creditors with a view to proposing or making, or proposes
or makes, any arrangement or composition with or assignment for the benefit of all or any class or group of its creditors or declares, or applies to any court or other tribunal for, a moratorium or suspension of payments with respect to
all or a substantial part of its debts or liabilities
|
(s) |
any formal declaration of bankruptcy or any formal statement to the effect that any Security Party is insolvent is made by such Security Party or, in any
proceedings, by a lawyer or auditors who are acting on behalf of the Charterers as having been duly authorised by such Security Party to do so; or
|
(t) |
any security Party applies to any court or other tribunal for, a moratorium or suspension of payments with respect to all or a substantial part of its debts or
liabilities; or
|
(u) |
a liquidator, receiver, administrative receiver or similar officer is appointed over the whole or any material part of the assets, rights or revenues of any
Security Party or, if the whole or a substantial part of the assets of any Security Party shall be seized or sequestrated by any governmental or other public authority or, if any Security Party shall be restrained from using the whole or
a substantial part of its assets in its business; or
|
(v) |
the Vessel is arrested or detained and is not released within thirty (30) days after such arrest or detention (or such longer period as the Owners shall agree
in the light of all the circumstances); or
|
(w) |
any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Charterers are not discharged within fifteen (15) days;
or
|
(x) |
any consent, authorisation, licence or approval necessary for this Charter or any Security Document to be or remain the valid and legally binding obligations of
the Charterers, or to enable the Security Party to perform its obligations hereunder or thereunder, shall be materially adversely modified or is not granted or is revoked, suspended, withdrawn or terminated or expires and is not renewed;
or
|
(y) |
any event or series of events occurs which, in the reasonable opinion of the Owners, may have a Material Adverse Effect on the ability of any Security Party to
comply with its obligations under this Charter or any Security Document to which they are respectively a party; or
|
(z) |
any Security Party is involved in:
|
|
(i) |
any incident which gives rise to any Environmental Claim and such incident will result in a Material Adverse Effect; and
|
|
(ii) |
any Environmental Claim which, if adversely determined, would reasonably be expected to result in a Material Adverse Effect (except for any
Environment Claim which is frivolous or vexatious and/or is defended and/or challenged in good faith), which in the opinion of the Owners are capable of remedy and is not remedied within fourteen (14) days from the Owners’ giving written
notice to such Security Party; or
|
(aa) |
any Security Party, any party to the Transaction Documents (other than the Owners), repudiates any of the Transaction Documents does or causes or permits to be
done any act of thing evidencing an intention to repudiate any Transaction Document; or
|
(bb) |
any money assigned pursuant to any of the Security Documents is paid other than as provided therein; or
|
(cc) |
any Project Document is terminated, cancelled, repudiated, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect
provided that
no Termination Event will occur
under this paragraph (cc) if, within sixty (60) days of the termination, cancellation, repudiation, suspension, rescission or revocation of the Sub-Charter:
|
|
(i) |
such Sub-Charter is, replaced by another time charter having similar rate of hire and duration as the Sub-Charter and on terms acceptable to the
Owners (acting timely and reasonably) entered into between the Charterers (as disponent owner) and a sub-charterer acceptable to the Owners; and
|
|
(ii) |
the rights of the Charterers’ in such replacement time charter are assigned to the Owners; or
|
(dd) |
any Security Document is terminated, cancelled, repudiated, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any
reason whatsoever; or
|
(ee) |
the occurrence of any other event or circumstances which, pursuant to the terms hereof or at law, requires the Owners to terminate this Charter; or
|
(ff) |
the occurrence of a Collateral Charter Termination Event.
|
49.2 |
Upon the occurrence of a Termination Event, the Owners shall be entitled to (but is not bound and without prejudice to the Charterers’ obligations) by written
notice to the Charterers terminate this Charter and the chartering of the Vessel under this Charter forthwith and recover any and all amounts due and payable hereunder and/or resulting from such termination and to exercise its rights in
the manner as set out in Clause 50 (
Owners’ Rights on Termination
).
|
49.3 |
The Owners shall not be under any liability whatsoever to the Charterers for loss or damage whatsoever occasioned by the Charterers or any Security Party for
the termination of this Charter and the Charterers shall indemnify the Owners on demand for any and all liabilities, losses, costs and expenses incurred by the Owners pursuant to this Clause or otherwise resulting from the occurrence of a
Termination Event.
|
50. |
OWNERS’ RIGHTS ON TERMINATION
|
50.1 |
At any time after a Termination Event shall have occurred, the Owners may, by notice in writing to the Charterers, immediately, or on such other date as the
Owners shall specify, terminate this Charter and whereby:
|
|
(a) |
the Charterers shall within fifteen (15) days (in the case of a Termination Event under Clause 50.1(a)) or forty-five (45) days (in the case of
all Termination Events other than a Termination Event under Clause 50.1(a)) of the Termination Date pay to the Owners the Termination Sum; and
|
|
(b) |
the Owners’ obligation to charter the Vessel to the Charterers is terminated on the Termination Date specified by the Owners in the notice of
termination and the following provisions shall apply:
|
|
(i) |
the Vessel shall no longer be in the possession of the Charterers and the Owners shall be entitled to retake possession of the Vessel;
|
|
(ii) |
the Charterers shall procure that upon notice to the Master and Crew that the Owners have retaken possession of the Vessel, the Master and Crew shall obey the
lawful orders of the Owners as regards the navigation and management of the Vessel and shall no longer obey the Charterers; and
|
|
(iii) |
the Charterers shall redeliver the Vessel to the Owners pursuant to Clause 51 (
Redelivery
) hereof.
|
50.2 |
Any amount due to the Owners under Clauses 50 and 51 (
Redelivery
)
shall bear interest pursuant to Clause 42.3 (before and after any relevant judgment or any winding-up of the Charterers) from the relevant Termination Date to the date of the Owners’ actual receipt thereof.
|
50.3 |
Notwithstanding the termination of the chartering of the Vessel pursuant to Clause 51 (
Redelivery
), the Charterers shall irrevocably and unconditionally continue to comply with its obligations under this Charter as provided for herein until the Vessel is redelivered to the Owners in
accordance with Clause 51 (
Redelivery
).
|
50.4 |
Subject to Clause 50.5, the Owners agree to transfer the title in the Vessel to the Charterers after the Owners’ receipt of full payment of the Termination Sum.
|
50.5 |
In the event that the Charterers fail to make punctual full payment within fifteen (15) days (in the case of a Termination Event under Clause 50.1(a)) or
forty-five (45) days (in the case of all Termination Events other than a Termination Event under Clause 50.1(a)) of the Termination Date in accordance with this Clause 50 :
|
|
(a) |
the Owners may (but is not obligated to) sell the Vessel at any time 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;
|
|
(b) |
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 Owners in respect of the sale of the Vessel (the “
Net Sale Proceeds
”);
|
|
(c) |
an amount equal to the aggregate of the Termination Sum and all other amounts payable under the Transaction Documents together with interest as
stipulated herein shall be deducted from the Net Sale Proceeds;
|
|
(d) |
if the Net Sale Proceeds are insufficient to satisfy all amounts due and payable from the Charterers to the Owners hereunder, the Charterers
shall pay the outstanding balance to the Owners; and
|
|
(e) |
any remaining balance shall be paid to the Charterers.
|
51. |
REDELIVERY
|
51.1 |
Unless the Charterers exercise their option to purchase the Vessel from the Owners pursuant to Clause 39.2, upon expiration of the Charter Period, the Owners
shall have the right to dispose of the Vessel, and the Vessel shall be redelivered to the Owners on the following terms:
|
|
(a) |
at such safe and accessible berth as specified by the Owners and, if applicable, within such ranges as specified by Charterers in accordance
with Clause 51.2;
|
|
(b) |
with her class maintained without any conditions or recommendation; and
|
|
(c) |
free of average damage affecting the Vessel’s class; and
|
|
(d) |
with all the Vessel’s classification, trading, national and international certificates that the Vessel had when she was delivered under this
Charter and the log book and whatsoever necessary relating to the operation of the Vessel, valid and un-extended without conditions or recommendation falling due for a minimum of six (6) months from the time of redelivery; and
|
|
(e) |
subject to Clause 10 (
Maintenance and Operation
)
in the same or as good structure, state, condition and class as that in which she was deemed delivered under Clause 35 (
Delivery of the
Vessel
), fair wear and tear not affecting class excepted; and
|
|
(f) |
subject to Clause 10 (
Maintenance and Operation
)
with all such spare parts and other equipment she had at the time of delivery under this Charter together with all other additions, amendments, equipment or alterations made to the Vessel during the Charter Period without any cost to the
Owners; and
|
|
(g) |
with copies of the log books and all of the classification records and certificate(s) and class’s survey report(s) as well as plans, drawings
and manuals (excluding ISM/ISPS manuals) which are on board the Vessel and relate to the Charter Period.
|
51.2 |
The Charterers shall give the Owners not less than thirty (30) days’ notices of the expected geographical range and port of redelivery.
|
51.3 |
The Charterers shall pay or reimburse to the Owners all 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 this Clause 51 together with interest thereon pursuant to Clause 42.3 hereof from the date on which the
relevant Loss was suffered by the Owners until the date of payment or reimbursement thereof (both before and after any relevant judgment or winding up of the Charterers).
|
51.4 |
The Owners shall reimburse the Charterers, a sum equal to the cost of the remaining bunkers and lubricating oil in the Vessel at the original purchase price as
evidenced by copies of invoices certified by a director of the Charterers.
|
52. |
COMMUNICATIONS
|
52.1 |
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 appearing below (or at such other address or facsimile number as such party may hereafter specify for such purposes to the other by notice in writing):
|
|
Address: |
1/F., Far East Consortium Building, 121 Des Voeux Road Central, Hong Kong
c/o Bank of Communications Financial Leasing Co., Ltd 28/F., 333 Lujiazui Ring Road, Pudong New Area, Shanghai 200120, PRC |
|
Fax: |
+86 -21-6278 8317
|
|
Email: |
fang_xz@bankcomm.com/xux_31@bankcomm.com
|
|
Attention: |
Mr. Fang Xiuzhi/Mr. Xu Xin
|
|
Address: |
1, Vass Sofias 15124, Maroussi Greece C/O Central Mare
|
|
Facsimile No.: |
0030 210 6141272
|
|
Email: |
atsirikos@topships,org
|
|
Attn: |
Alexandros Tsirikos
|
|
Telephone : |
0030 210 8128180
|
52.2 |
All communications and documents delivered pursuant to or otherwise relating to this Charter shall either be in English or accompanied by a certified English
translation.
|
52.3 |
Any communication to be made between the Parties under or in connection with this Charter may be made by electronic mail or other electronic means provided that
between the Parties:
|
|
(a) |
it is agreed that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
|
(b) |
they have notified each other in writing of their electronic mail address and/or any other information required to enable the sending and
receipt of information by that means; and
|
|
(c) |
they have notified each other of any change to their address or any other such information supplied by them.
|
52.4 |
Any electronic communication made between the Parties will be effective only when actually received in readable form and in the case of any electronic
communication made to the Owners, only if it is addressed in such a manner as the Owners shall specify for this purpose.
|
53. |
ASSIGNMENT AND SET-OFF
|
53.1 |
This Charter shall be binding upon and enure for the benefit of the Owners and the Charterers and their respective successors and permitted assigns.
|
53.2 |
The Charterers 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
Owners.
|
53.3 |
In addition to the right of the Owners to assign under Clause 44 (
Owners’ Right to Mortgage
) and Clause 45 (
Owners’ Right to Sale
), the Owners may at any time assign or transfer any
or all of its rights, benefit and interests under this Charter to any person.
|
53.4 |
Without prejudice to any right of set-off, combination of accounts, lien or other rights to which the Owners are at any time entitled whether by operation of
law or contract or otherwise, the Owners may (but shall not be obliged to) set off against any obligation of the Charterers due and payable by it hereunder without prior notice any moneys held by the Owners for the account of the
Charterers at any office of the Owners anywhere and in any currency. The Owners may effect such currency exchanges as are appropriate to implement such set-off.
|
54. |
MISCELLANEOUS
|
54.1 |
The Owners represent, warrant, undertake and covenant that, throughout the duration of the Charter Period, they and their officers, directors, employees,
consultants, agents and/or intermediaries, or any person acting on their behalf, have complied with, and shall comply with, all applicable Business Ethics Laws in connection with this Charter.
|
54.2 |
Time shall be of the essence of this Charter but no failure or delay on the part of the Owners to exercise any power, right or remedy under any Transaction
Document shall operate as a waiver hereof or thereof, nor shall any single or partial exercise by the Owners of any power, right or remedy preclude any other or further exercise hereof or thereof or the exercise of any other power, right
or remedy.
|
54.3 |
Any amendment or waiver of any provision of this Charter or any other Transaction Documents shall only be effective if the Owners and the Charterers so agree in
writing. Any consent by the Owners under this Charter or any Transaction Document must be
|
54.4 |
The rights of one party hereof may be exercised as often as necessary, are cumulative and not exclusive of its rights under applicable laws or otherwise and may
be waived only in writing and specifically. Failure to exercise, or any delay in exercising, by one party hereof, any right or remedy hereof shall not operate as a waiver of any such right or remedy or constitute an election to affirm any
agreement hereof. No election to affirm any agreement on the part of the Owners shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise
of any other right or remedy.
|
54.5 |
If any provision of this Charter and any Transaction Document is prohibited or unenforceable in any jurisdiction such prohibition or unenforceability shall not
invalidate the remaining provisions hereof or affect the validity or enforceability of such provision in any other jurisdiction.
|
54.6 |
This Charter may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any party hereto may
execute this Charter by signing any such counterpart.
|
54.7 |
Unless expressly identified in this Charter, no third parties shall have the right to enforce or apply any term hereof and the Contracts (
Rights of Third Parties
) Act 1999 is expressly excluded.
|
54.8 |
Clauses 32 (
Definitions
) to 54 (
Miscellaneous
) (the “
Additional Clauses
”) form an,
integral and indispensable part of this Charter and shall be read together with Part I to Part IV of this Charter. In the event of any inconsistency in the terms set out in Part I and Part II of this Charter and the Additional Clauses
(i.e. Clauses 32 (
Definitions
) to 54 (
Miscellaneous
))
of this Charter, then the terms of the Additional Clauses shall prevail.
|
54.9 |
This Charter (composed of, (i) Part I, Part II, and in the case where both party agree to apply either of or all of the optional Part III and Part IV, of the
standard BIMCO BARECON 2001 with agreed and or logical amendments; (ii) the Additional Clauses; and, (iii) together with its attachments, appendices and schedules) contains the entire agreement and understanding between the parties and
supersedes any prior or inconsistent agreements, negotiations, term sheet, representations and promises, written or oral between the parties respecting the subject matter hereof.
|
Purchase Option Date
|
Repurchase Price(US$)
|
3
rd
Anniversary
|
19,130,000
|
1
st
Payment Date after 3
rd
Anniversary
|
19,063,333
|
2
nd
Payment Date after 3
rd
Anniversary
|
18,996,667
|
3
rd
Payment Date after 3
rd
Anniversary
|
18,930,000
|
4
th
Payment Date after 3
rd
Anniversary
|
18,863,333
|
5
th
Payment Date after 3
rd
Anniversary
|
18,796,667
|
6
th
Payment Date after 3
rd
Anniversary
|
18,730,000
|
7
th
Payment Date after 3
rd
Anniversary
|
18,663,333
|
8
th
Payment Date after 3
rd
Anniversary
|
18,596,667
|
9
th
Payment Date after 3
rd
Anniversary
|
18,530,000
|
10
th
Payment Date after 3
rd
Anniversary
|
18,463,333
|
11
th
Payment Date after 3
rd
Anniversary
|
18,396,667
|
4
th
Anniversary
|
18,330,000
|
1
st
Payment Date after 4
th
Anniversary
|
18,260,833
|
2
nd
Payment Date after 4
th
Anniversary
|
18,191,667
|
3
rd
Payment Date after 4
th
Anniversary
|
18,122,500
|
4
th
Payment Date after 4
th
Anniversary
|
18,053,333
|
5
th
Payment Date after 4
th
Anniversary
|
17,984,167
|
6
th
Payment Date after 4
th
Anniversary
|
17,915,000
|
7
th
Payment Date after 4
th
Anniversary
|
17,845,833
|
8
th
Payment Date after 4
th
Anniversary
|
17,776,667
|
9
th
Payment Date after 4
th
Anniversary
|
17,707,500
|
10
th
Payment Date after 4
th
Anniversary
|
17,638,333
|
11
th
Payment Date after 4
th
Anniversary
|
17,569,167
|
Charter Period Expiry Date
|
17,500,000
|
1. |
Security Parties
|
|
(a) |
certified copy of the constitutional documents of each Security Party including Certificate of Incorporation, and Memorandum and Articles of Association (or
equivalent in its place of incorporation);
|
|
(b) |
certified copy of resolutions of the board of directors of each Security Party, approving the execution of this Charter and the Security Documents to which it
is a party and authorizing a person or persons to execute the same under seal (where appropriate), and any other notices and documents required in connection therewith, and the specimen signature(s) of such person(s);
|
|
(c) |
original of the power of attorney of each person authorised to execute this Charter or any of the Security Documents on behalf of each Security Party; and
|
|
(d) |
a certificate of a duly authorised officer of each Security Party certifying that each copy document relating to it specified in this Schedule II is correct,
complete and in full force and effect and setting out the names of the directors, officers and shareholders of that Security Party and the proportion of shares held by each shareholder; and
|
2. |
Security
Documents
|
|
(a) |
the Charterer Account Security Deed;
|
|
(b) |
the General Assignment;
|
|
(c) |
the Share Charge;
|
|
(d) |
the Guarantees; and
|
|
(e) |
the Manager’s Undertaking.
|
3. |
Legal
Opinions
|
|
(a) |
an English legal opinion addressed to the Owners in such form and substance satisfactory to the Owners;
|
|
(b) |
a Marshall Islands legal opinion addressed to the Owners in such form and substance satisfactory to the Owners; and
|
|
(c) |
such other legal opinions as the Owners may require.
|
4. |
Other
documents and evidence
|
|
(a) |
evidence that the Ship Registry of the Flag State has issued a letter acknowledging this Charter (if available);
|
|
(b) |
all notices, consents, acknowledgements and other documents required to be received, given or exchanged pursuant to the Security Documents having been duly
executed in the agreed forms;
|
|
(c) |
receipt by the Owners of all the documents that shall be delivered to the Owners under the Share Charge and any other Security Documents;
|
|
(d) |
evidence that the Delivery Costs, the Advance Hire and the Charterers Arrangement Fee which is due and payable having been paid in accordance with the relevant
provisions of this Charter;
|
|
(e) |
evidence that full payment by the Charterers of all the legal fees with respect to the preparation, negotiation, execution and delivery of this Charter and the
Transaction Documents;
|
|
(f) |
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 48 of this Charter in respect of such Insurances have been complied with;
|
|
(g) |
if required by the Owners or the Mortgagee, a satisfactory opinion from an insurance consultants approved by the Owners on the insurances effected or to be
effected on the Vessel pursuant to the provisions of this Charter;
|
|
(h) |
evidence that the Vessel is classified and maintained in the highest class (free of outstanding recommendations or conditions of class) with the Classification
Society;
|
|
(i) |
such evidence as the Owners and/or the Mortgagee may require of the Charterers’ compliance with the ISM Code, the ISPS Code and MARPOL and all other
international code, convention, regulation applicable to the Vessel;
|
|
(j) |
the Vessel’s current Tonnage Certificate and International Load Line Certificate;
|
|
(k) |
the Vessel’s current Cargo Ship Safety Construction, Safety Equipment and Safety Radio Certificates;
|
|
(l) |
the Vessel’s current Minimum Safe Manning Document;
|
|
(m) |
the Vessel’s current Safety Management Certificate (SMC) under the ISM Code;
|
|
(n) |
the Manager’s current Document of Compliance (DOC) under the ISM Code;
|
|
(o) |
the Vessel’s current International Ship Security Certificate (ISSC);
|
|
(p) |
the Vessel’s current International Air Pollution Prevention Certificate (IAPPC) in respect of the Vessel, International Oil Pollution Prevention Certificate
(IOPP Certificate) and International Sewage Pollution Prevention Certificate (ISPP Certificate);
|
|
(q) |
a certified true copy of each Project Document and evidence that the Vessel has been delivered to the Sub-Charterer under the Sub-Charter; and
|
|
(r) |
an amount of not less than the Minimum Balance has been paid into the Charterer Account.
|
(a) |
that in the event of actual or constructive or compromised or arranged total loss of the Vessel the proceeds of insurance shall be paid first to the Owner;
|
(b) |
that all other losses not exceeding US$300,000 (United States Dollars Three Hundred Thousand) shall be paid to the Charterer or its order and if the
Underwriters or Insurers shall have been so notified by the Owner, then such losses shall be paid to the Owner; and
|
(c) |
that all other losses exceeding US$300,000 (United States Dollars Three Hundred Thousand) shall be paid to the Owner unless the Owner consents in writing to
such payment being made directly to the repairers on account of repairs in the course of being effected.
|
for and on behalf of Owner
[
●
]
|
for and on behalf of Charterer
[
●
]
|
||
Name:
Title:
|
Name:
Title:
|
Date
|
Owners’ Costs (US$)
|
Fixed Hire (US$)
|
Delivery Date
|
21,655,000
|
|
15 January 2019
|
21,595,367
|
59,633
|
15 February 2019
|
21,535,396
|
59,971
|
15 March 2019
|
21,480,922
|
54,474
|
15 April 2019
|
21,420,304
|
60,618
|
15 May 2019
|
21,361,310
|
58,995
|
15 June 2019
|
21,300,015
|
61,295
|
15 July 2019
|
21,240,362
|
59,653
|
15 August 2019
|
21,178,383
|
61,979
|
15 September 2019
|
21,116,054
|
62,329
|
15 October 2019
|
21,055,394
|
60,660
|
15 November 2019
|
20,992,369
|
63,025
|
15 December 2019
|
20,931,032
|
61,337
|
15 January 2020
|
20,867,303
|
63,729
|
15 February 2020
|
20,803,214
|
64,089
|
15 March 2020
|
20,742,921
|
60,293
|
15 April 2020
|
20,678,128
|
64,793
|
15 May 2020
|
20,615,071
|
63,057
|
15 June 2020
|
20,549,555
|
65,516
|
15 July 2020
|
20,485,794
|
63,761
|
15 August 2020
|
20,419,547
|
66,247
|
15 September 2020
|
20,352,925
|
66,622
|
15 October 2020
|
20,288,088
|
64,837
|
15 November 2020
|
20,220,722
|
67,365
|
15 December 2020
|
20,155,161
|
65,561
|
15 January 2021
|
20,087,044
|
68,117
|
15 February 2021
|
20,018,542
|
68,503
|
15 March 2021
|
19,956,318
|
62,223
|
15 April 2021
|
19,887,076
|
69,242
|
15 May 2021
|
19,819,689
|
67,387
|
15 June 2021
|
19,749,674
|
70,015
|
15 July 2021
|
19,681,534
|
68,140
|
15 August 2021
|
19,610,738
|
70,796
|
15 September 2021
|
19,539,541
|
71,197
|
15 October 2021
|
19,470,251
|
69,290
|
15 November 2021
|
19,398,260
|
71,991
|
15 December 2021
|
19,328,197
|
70,063
|
15 January 2022
|
19,255,402
|
72,795
|
15 February 2022
|
19,182,195
|
73,207
|
15 March 2022
|
19,115,699
|
66,496
|
15 April 2022
|
19,041,702
|
73,997
|
Date
|
Owners’ Costs (US$)
|
Fixed Hire (US$)
|
15 May 2022
|
18,969,687
|
72,015
|
15 June 2022
|
18,894,864
|
74,823
|
15 July 2022
|
18,822,045
|
72,819
|
15 August 2022
|
18,746,387
|
75,658
|
15 September 2022
|
18,670,301
|
76,086
|
15 October 2022
|
18,596,253
|
74,048
|
15 November 2022
|
18,519,317
|
76,935
|
15 December 2022
|
18,444,443
|
74,875
|
15 January 2023
|
18,366,649
|
77,794
|
15 February 2023
|
18,288,415
|
78,234
|
15 March 2023
|
18,217,352
|
71,063
|
15 April 2023
|
18,138,274
|
79,078
|
15 May 2023
|
18,061,313
|
76,960
|
15 June 2023
|
17,981,352
|
79,961
|
15 July 2023
|
17,903,533
|
77,819
|
15 August 2023
|
17,822,679
|
80,854
|
15 September 2023
|
17,741,368
|
81,311
|
15 October 2023
|
17,662,235
|
79,133
|
15 November 2023
|
17,580,016
|
82,219
|
15 December 2023
|
17,500,000
|
80,016
|
Payment Date / Early Termination Date / Purchase Option Date
|
Hire (USD)
|
Fixed Hire (USD)
|
Variable Hire (USD)
|
Owners’ Costs (USD)
|
Repurchase Price (USD)
|
Early Termination Amount (USD)
|
24
th
Payment Date
|
18,155,161
|
N/A
|
19,101,667
|
|||
25
th
Payment Date
|
119,269
|
16,812
|
102,458
|
18,138,350
|
N/A
|
18,995,278
|
26
th
Payment Date
|
119,269
|
16,907
|
102,363
|
18,121,443
|
N/A
|
18,888,889
|
27
th
Payment Date
|
107,727
|
15,357
|
92,371
|
18,106,086
|
N/A
|
18,782,500
|
28
th
Payment Date
|
119,269
|
17,089
|
102,181
|
18,088,997
|
N/A
|
18,676,111
|
29
th
Payment Date
|
115,422
|
16,631
|
98,791
|
18,072,367
|
N/A
|
18,569,722
|
30
th
Payment Date
|
119,269
|
17,279
|
101,990
|
18,055,087
|
N/A
|
18,463,333
|
31
st
Payment Date
|
115,422
|
16,816
|
98,606
|
18,038,271
|
N/A
|
18,356,944
|
32
nd
Payment Date
|
119,269
|
17,471
|
101,798
|
18,020,800
|
N/A
|
18,250,556
|
33
rd
Payment Date
|
119,269
|
17,570
|
101,699
|
18,003,230
|
N/A
|
18,144,167
|
34
th
Payment Date
|
115,422
|
17,099
|
98,323
|
17,986,131
|
N/A
|
18,037,778
|
35
th
Payment Date
|
119,269
|
17,766
|
101,504
|
17,968,365
|
N/A
|
17,931,389
|
36
th
Payment Date
|
115,422
|
17,290
|
98,132
|
17,951,075
|
17,825,000
|
N/A
|
37
th
Payment Date
|
119,269
|
17,964
|
101,306
|
17,933,112
|
17,933,112
|
N/A
|
38
th
Payment Date
|
119,269
|
18,065
|
101,205
|
17,915,047
|
17,915,047
|
N/A
|
39
th
Payment Date
|
107,727
|
16,409
|
91,318
|
17,898,638
|
17,898,638
|
N/A
|
40
th
Payment Date
|
119,269
|
18,259
|
101,010
|
17,880,378
|
17,880,378
|
N/A
|
41
st
Payment Date
|
115,422
|
17,770
|
97,652
|
17,862,608
|
17,862,608
|
N/A
|
42
nd
Payment Date
|
119,269
|
18,463
|
100,807
|
17,844,145
|
17,844,145
|
N/A
|
43
rd
Payment Date
|
115,422
|
17,968
|
97,454
|
17,826,177
|
17,826,177
|
N/A
|
44
th
Payment Date
|
119,269
|
18,668
|
100,601
|
17,807,509
|
17,807,509
|
N/A
|
45
th
Payment Date
|
119,269
|
18,774
|
100,496
|
17,788,735
|
17,788,735
|
N/A
|
Payment Date / Early Termination Date / Purchase Option Date
|
Hire (USD)
|
Fixed Hire (USD)
|
Variable Hire (USD)
|
Owners’ Costs (USD)
|
Repurchase Price (USD)
|
Early Termination Amount (USD)
|
46
th
Payment Date
|
115,422
|
18,271
|
97,151
|
17,770,464
|
17,770,464
|
N/A
|
47
th
Payment Date
|
119,269
|
18,983
|
100,287
|
17,751,481
|
17,751,481
|
N/A
|
4
th
Anniversary
|
115,422
|
18,474
|
96,948
|
17,733,007
|
17,733,007
|
N/A
|
49
th
Payment Date
|
119,269
|
19,194
|
100,075
|
17,713,813
|
17,713,813
|
N/A
|
50
th
Payment Date
|
119,269
|
19,303
|
99,967
|
17,694,511
|
17,694,511
|
N/A
|
51
st
Payment Date
|
107,727
|
17,533
|
90,194
|
17,676,978
|
17,676,978
|
N/A
|
52
nd
Payment Date
|
119,269
|
19,510
|
99,759
|
17,657,467
|
17,657,467
|
N/A
|
53
rd
Payment Date
|
115,422
|
18,988
|
96,434
|
17,638,480
|
17,638,480
|
N/A
|
54
th
Payment Date
|
119,269
|
19,728
|
99,542
|
17,618,752
|
17,618,752
|
N/A
|
55
th
Payment Date
|
115,422
|
19,199
|
96,223
|
17,599,553
|
17,599,553
|
N/A
|
56
th
Payment Date
|
119,269
|
19,947
|
99,322
|
17,579,605
|
17,579,605
|
N/A
|
57
th
Payment Date
|
119,269
|
20,060
|
99,210
|
17,559,546
|
17,559,546
|
N/A
|
58
th
Payment Date
|
115,422
|
19,522
|
95,900
|
17,540,023
|
17,540,023
|
N/A
|
59
th
Payment Date
|
119,269
|
20,283
|
98,986
|
17,519,740
|
17,519,740
|
N/A
|
60
th
Payment Date
|
115,422
|
19,740
|
95,682
|
17,500,000
|
N/A
|
N/A
|
Early Termination Date
|
Early Termination Amount (US$)
|
Delivery Date
|
21,655,000
|
1
st
Payment Date after Delivery Date
|
21,584,861
|
2
nd
Payment Date after Delivery Date
|
21,514,722
|
3
rd
Payment Date after Delivery Date
|
21,444,583
|
4
th
Payment Date after Delivery Date
|
21,374,444
|
5
th
Payment Date after Delivery Date
|
21,304,306
|
6
th
Payment Date after Delivery Date
|
21,234,167
|
7
th
Payment Date after Delivery Date
|
21,164,028
|
8
th
Payment Date after Delivery Date
|
21,093,889
|
9
th
Payment Date after Delivery Date
|
21,023,750
|
10
th
Payment Date after Delivery Date
|
20,953,611
|
11
th
Payment Date after Delivery Date
|
20,883,472
|
1
st
Anniversary
|
20,813,333
|
1
st
Payment Date after 1
st
Anniversary
|
20,743,194
|
2
nd
Payment Date after 1
st
Anniversary
|
20,673,056
|
3
rd
Payment Date after 1
st
Anniversary
|
20,602,917
|
4
th
Payment Date after 1
st
Anniversary
|
20,532,778
|
5
th
Payment Date after 1
st
Anniversary
|
20,462,639
|
6
th
Payment Date after 1
st
Anniversary
|
20,392,500
|
7
th
Payment Date after 1
st
Anniversary
|
20,322,361
|
8
th
Payment Date after 1
st
Anniversary
|
20,252,222
|
9
th
Payment Date after 1
st
Anniversary
|
20,182,083
|
10
th
Payment Date after 1
st
Anniversary
|
20,111,944
|
11
th
Payment Date after 1
st
Anniversary
|
20,041,806
|
2
nd
Anniversary
|
19,971,667
|
Early Termination Date
|
Early Termination Amount (US$)
|
1
st
Payment Date after 2
nd
Anniversary
|
19,901,528
|
2
nd
Payment Date after 2
nd
Anniversary
|
19,831,389
|
3
rd
Payment Date after 2
nd
Anniversary
|
19,761,250
|
4
th
Payment Date after 2
nd
Anniversary
|
19,691,111
|
5
th
Payment Date after 2
nd
Anniversary
|
19,620,972
|
6
th
Payment Date after 2
nd
Anniversary
|
19,550,833
|
7
th
Payment Date after 2
nd
Anniversary
|
19,480,694
|
8
th
Payment Date after 2
nd
Anniversary
|
19,410,556
|
9
th
Payment Date after 2
nd
Anniversary
|
19,340,417
|
10
th
Payment Date after 2
nd
Anniversary
|
19,270,278
|
11
th
Payment Date after 2
nd
Anniversary
|
19,200,139
|
For and on behalf of the Owners
XIANG T89 HK INTERNATIONAL SHIP LEASE CO., LIMITED
|
For and on behalf of the Charterers
MONTE CARLO LAX SHIPPING COMPANY LIMITED
|
||||
/s/ Lu Zhendong
|
/s/ Andreas M. Louka
|
||||
Name:
|
Lu Zhendong
|
Name:
|
Andreas M. Louka
|
||
Title:
|
Director
|
Title:
|
Attorney-in-fact
|
GUARANTEE
|
Clause
|
Page
|
1
|
DEFINITIONS AND CONSTRUCTION
|
1
|
2
|
GUARANTEE AND INDEMNITY
|
3
|
3
|
GUARANTEE PERIOD
|
7
|
4
|
PAYMENTS AND TAXES
|
7
|
5
|
REPRESENTATIONS AND WARRANTIES
|
8
|
6
|
UNDERTAKINGS
|
11
|
7
|
SET-OFF
|
13
|
8
|
BENEFIT OF THIS GUARANTEE
|
13
|
9
|
NOTICES AND OTHER MATTERS
|
13
|
10
|
GOVERNING LAW AND JURISDICTION
|
15
|
EXECUTION PAGE
|
17
|
1. |
TOP SHIPS INC.
, a company incorporated under the laws
of the Republic of Marshall Islands with its registered address at Trust Company Complex, Ajeltake Road, Majuro, Marshall Islands NH96960 (the “
Guarantor
”); and
|
2. |
XIANG T89 HK INTERNATIONAL SHIP LEASE CO., LIMITED
, a
company incorporated under the laws of Hong Kong with its registered address at 1/F., Far East Consortium Building, 121 Des Voeux Road Central, Hong Kong (the “
Owner
”) which expression includes its successors in title, permitted assigns and permitted transferees.
|
(A) |
By a bareboat charterparty dated 21 December 2018 (the “
Bareboat
Charterparty
”) and made between the Owner and MONTE CARLO LAX SHIPPING COMPANY LIMITED (the “
Charterer
”), the Owner has
agreed to let and the Charterer has agreed to take one m.t. “NORD VALIANT” on demise charter upon the terms and conditions therein mentioned.
|
(B) |
As a condition precedent to the Bareboat Charterparty, the Guarantor has granted this Guarantee in favour of the Owner.
|
1 |
DEFINITIONS AND CONSTRUCTION
|
1.1 |
Defined expressions
|
1.2 |
Definitions
|
1.3 |
Construction
|
1.3.1 |
clause headings and the index are inserted for convenience of reference only and shall be ignored in the construction of this Guarantee;
|
1.3.2 |
the rules of interpretation contained in the Bareboat Charterparty shall apply
mutatis mutandis
to the construction of this Guarantee;
|
1.3.3 |
references to a “
regulation
” include
any present or future regulation, rule, directive, requirement, request or guideline (whether or not having the force of law) of any government entity, central bank or any self-regulatory or other supra-national authority;
|
1.3.4 |
references to any person in or party to this Guarantee shall include reference to such person’s lawful successors and assigns and references
to the Owner shall also include a transferee;
|
1.3.5 |
references to a “
guarantee
” include
references to an indemnity or any other kind of assurance whatsoever (including, without limitation, any kind of negotiable instrument, bill or note) against financial loss or other liability including, without limitation, an obligation
to purchase assets or services as a consequence of a default by any other person to pay any Indebtedness and “
guaranteed
” shall be
construed accordingly;
|
1.3.6 |
a certificate by the Owner as to any amount due or calculation made or any matter whatsoever determined in connection with this Guarantee
shall be conclusive and binding on the Guarantor except for manifest error;
|
1.3.7 |
if any document, term or other matter or thing is required to be approved, agreed or consented to by the Owner such approval, agreement or
consent must be obtained in writing unless the contrary is stated; and
|
1.3.8 |
time shall be of the essence in respect of all obligations whatsoever of the Guarantor under this Guarantee, howsoever and whensoever arising.
|
1.4 |
Third party rights
|
2 |
GUARANTEE AND INDEMNITY
|
2.1 |
Guarantor as principal debtor; indemnity
|
2.1.1 |
The Guarantor irrevocably and unconditionally:
|
|
(a) |
guarantees to the Owner the due and punctual observance and performance of all the obligations of the Security Parties under the Transaction
Documents and the due and punctual payment of all the Guaranteed Liabilities; and
|
|
(b) |
undertakes with the Owner that whenever any Security Party does not pay any amount of the Guaranteed Obligations when due, the Guarantor shall
immediately on demand pay that amount as if it were the principal obligor; and
|
|
(c) |
indemnifies the Owner immediately on demand against any cost, loss or liability suffered by the Owner if any obligation guaranteed by it (or
anything which would have been an obligation if not unenforceable, invalid or illegal) is or becomes unenforceable, invalid or illegal. The
|
2.2 |
No security taken by Guarantor
|
2.3 |
Interest
|
2.4 |
Continuing security and other matters
|
2.4.1 |
secure the ultimate balance of the Guaranteed Liabilities from time to time owing to the Owner by any Security Party notwithstanding any
settlement of account or other matter whatsoever;
|
2.4.2 |
be in addition to and shall not merge with or otherwise prejudice or affect any present or future Collateral Instrument, right or remedy now
or hereafter held by or available to the Owner; and
|
2.4.3 |
not be in any way prejudiced or affected by the existence of any such Collateral Instrument, rights or remedies or by the same becoming wholly
or in part void, voidable or unenforceable on any ground whatsoever or by the Owner dealing with, exchanging, varying or failing to perfect or enforce any of the same or giving time for payment or indulgence or compounding with any
other person liable.
|
2.5 |
Waiver of Defences
|
2.5.1 |
The Guarantor acknowledges and agrees that none of the Guaranteed Liabilities shall be reduced, released or otherwise howsoever adversely
affected by any circumstances, event, action, matter or thing whatsoever, howsoever arising, including, without limitation:
|
|
(a) |
any renewal, variation, determination or increase in any accommodation or credit given by the Owner to any Security Party;
|
|
(b) |
any time or waiver granted to or composition with any Security Party or any other person;
|
|
(c) |
any variation, extension, release, discharge, compromise, dealing with, exchange or renewal of any right or remedy which the Owner may now or
hereafter have from or against any Security Party and any other person in respect of any of the obligations and liabilities of any Security Party and any other person;
|
|
(d) |
any act or omission by the Owner or any other person in taking up, perfecting or enforcing any security or guarantee from or against any
Security Party and any other person;
|
|
(e) |
the administration, insolvency, bankruptcy, liquidation, winding-up, incapacity, limitation, disability or the discharge by operation of law
of any Security Party or any change in the constitution, name and style of any Security Party or any other person; or
|
|
(f) |
any invalidity, irregularity, unenforceability, act or omission which might have discharged or affected the liability of the Guarantor had it
been a mere surety in respect of the Guaranteed Liabilities or by anything done or omitted by any person which but for this provision might operate to exonerate or discharge the Guarantor or otherwise reduce or extinguish its liability
under this Guarantee.
|
2.5.2 |
Without prejudice to the generality of Clause 2.5.1, the Guarantor expressly confirms that it intends that its obligations under this
Guarantee and the guarantee and indemnity contained in it shall extend from time to time any variation, increase, extension or addition (in each case, however fundamentally) of or to any Transaction Document.
|
2.6 |
Additional Security
|
2.7 |
Collateral Instruments
|
2.8 |
Non-Competition
|
2.8.1 |
be subrogated to any rights, security or monies held, received or receivable by the Owner or be entitled to any right of contribution;
|
2.8.2 |
be entitled and shall not claim to rank as creditor against the assets or in the bankruptcy or liquidation of any Security Party in
competition with the Owner or from any other person liable or demand or accept any Collateral Instrument in respect of the same or dispose of the same;
|
2.8.3 |
take any step to enforce any right against any Security Party or any other person liable in respect of any Guaranteed Liabilities; or
|
2.8.4 |
claim any set off or counterclaim against any Security Party or any other person liable or claim or prove in competition with the Owner in the
liquidation of any Security Parties or any other person liable or have the benefit of, or share in, any payment from or composition with, any Security Party or any other person liable or any other Collateral Instrument now or hereafter
held by the Owner for any Guaranteed Liabilities or for the obligations or liabilities of any other person liable but so that, if so directed by the Owner, it will prove for the whole or any part of its claim in the liquidation of any
Security Party or any other person liable on terms that the benefit of such proof and of all money received by it in respect thereof shall be held on trust for the Owner and applied in or towards discharge of the Guaranteed Liabilities
in such manner as the Owner shall deem appropriate.
|
2.9 |
Suspense accounts
|
2.10 |
New accounts
|
2.11 |
Settlements conditional
|
2.12 |
Guarantor to pay and deliver up certain
property
|
2.13 |
Retention of this Guarantee
|
3 |
PAYMENTS AND TAXES
|
3.1 |
Time for payment
|
3.2 |
No set-off or counter claim
|
3.3 |
Grossing up for Taxes
|
3.4 |
Currency Indemnity
|
4 |
REPRESENTATIONS AND WARRANTIES
|
4.1 |
Continuing Representations and Warranties
|
4.1.1 |
Due incorporation
the Guarantor is duly incorporated and validly existing under the laws of its jurisdiction and incorporation, has the power to own its assets
and carry on its business as it is being conducted;
|
4.1.2 |
Insolvency
the Guarantor is not insolvent or in bankruptcy or subject to any other insolvency procedure, and no receiver, trustee or analogous officer
has been appointed in respect of the Guarantor or all or any part of its assets;
|
4.1.3 |
Power to guarantee
the Guarantor has the power to execute, deliver and perform its obligations under, and has taken all necessary action (corporate or otherwise)
to authorise its execution, delivery and performance of, this Guarantee; no limit on the powers of the Guarantor will be exceeded as a result of the borrowing, grant of security, or giving of guarantees or indemnities contemplated by
this Guarantee;
|
4.1.4 |
Binding obligations
this Guarantee has been duly executed and delivered by the Guarantor and the obligations expressed to be assumed by the Guarantor in this
Guarantee are valid, legal, binding and enforceable obligations;
|
4.1.5 |
No conflict with other obligations
|
|
(a) |
contravene any existing applicable law, statute, rule or regulation or any judgment, decree or permit to which the Guarantor is subject; or
|
|
(b) |
conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which the
Guarantor is a party or is subject or by which it or any of its assets is bound; or
|
|
(c) |
contravene or conflict with any provision of any articles of association, articles of incorporation, by-laws, statutes or other constitutional
documents of the Guarantor; or
|
|
(d) |
result in the creation or imposition of or oblige the Guarantor to create any Security Interest, other than as permitted by the Owner on any
of the undertakings, assets, rights or revenues of the Guarantor;
|
4.1.6 |
Validity and admissibility in evidence
|
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations under this Guarantee;
|
|
(b) |
to ensure that the obligations expressed to be assumed by it in this Guarantee are valid, legally binding and enforceable; and
|
|
(c) |
to make this Guarantee admissible in evidence in the jurisdiction of its incorporation,
|
4.1.7 |
No litigation
|
4.1.8 |
Financial statements correct and complete
|
4.1.9 |
Sanctions
|
4.1.10 |
Registration Requirements
|
4.1.11 |
Choice of law
|
4.1.12 |
No immunity
|
4.1.13 |
Consents obtained
|
4.1.14 |
Pari passu
|
4.1.15 |
Default lists
|
4.2 |
Initial Representations and Warranties
|
4.2.1 |
No default under other Indebtedness
|
4.2.2 |
Information
|
4.2.3 |
No withholding Taxes
|
4.2.4 |
No Default
|
4.3 |
Repetition of Representations and Warranties
|
5 |
UNDERTAKINGS
|
5.1 |
General
|
5.1.1 |
Compliance with laws
|
5.1.2 |
Sanctions
|
5.1.3 |
Notice of Termination Event
|
5.1.4 |
Consents and licences
|
5.1.5 |
Perfection and protection of Guarantee
|
5.1.6 |
Other information
|
|
(a) |
all documents dispatched by it to its shareholders generally at the same time as they are dispatched;
|
|
(b) |
as soon as reasonably practicable upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which
are current, threatened or pending against it; and
|
|
(c) |
as soon as reasonably practicable, such further information including the financial condition, business and operations of the Guarantor or the
Charterer,
|
5.1.7 |
Financial Statements
|
|
(a) |
the unaudited semi annual financial statements of the Charterer and the Guarantor (each prepared in accordance with GAAP and, in the case of
the Guarantor, on a consolidated basis) as soon as available and in no event later than 90 days after each such date;
|
|
(b) |
the annual financial statement of the Charterer, as referred to in the Guarantor’s audited consolidated annual financial statements, and the
audited financial statements of the Guarantor (each prepared in accordance with GAAP and, in the case of the Guarantor, on a consolidated basis) as soon as available and in no event later than one hundred and twenty (120) days after the
end of their respective financial year;
|
5.1.8 |
Requirements as to Financial Statements
|
|
(a) |
ensure that each set of financial statements delivered pursuant to Clause 5.1.7 shall fairly represent the financial condition of the
Charterer and the Guarantor (as the case may be) as at the date as at which those financial statements were drawn up; and
|
|
(b) |
ensure that its financial statements delivered pursuant to Clause 5.1.7 is prepared using GAAP; and
|
5.1.9 |
Notification of Default
|
5.2 |
Negative undertakings
|
5.2.1 |
No merger
|
6 |
SET-OFF
|
6.1 |
Set-off
|
7 |
BENEFIT OF THIS GUARANTEE
|
7.1 |
Benefit and burden
|
7.2 |
Changes in constitution of the Owner
|
7.3 |
Disclosure of information
|
8 |
NOTICES AND OTHER MATTERS
|
8.1 |
Notices
|
8.1.1 |
Unless otherwise specifically provided herein, every Notice under or in connection with this Guarantee shall be given in English by letter
delivered personally and/or sent by post and/or transmitted by fax.
|
8.1.2 |
In this Clause 8, “
Notice
” and or “
Notices
” includes any demand, consent, authorisation, approval, instruction, request, waiver or other communication.
|
8.2 |
Address for Notices, effective date of Notices
|
8.2.1 |
Subject to Clause 8.2.4, notices to the Guarantor shall be deemed to have been given and shall take effect when received in full legible form
by the Guarantor at the address and/or the fax number and/or email address appearing below (or at such other address, fax number or email address as the Guarantor may hereafter specify for such purpose to the Owner by notice in
writing):
|
|
Address: |
1, Vass Sofias 151 24 Marousi c/o Top Ships
|
|
Fax: |
0030 210 6141272
|
|
Email: |
atsirikos@topships.org
|
|
Attention: |
Alexandros Tsirikos
|
8.2.2 |
Notwithstanding the provisions of Clause 8.2.1 or 8.2.4, a Notice given pursuant to this Guarantee shall be deemed to have been given and
shall take effect when delivered, sent or transmitted by the Owner to a Guarantor to the address or fax number referred to in clause 8.2.1.
|
8.2.3 |
Subject to clause 8.2.4, Notices to the Owner shall be deemed to be given, and shall take effect, when received in full legible form by the
Owner at the address and/or the fax number appearing below (or at such other address or fax number as the Owner may hereafter specify for such purpose to the Guarantor by notice in writing):
|
|
Address: |
c/o Bank of Communications Financial Leasing Co., Ltd 28/F., 333 Lujiazui Ring Road, Shanghai, China
|
|
Fax: |
+86 -21-6278 8317
|
|
Email: |
fang xz@bankcomm.com
/
xux_31@bankcomm.com
|
|
Attention: |
Mr. Fang Xiuzhi / Mr. Xu Xin
|
8.2.4 |
If under clause 8.2.1 or 8.2.3 any Notice would be deemed to have been given and effective on a day which is not a Banking Day in the place of
receipt or is outside normal business hours in the place of receipt, the Notice shall be deemed to have been given and to have taken effect at the opening of business on the next Banking Day.
|
8.3 |
No implied waivers, remedies cumulative
|
8.4 |
Acknowledgment
|
8.5 |
Language
|
8.6 |
Expenses
|
8.7 |
Partial Invalidity
|
8.8 |
Counterparts
|
9 |
GOVERNING LAW AND ARBITRATION
|
9.1 |
Governing Law
|
9.1.1 |
This Guarantee and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance
with English law in accordance with the Arbitration Act in accordance with English law 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.
|
9.2 |
Arbitration
|
EXECUTED as a DEED
For and on behalf of
TOP SHIPS INC.
by Alexandre Tsirikos
Witnessed / Verified by
|
)
)
)
)
)
)
|
/s/
Alexandre Tsirikos
|
/s/ Andreas Louka
|
|
Name: Andreas Louka
|
|
Title: Advocate
|
SIGNED by Lu Zhendong
for and on behalf of
XIANG T89 HK INTERNATIONAL SHIP LEASE CO., LIMITED
Witnessed / Verified by
|
)
)
)
)
)
)
|
/s/
Lu Zhendong
|
/s/ Wang Ying
|
|
Name: Wang Ying
|
|
Title:
|
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:
2019
|
Builder/Yard:
Hyundai Mipo Dockyard Co.,
Ltd.
|
1.
|
Purchase Price
|
|
The Purchase Price is
United States
Dollars Thirty Four Million only (US$34,000,000)
|
||
2.
|
Deposit
|
|
|
||
|
|
|
|
|
|
||
|
||
3.
|
Payment (See also Clause 22 (Partial set-off of Purchase Price) and Clause 23 (Payment))
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|
|
||
|
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|
|
4.
|
Inspection
|
|
|
||
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||
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||
|
||
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||
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||
|
||
|
||
|
||
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
|
||
|
||
|
||
(b)
The Sellers shall keep the
Buyers well informed of the Vessel's itinerary and shall provide the Buyers with provide the Buyers with twenty (20), ten
(10), five (5)
and three (3) days' notice of the date the
|
||
|
||
(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 Canceling 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
|
||
6.
|
Divers Inspection / Drydocking
|
|
|
||
|
|
|
|
|
|
|
||
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|
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|
||
|
||
|
||
|
||
|
|
|
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|
|
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|
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|
|
|
||
|
||
7.
|
Spares, bunkers and other items
|
|
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on shore. All spare parts and spare
equipment including spare tail-end shaft(s) and/or spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of
|
||
|
||
Items on board at the time of
|
||
The
|
||
|
||
|
||
|
||
|
||
|
||
|
||
8.
|
|
|
The place of closing:
Piraeus or such
other place as may be agreed between the Sellers and the Buyers
|
||
|
||
(i)
|
Legal Bill(s) of Sale in a form recordable in the Buyers' Nominated Flag State, transferring title of the Vessel and stating that the
Vessel is free from all mortgages, encumbrances and maritime liens or any other debts whatsoever, duly notarially attested and legalised or apostilled, as required by the Buyers' Nominated Flag State;
|
|
(ii)
|
Evidence that all necessary corporate, shareholder and other action has been taken by the Sellers to authorise the execution, delivery and
performance of this Agreement;
|
|
(iii)
|
Power of Attorney of the Sellers appointing one or more representatives to act on behalf of the Sellers in the performance of this
Agreement, duly notarially attested and legalised or apostilled (as appropriate);
|
|
(iv)
|
|
|
(v)
|
Declaration of Class or (depending on the Classification Society) a Class Maintenance Certificate issued
|
|
|
|
|
|
|
|
||
(vi
|
Commercial Invoice for the Vessel;
|
|
|
|
|
|
|
|
(
|
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;
|
|
(
|
The Sellers' letter of confirmation that to the best of their knowledge, the Vessel is not black listed by any nation or international
organisation;
|
|
(ix)
|
A certificate from an authorised signatory of the Sellers confirming that all copies of documents provided under this
Agreement are true copies of such documents;
|
|
(x)
|
A Protocol of Delivery and Acceptance signed by the Parties confirming the date and time of delivery of the Vessel from
the Sellers to the Buyers;
|
|
(xi)
|
The Buyers being satisfied that, in their opinion, (A) the conditions precedent set out in paragraph 34 (Conditions
precedent) of the Bareboat Charter (as defined in Clause 24 (Further definitions) have been, or will be in the Buyers' opinion, satisfied on the Delivery Date, and (B) no Potential Termination Event (as defined in the Bareboat Charter) is
continuing or would result from the proposed sale and purchase of the Vessel under this Agreement and chartering of the Vessel under the Bareboat Charter;
|
|
(xii)
|
An original of the notice of assignment in respect of the Warranties (as defined in Clause 25 (Assignment of Builder's
warranties)) duly executed by the Sellers together with the acknowledgement duly executed by the Builder in the form set out in Appendix A (Form of notice of assignment);
|
|
(xiii)
|
A copy of the protocol of delivery and acceptance made between the Builder (as sellers) and the Sellers (as buyers)
under the Building Contract (as defined in Clause 24 (Further definitions)) confirming the date and time of delivery of the Vessel from the Builder to the Sellers;
|
|
(xiv)
|
Evidence of full payment to the Builder of any part of the Contractual Purchase Price (as defined in Clause 24 (Further
Definitions)) which is due and payable on or before the Prepositioning Date (as defined in Clause 24 (Further Definitions)) and which does not form part of the Builder's Portion (as defined in Clause 24 (Further Definitions)).]
|
|
The conditions set out in this Clause 8(a) are for the sole benefit of the Buyers and may be waive or deferred by the
Buyers in whole or in part and with or without conditions. The foregoing is without prejudice to the Buyers' rights to require fultilment of any such conditions by the Sellers in whole or in part any time after the Delivery Date.
|
||
(b)
At the time delivery the
Buyers shall provide the Sellers with:
|
||
(i)
|
Evidence that all necessary corporate, shareholder and other action has been taken by the Buyers to authorise the execution, delivery and
performance of this Agreement; and
|
|
(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).
|
|
(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 for review and comment by the other party not later than ________________________
(state number of days)
, or if left blank, 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.
|
|
(e)
Concurrent with the exchange
of documents in Sub-clause (a) and Sub-clause (b) above,
|
|
(f)
Other technical documentation
which may be in the Sellers' possession shall promptly after delivery be forwarded to the Buyers at
Sellers'
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.
|
|
|
|
9.
|
Encumbrances
|
The Sellers warrant that the Vessel, at the time of delivery, is free from all charters
(other than the Bareboat Charter (as defined in Clause 24 (Further definitions)), the Sub Charter (as defined in the Bareboat Charter) and any other charters disclosed to and approved by the
Buyers)
, encumbrances, mortgages and maritime liens or any other debts whatsoever, and is not subject to Port State or other administrative detentions. The Sellers hereby undertake to indemnify the Buyers against all consequences of
claims made against the Vessel which have been incurred prior to the time of delivery.
|
|
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
|
(See also Clause 20 (Delivery under Building Contract and Bareboat Charter))
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 is where is"
|
|
However, the Vessel shall be delivered free of cargo and free of stowaways with her Class maintained without condition/recommendation*,
free of average damage affecting the Vessel's class, and with her classification certificates and national, certificates, as well as all other certificates the Vessel had at the time of
|
|
|
|
*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
|
|
|
13.
|
Buyers' default
|
|
|
Should the Purchase Price not be paid in accordance with
Clause
2
3
(Payment), the Sellers have the right to
cancel this Agreement,
|
|
14.
|
Sellers' default
|
Should the Sellers fail to give
|
given in accordance with Clause 5(b) 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
|
|
Should the Sellers fail to give
|
|
15.
|
Buyers' representatives
|
|
|
16.
|
Law and Arbitration
|
(a)
*
This Agreement
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
|
For and on behalf of the Sellers
PCH77 Shipping Company Limited
|
For and on behalf of the Buyers
Xiang T88 HK International Ship Lease Co., Limited
|
|
/s/ Andreas Louka
|
/s/ Lu Zhendong
|
|
Name: Andreas Louka
|
Name: Lu Zhendong
|
|
Title: Attorney-in-fact
|
Title: Director
|
|
1. |
Definitions
|
2. |
Charter Period
|
3. |
Delivery (See Additional Clause 35 (Delivery of the Vessel)
|
4. |
Time for Delivery (See Additional Clause 35 (Delivery of the Vessel)
|
5. |
Cancelling (See Additional Clause 33 Effectiveness of this Charter)
|
6. |
Trading Restrictions
|
7. |
Surveys on Delivery and Redelivery
|
8. |
Inspection
|
9. |
Inventories, Oil and Stores
|
10. |
Maintenance and Operation
|
|
(ii) |
New Class and Other Safety Requirements
- In the event of any
improvement, structural changes or new equipment becoming necessary for the continued operation of the Vessel by reason of new class requirements or by compulsory legislation
|
|
(iii) |
Financial Security
- The Charterers shall maintain financial
security or responsibility in respect of third party liabilities as required by any government, including federal, state or municipal or other division or authority thereof, to enable the Vessel, without penalty or charge, lawfully to
enter, remain at, or leave any port, place, territorial or contiguous waters of any country, state or municipality in performance of this Charter without any delay. This obligation shall apply whether or not such requirements have been
lawfully imposed by such government or division or authority thereof.
|
11. |
Hire (See Additional Clause 41 (Charterhire))
|
12. |
Mortgage (See also Additional Clause 44 (Owners’ Right to Mortgage))
|
|
|
*) |
(b) The Vessel chartered under this Charter
|
|
|
13. |
Insurance and Repairs (See also Additional Clause 48 (Insurances, Total Loss))
|
|
|
15. |
Redelivery (See also Additional Clause 51 (Redelivery))
|
16. |
Non-Lien
|
17. |
Indemnity (See also Clause 43 (Indemnity)
|
18. |
Lien
|
19. |
Salvage
|
20. |
Wreck Removal
|
21. |
General Average
|
22. |
Assignment, Sub-Charter and Sale (See Additional Cluase 53 (Assignment and set-off)
|
23. |
Contracts of Carriage
|
*) |
(a)
The Charterers are to procure that all
documents issued during the Charter Period evidencing the terms and conditions agreed in respect of carriage of goods shall contain a paramount clause incorporating any legislation relating to carrier's liability for cargo compulsorily
applicable in the trade; if no such legislation exists, the documents shall incorporate the Hague-Visby Rules. The documents shall also contain the New Jason Clause and the Both-to-Blame Collision Clause.
|
|
|
|
|
24. |
|
25. |
Requisition/Acquisition
|
26. |
War
|
|
(i) |
to comply with all orders, directions, recommendations or advice as to departure, arrival, routes, sailing in convoy, ports of call, stoppages, destinations,
discharge of cargo, delivery, or in any other way whatsoever, which are given by the Government of the Nation under whose flag the Vessel sails, or any other Government, body or group whatsoever acting with the power to compel
compliance with their orders or directions;
|
|
(ii) |
to comply with the orders, directions or recommendations of any war risks underwriters who have the authority to give the same under the terms of the war
risks insurance;
|
|
(iii) |
to comply with the terms of any resolution of the Security Council of the United Nations, any directives of the European Community, 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 Owners are subject, and to obey the orders and directions of those who are charged with their
enforcement.
|
27. |
Commission
|
28. |
Termination (See Additional Clauses 49 (Termination Events) and 50 Owners’ rights on termination))
|
|
|
|
|
|
(2) Clause 13(a) |
|
|
|
29. |
Repossession
|
30. |
Dispute Resolution
|
*) |
(a)
This Contract shall be governed by and
construed in accordance with English law and any dispute arising out of or in connection with this Contract 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.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31. |
Notices (See Additional Clause 52 (Communications))
|
OPTIONAL
PART |
|
|
|
|
|
|
|
|
|
|
OPTIONAL
PART |
OPTIONAL
PART |
|
|
|
|
|
|
CLAUSE
|
PAGE
|
32. |
DEFINITIONS
|
32.1 |
In this Charter, unless the context otherwise requires, the following expressions shall have the following meanings:
|
|
(a) |
in respect of technical management of the Vessel,
CENTRAL MARE INC.
of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960; and
|
|
(b) |
in respect of commercial management of the Vessel,
CENTRAL SHIPPING INC.
of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960.
|
|
(a) |
in relation to a day on which a payment is to be made or calculated in Dollars, a day (other than a Saturday or a Sunday) on which banks are
open for business in Amsterdam, Athens, New York, Beijing and Hong Kong; and
|
|
(b) |
in relation to any other day, a day (other than a Saturday or a Sunday) on which banks are open for business in Amsterdam, Athens, Beijing and
Hong Kong.
|
|
(a) |
Delivery not occurring after the delivery under the MOA takes place; and/or
|
|
(b) |
this Charter is terminated or cancelled prior to the expiry of the Charter Period for whatsoever reason; and/or
|
|
(c) |
the lease of the Vessel under this Charter being prevented or early terminated due to the occurrence of a Termination Event.
|
|
(a) |
by means of the holding of shares, or the possession of voting powers in or in relation to such Security Party; or
|
|
(b) |
as a result of any powers conferred by the articles of association or any other document regulating such Security Party.
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule I (
Repurchase Price Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
).
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule VII (
Early Termination Amount Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
),
|
|
(a) |
any claim by, or directive from, any applicable governmental, judicial or other regulatory authority alleging breach of, or non-compliance
with, any Environmental Laws or Environmental Approvals or otherwise howsoever relating to or arising out of an Environmental Incident; or
|
|
(b) |
any claim by any other third party howsoever relating to or arising out of Environmental Incident (and, in each such case, “
claim
” shall means a claim for damages, clean-up costs, compliance, remedial action or otherwise); or
|
|
(c) |
any Proceedings arising from any of the foregoing.
|
|
(a) |
any release of Environmentally Sensitive Material from the Vessel; or
|
|
(b) |
any incident in which Environmentally Sensitive Material is released from a vessel other than the Vessel and where the Vessel is actually or
potentially liable to be arrested as a result and/or the Charterers or the Manager or any manager of the Vessel are actually or allegedly at fault or otherwise liable.
|
|
(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 respect of 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 hire purchase agreement) of a type not referred to in any other
paragraph
|
|
(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 respect of 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 respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule V (
Owners’ Costs Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
).
|
|
(a) |
a guarantee to be executed by Guarantor A in favour of the Owners in respect of,
inter alia
, the obligations of the Charterers under this Charter in the form acceptable to the Owners; and
|
|
(b) |
a guarantee to be executed by Guarantor B in favour of the Owners in respect of,
inter alia
, the obligations of the Charterers under this Charter in the form acceptable to the Owners.
|
|
(a) |
with respect to the first Hire Calculation Period:
|
|
(i) |
in the case of the Delivery Date falls on a day which is before the 15
th
day
of the relevant month, the period commencing from the Delivery Date and ending on the 15
th
day of that month;
|
|
(ii) |
in the case of the Delivery Date falls on a date which is on or after the 15
th
day of the relevant month, the period commencing from the Delivery Date and ending on the 15
th
day of the succeeding month after the Delivery Date; and
|
|
(b) |
with respect to each subsequent Hire Calculation Period, each successive period commencing on the first day after the expiry of the immediate
preceding Hire Calculation Period and ending on the 15
th
day of the next succeeding calendar month, except that if a Hire Calculation Period would
otherwise extend beyond the Charter Period Expiry Date, then such Hire Calculation Period shall end on the Charter Period Expiry Date.
|
|
(a) |
the assets, liabilities, financial results of or operations or financial condition, of any Security Party ;
|
|
(b) |
the performance of the obligations of any Security Party under this Charter and/or any Transaction Document to which it is a party; or
|
|
(c) |
the validity, legality or enforceability of any Transaction Document to which it is a party.
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule V (
Owners’ Costs Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
).
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule I (
Repurchase Price Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
).
|
|
(a) |
in the event that no prepayment is made in accordance with Clause 47.3, Schedule I (
Repurchase Price Schedule
); or
|
|
(b) |
in the event that a prepayment is made in accordance with Clause 47.3, Schedule VI (
Post-prepayment adjustment schedule
),
|
|
(a) |
the Charterer Account Security Deed;
|
|
(b) |
the General Assignment;
|
|
(c) |
the Guarantees;
|
|
(d) |
the Share Charge;
|
|
(e) |
the Manager’s Undertaking; and
|
|
(f) |
any other documents which may be executed by any Security Party in favour of the Owners and designated by the Owners as a “Security Document”,
|
|
(a) |
the Charterers;
|
|
(b) |
the Guarantors; and
|
|
(c) |
a party (other than the Owners) to any Security Document (for the avoidance of doubt, always excluding the Manager and the Sub-Charterer),
|
|
(a) |
the time charter dated 16 October 2017 and entered into between the Charterers, as owner, and the Sub-Charterer, as time charterer, as the
same may be supplemented, amended or extended from time to time; or
|
|
(b) |
any other sub-charter permitted under this Charter and entered into by the Charterers, as owner, from time to time.
|
|
(a) |
Shell Tankers Singapore Private Limited, a company incorporated under the laws of Singapore and having its registered office at 9 North Buona
Vista Drive #07-01 The Metropolis Singapore 138588. Singapore; or
|
|
(b) |
any other party (that are not the Charterers) to a Sub-Charter.
|
|
(a) |
all Charter-hire due and payable, but unpaid, under this Charter up to (and including) the Termination Date together with interest accrued
thereon pursuant to Clause 42.3 from the due date for payment thereof to the Termination Date;
|
|
(b) |
any other sums, other than the Charter-hire, due and payable, but unpaid, under this Charter and the other Transaction Documents together with
interest accrued thereon pursuant to Clause 42.3 hereof up to the Termination Date;
|
|
(c) |
if the Termination Date falls:
|
|
(i) |
before the 3
rd
Anniversary and on an Early Termination Date, an amount equal
to the Early Termination Amount applicable to such Early Termination Date; and
|
|
(ii) |
on or after the 3
rd
Anniversary and on a Purchase Option Date, an amount
equal to the Repurchase Price applicable to such Purchase Option Date;
|
|
(d) |
if the Termination Date falls:
|
|
(i) |
before the 3
rd
Anniversary and on a date that is not an Early Termination
Date, an amount equal to the aggregate of (A) the Early Termination Amount applicable to the Early Termination Date immediately preceding the Termination Date, and (B) an amount equal to (X-Y)*Z, where X = the Early Termination Amount
applicable to the Early Termination Date immediately preceding the Termination Date, Y = the Early Termination Amount applicable to the Early Termination Date immediately succeeding the Termination Date, and Z = the number of days
elapsed between the Early Termination Date immediately preceding the Termination Date and the Termination Date; and
|
|
(ii) |
on or after the 3
rd
Anniversary and on a date that is not a Purchase Option
Date, an amount equal to the aggregate of (A) the Repurchase Price applicable to the Purchase Option Date immediately preceding the Termination Date, and (B) an amount equal to (X-Y)*Z, where X = the Repurchase Price applicable to the
Purchase Option Date immediately preceding the Termination Date, Y = the Repurchase Price applicable to the Purchase Option Date immediately succeeding the Termination Date, and Z = the number of days elapsed between the Purchase Option
Date immediately preceding the Termination Date and the Termination Date;
|
|
(e) |
an amount equal to two point five per cent. (2.50%) of the Early Termination Amount or the Repurchase Price (as the case may be) applicable on
such Termination Date;
|
|
(f) |
all liabilities, costs and expenses (including, without limitation, legal fees) so incurred in relation to locating or 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
|
|
(g) |
any and all Losses incurred or suffered by the Owners as a result of the early termination of this Charter, including, without limitation, all
Losses incurred or suffered by the Owners 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 and/or incurred under the Finance Documents less any Swap Gain);
|
|
(h) |
any and all Breakage Costs; and
|
|
(i) |
the applicable interest accrued on the sums under the above items calculated pursuant to Clause 42.3 from the due date to the actual date of
payment.
|
|
(a) |
actual or constructive loss or compromised or arranged total loss of the Vessel, or
|
|
(b) |
the Requisition 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 Owners within three (3) Months after such an incident.
|
|
(a) |
in the case of an actual total loss of the Vessel, on the actual date and at the time such Vessel was lost or, if such date is not known, on
the date on which such Vessel was last reported; or
|
|
(b) |
in the case of a constructive total loss of the Vessel, upon the date and at the time notice of abandonment of the Vessel is given to the
insurers of the Vessel (provided a claim for total loss is admitted by such insurers) or, if such insurers do not forthwith admit such a claim, on the date and at the time at which either a total loss is subsequently admitted by the
insurers or a total loss is subsequently adjudged by a competent court of law or arbitration tribunal to have occurred. The Charterers, upon the request of the Owners, shall promptly execute such documents to enable the Owners to
abandon the Vessel and claim a constructive Total Loss and shall give all assistances in pursuing the said claim; or
|
|
(c) |
in the case of a compromised or arranged total loss, on the date upon which a binding agreement as to such compromised or arranged total loss
has been entered into by the insurers of the Vessel; or
|
|
(d) |
in the case of Requisition, on the date when it is determined by the Approved Insurers or the approved insurers the Owners is irretrievably
deprived of the Vessel; or
|
|
(e) |
in case of 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, the date on the expiry of six (6) Months after such an incident or such other shorter period as the Owners may, in their sole
discretion, decide or the date when the assured has given notice of abandonment to the insurers.
|
|
(a) |
this Charter;
|
|
(b) |
the MOA;
|
|
(c) |
the Security Documents;
|
|
(d) |
all notices, amendments, addenda, acknowledgements, consents, certificates, instruments, deeds, charges and other documents and/or agreements
issued or entered into or, as the case may be, to be issued or entered into pursuant to any of the foregoing; and
|
|
(e) |
any other document designated as such by the Owners and the Charterers.
|
32.2 |
The headings in this Charter do not affect its interpretation.
|
32.3 |
Construction
|
|
(i) |
the
“Owners”
, the
“Charterers”
, any
“Guarantor”
,
any
“Security Party”
, any “
Sub-Charterer
”
any
“party”
shall be construed as to include its successors in title, permitted assigns and permitted transferees;
|
|
(ii) |
“assets”
includes present and future
properties, revenues and rights of every description;
|
|
(iii) |
a
“Transaction Document”
or any other
agreement or instrument is a reference to that Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
|
(iv) |
“indebtedness”
includes any obligation
(whether incurred as principal or surety) for the payment or repayment of money, whether present or future, actual or contingent, and shall include indebtedness incurred in respect of (i) money borrowed or raised, (ii) any bond, note,
loan stock, debenture or similar instrument, (iii) acceptance or documentary credit facilities, (iv) deferred payments for assets or services acquired, (v) rental payments under and any amounts payable on termination of leases (whether
in respect of ships, land machinery equipment or otherwise) entered into primarily as a method of raising finance or of financing the acquisition of the asset leased, (vi) guarantees, bonds, stand-by letters of credit or other
instruments issued in connection with the performance of contracts and (vii) guarantees or other assurances against financial loss in respect of Indebtedness of any person falling within any of paragraphs (i) to (vi) above;
|
|
(v) |
a
“person”
includes any individual,
firm, company, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
|
(vi) |
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;
|
|
(vii) |
a “
Termination Event
” is “continuing”
if it has not been waived and/or remedied;
|
|
(viii) |
a provision of law is a reference to that provision as amended or re-enacted; and
|
|
(ix) |
a time of day is a reference to Beijing time.
|
33. |
EFFECTIVENESS OF THIS CHARTER
|
33.1 |
This Charter shall not become effective until all of the following conditions have been fulfilled:
|
|
(a) |
the execution of this Charter by both parties hereto; and
|
|
(b) |
the Owners receiving, contemporaneously with the execution of this Charter, the originals of the following duly executed documents:
|
|
(i) |
the MOA; and
|
|
(ii) |
the Security Documents, other than the General Assignment, the Charterer Account Security Deed and the Manager’s Undertaking, which shall be executed and
dated on the Delivery Date;
|
33.2 |
Notwithstanding any provision of Clause 33.1, Clause 40.1 (
Charter
Arrangement Fee
), Clause 42 (
Payments
) and Clause 43 (
Indemnity
) shall take effect upon the execution of this Charter.
|
33.3 |
Unless otherwise agreed by the parties hereto in writing, in the event that:
|
|
(a) |
the MOA is cancelled, terminated, rescinded or otherwise ceases to remain in full force and effect for any reason prior to the Delivery Date;
[or]
|
|
(b) |
the Vessel is not delivered to the Owners in accordance with the terms of the MOA on or before the MOA Cancelling Date; or
|
|
(c) |
the Vessel is not delivered to the Charterers (as buyers) in accordance with the terms of the Building Contract,
|
33.4 |
With immediate effect upon the Charterers’ receipt of the notice of cancellation from the Owners in accordance with Clause 33.3:
|
|
(a) |
this Charter shall be deemed to be cancelled forthwith and the Owners’ obligations under this Charter shall immediately be terminated and
discharged (with the exception of Clause 17 (
Indemnity
) (Part II) and Clause 43 (
Indemnity
)); and
|
|
(b) |
the Charterers shall forthwith pay to the Owners the aggregate of the following amounts:
|
|
(i) |
any and all costs and expenses (including, without limitation to, legal fees) incurred by the Owners in connection with the entering into of this Charter, the
MOA, the Transaction Documents and the transactions contemplated therein;
|
|
(ii) |
any unpaid Charter Arrangement Fee (irrespective of whether such unpaid balance has become due and payable in accordance with Clause 40.1 (
Charter Arrangement Fee
)), it being understood that such payment shall not be construed as a penalty but shall represent an agreed
estimate of the loss and damage suffered by the Owners in entering into this Charter and shall therefore be paid as compensation to the Owners;
|
|
(iii) |
any and all Breakage Costs incurred by the Owners as a result of such cancellation; and
|
|
(iv) |
all other amounts due and payable (other than the Termination Sum) but unpaid by the Charterers under this Charter together with interest accruing thereon
pursuant to Clause 42.3.
|
34. |
CONDITIONS PRECEDENT
|
34.1 |
The Owners will not be obliged to charter the Vessel to the Charterers in accordance with the terms and conditions of this Charter unless the Owners, on or
before the Delivery Date, has received all of the documents and other evidences listed in Schedule II (
Conditions Precedent
) in form
and substance satisfactory to the Owners.
|
34.2 |
The Owners will only be obliged to charter the Vessel to the Charterers in accordance with the terms and conditions of this Charter if on the Delivery Date:-
|
|
(a) |
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;
|
|
(b) |
each of the representations and warranties contained in Clause 46 (
Representations and Warranties
) is true and correct in all material aspects by reference to the facts and circumstances then existing; and
|
|
(c) |
delivery of the Vessel to the Charterers by the Builder under the Building Contract and delivery of the Vessel from the Charterers to the
Owners under and subject to the terms of the MOA.
|
34.3 |
The conditions precedent set out in Schedule II (
Conditions
Precedent
) and this Clause 34 are for the sole benefit of the Owners and may be waived by the Owners in whole or in part, with or without conditions, on or before the Delivery Date without prejudicing the right of the Owners to
require fulfilment of such conditions in whole or in part at any time thereafter.
|
34.4 |
The Owners may in its discretion deliver the Vessel to the Charterers under this Charter notwithstanding that one or more of the conditions precedent set out
in Clause 34.1 or Clause 34.2 have not been satisfied by the Delivery Date, in which event the Charterers shall procure the satisfaction of the relevant conditions precedent within seven (7) days thereafter or such longer period as the
Owners in its absolute discretion shall agree in writing.
|
35. |
DELIVERY OF THE VESSEL
|
35.1 |
As at the date of this Charter, the Vessel is under construction by the Builder pursuant to the terms of the Building Contract and the Owners have entered
into the MOA with the Sellers. The Charterers hereby confirm that they have reviewed, received and agreed to the forms of the Building Contract and the MOA (or copies thereof).
|
35.2 |
The Owners will deliver and the Charterers will take delivery of the Vessel under this Charter immediately, which to the extent possible shall be deemed to
take place simultaneously, after (A) the Builder delivers the Vessel to the Sellers under the Building Contract and (B) the Sellers deliver the Vessel to the Owners under and subject to the terms of the MOA upon the Delivery Date,
irrespective of whether
|
|
(a) |
if the Charterers are unable to reject the Vessel under the Building Contract, then the Charterers shall in no circumstances be entitled to
reject the Vessel under this Charter; and
|
|
(b) |
subject to the foregoing, once the Builder has delivered the Vessel and the Charterers have accepted the Vessel under the Building Contract
and the Owners (as buyers under the MOA) will, without prejudice and subject to fulfilment (to the Owners’ satisfaction) of all conditions to delivery pursuant to the MOA and this Charter, be deemed to have accepted the Vessel under the
MOA, the Charterers will be deemed to have simultaneously accepted the Vessel under this Charter on an “as is where is” basis in exactly the same form and state as the Vessel is delivered by the Charterers to the Owners pursuant to the
MOA with any faults, deficiencies and errors of description.
|
35.3 |
The Delivery Date for the purpose of this Charter shall be the date when the Vessel is actually delivered by the Charterers (as sellers) to the Owners (as
buyers) pursuant to the MOA. The Owners shall be under no responsibility for any losses or damage as a result of any delay in delivery of the Vessel to the Charterers for whatsoever reason.
|
35.4 |
Without prejudice to the provisions of Clause 35.2, the Owners and the Charterers shall on the Delivery Date sign an Acceptance Certificate evidencing
delivery of the Vessel hereunder and delivery of which will constitute:
|
|
(a) |
irrevocable, final and conclusive acceptance of the Vessel by the Charterers for the purposes of this Charter;
|
|
(b) |
irrevocable, final and conclusive evidence that, for the purposes of the obligations and liabilities of the Owners hereunder or in connection
herewith, the Vessel is at the time of delivery to the Charterers 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
Charterers and free and clear of all Encumbrances and debts of whatsoever nature; and
|
|
(c) |
irrevocable, final and conclusive evidence that the Vessel is satisfactory in all respects and complies with the requirements of this Charter.
|
35.5 |
The Charterers shall pay to the Owners any of the Delivery Costs from time to time within five (5) Banking Days after presentation of evidence.
|
36. |
EXCLUSION OF WARRANTIES
|
36.1 |
No responsibility for Vessel
|
|
(a) |
the Owners are not the manufacturer or original supplier of the Vessel which has been purchased by the Owners pursuant to the MOA and
therefore the Owners make no condition, term, representation or warranty, express or implied (and whether statutory, contractual or otherwise) as to the Owners’ title to the Vessel or as to the seaworthiness, merchantability,
classification, condition, design, quality, 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. Delivery (or, as the case may be, deemed delivery) of the Vessel to the Charterers under this Charter shall be conclusive proof evidencing that, for the purposes of the
obligations and liabilities of the Owners hereunder or in connection herewith, the Vessel is at that time seaworthy and in all aspects satisfies any intended use of the Charterers, 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 Charterers and free and clear of all Encumbrances and debts of whatsoever nature, other than the Encumbrances permitted or created by
the Owners pursuant to the terms hereof, and the Charterers hereby waive all their rights in respect of any warranty or condition implied (whether statutory or otherwise) on the part of the Owners and all claims against the Owners
howsoever the same might arise at any time in respect of the physical condition of the Vessel, or arising out of the construction, operation or performance of the Vessel and the chartering thereof under this Charter (including, without
limitation, in respect of the seaworthiness or otherwise of the Vessel);
|
|
(b) |
the condition of the Vessel on Delivery to the Charterers under this Charter is the sole responsibility of the Charterers;
|
|
(c) |
the Vessel is, or will upon Delivery be, satisfactory for the business of the Charterers and any intended use of the Charterers;
|
|
(d) |
the Owners have purchased the Vessel solely for the purpose of leasing the Vessel to the Charterers under this Charter and the Owners enter
into this Charter at the request of, but not on behalf of, the Charterers; and
|
|
(e) |
the Owners will have no responsibility whatsoever for any loss of profit resulting directly or indirectly from any defect or alleged defect in
the Vessel.
|
36.2 |
As Is, Where Is
|
36.3 |
Charterers’ Acknowledgment
|
36.4 |
The Charterers hereby waive 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 Owners and all of its claims against the Owners howsoever and whatsoever that may arise in respect of the Vessel or the Owners’ 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).
|
36.5 |
The Charterers agree that the Owners 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 Charterers or any other person as a result of the Vessel being unusable.
|
37. |
FLAG AND CLASS
|
37.1 |
The Vessel shall be registered in the ownership of the Owners under the Flag State (with a proper demise charter notation in respect of this Charter) for the
duration of the Charter and the Charterers shall provide full cooperation and assistance and bear all the costs and expenses to effect such registration.
|
37.2 |
The Charterers shall ensure that the Vessel shall be entered and maintained in the highest class under 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 Owners and/or the Lenders) throughout the duration of this Charter, free of all overdue recommendations and conditions, and comply with the rules
and regulations of the Classification Society.
|
38. |
MANAGEMENT
|
38.1 |
The technical and commercial management of the Vessel after Delivery and during the Charter Period shall be with the Manager.
|
38.2 |
The Owners’ prior written consent shall be obtained in case of any change of the Manager during the Charter Period to any Manager which is not an Approved
Manager. If the Owners consent to such change, the Charterers shall further procure that before such appointment commences, the Manager shall first issue and deliver to the Owners (or, as the case maybe, the Mortgagee) a Manager’s
Undertaking in such form and substance as the Owners may require.
|
39. |
CHARTER PERIOD AND PURCHASE OPTION
|
39.1 |
The period of chartering of the Vessel under this Charter shall commence on the Delivery Date and end on the Charter Period Expiry Date unless otherwise
terminated in accordance with the terms hereof (the “
Charter Period
”).
|
39.2 |
On and after the 3
rd
anniversary of the Delivery Date until the Charter
Period Expiry Date, the Charterers have the option to purchase the Vessel from the Owners on any Purchase Option Date, provided all the following conditions are satisfied:-
|
|
(a) |
the Charterers shall serve the Owners at least sixty (60) days’ prior written notice (the “
Purchase Option Notice
”), which shall specify the Purchase Option Date on which the Charterers intend to purchase the Vessel;
|
|
(b) |
no Termination Event has occurred and is continuing; and
|
|
(c) |
on or before the scheduled Purchase Option Date (as specified in the Purchase Option Notice), the Charterers shall have paid to the Owners the
aggregate amount of the following sums (the “
Purchase Option Sum
”):
|
|
(i) |
the Repurchase Price applicable to such Purchase Option Date;
|
|
(ii) |
if the Purchase Option Date does not fall on a Payment Date, an amount equal to the Charter-hire covering the period from the Payment Date immediately
preceding such Purchase Option Date until the Purchase Option Date (being the Daily Charter Rate multiplied by the number of days elapsed during such period);
|
|
(iii) |
all amounts (including, without limitation, Charter-hire and any Breakage Costs) due and payable under this Charter and other Transaction Documents less any
Swap Gain; and
|
|
(iv) |
all liabilities, costs and expenses (including, without limitation, legal fees) in relation to transferring title to the Charterers and/or the closing of
registration of the Vessel.
|
39.3 |
In the event the Charterers exercise their option to purchase the Vessel pursuant to Clause 39.2 on a Purchase Option Date other than the Charter Period
Expiry Date, this Charter shall be early terminated on the date on which the protocol of delivery and acceptance is signed and timed in accordance with Clause 39.4.
|
39.4 |
The Owners shall in exchange for payment of the Purchase Option Sum, at the Charterers’ costs and expense, provide the Charterers with:
|
|
(i) |
a legal Bill of Sale in respect of the Vessel transferring to the Charterers the title to the Vessel stating that the Vessel is free from all
mortgages, encumbrances and maritime liens or any other debts whatsoever duly attested and legalised or apostilled, as required by Charterers’ nominated flag state; and
|
|
(ii) |
Certificate or Transcript of Registry issued by the competent authorities on the date of delivery evidencing the Owners’ ownership of the
Vessel and that the Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by such authority to the closing meeting with the original to be sent to the Charterers as soon as possible after delivery of the
Vessel.
|
39.5 |
The Charterers shall, immediately prior to the receipt of the bill of sale, furnish the Owners with a letter of indemnity (in a form satisfactory to the
Owners) whereby the Charterers and the Guarantors shall state that, among other things, the Owners have and will have no interest, concern or connection with the Vessel after the date of such letter and that the Charterers and/or the
Guarantors shall indemnify the
|
39.6 |
The sale of the Vessel in accordance with this Clause 39 (
Charter
Period and Purchase Option
) shall be on an “
as is, where is
“ basis, with the Mortgage (or Mortgages)
on the Vessel created pursuant Clause 44 (
Owners’ Right to Mortgage
) fully discharged, without any warranty or guarantee of
condition, fitness for purpose or similar type of condition warranty and without any recourse to, or representation or warranty from, the Owners. The Charterers hereby acknowledge and agree that the Owners make no condition, term,
representation or warranty, express or implied (and whether statutory or otherwise) 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.
|
39.7 |
All registration, legal or other expenses whatsoever incurred in transferring the title from the Owners to the Charterers (including, without limitation to,
any taxes, notarial, consular and other charges and expenses connected with the purchase and registration under Charterers’ flag shall be for Charterers’ account and/or the closing of the Owners’ register and transferring title to the
Charterers) shall be borne by the Charterers and paid to the Owners on demand.
|
40. |
CHARTER ARRANGEMENT FEE
|
40.1 |
Charter Arrangement Fee
|
40.2 |
Advance Hire
|
|
(a) |
The Charterers shall, on the Delivery Date, pay to the Owners by way of an irrevocable payment an amount equal to twenty nine percent (29%) of
the Purchase Price (the “
Advance Hire
”) as advance hire under this Charter, provided that the obligation of the Charterers to make
payment of the Advance Hire shall be set off against the obligation of the Owners to make payment of the Purchase Price under the MOA such that the Sellers’ Portion (as defined in the MOA) payable by the Owners (as buyers) to the
Charterers (as sellers) under the MOA shall be set-off against an amount equal to the Advance Hire.
|
|
(b) |
All Advance Hire paid pursuant to this Clause 40.2 shall bear no interest and shall be non-refundable.
|
41. |
CHARTERHIRE
|
41.1 |
The Charterers shall, on each Payment Date (in respect of which time shall be of the essence) throughout the Charter Period, pay to the Owners as hire for use
of the Vessel, the Charter-hire due and payable as of each such Payment Date in accordance with the terms of this Charter.
|
41.2 |
The Vessel shall not be deemed off-hire at any time and the Charterers’ obligation to pay all Charter-hire and all 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 (i) to (x) below,
including, without limitation:
|
|
(i) |
any set-off, counterclaim, recoupment, defence or other right which the Charterers may at any time have against the Owners or any other person
for any reason whatsoever;
|
|
(ii) |
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, security interest, 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;
|
|
(iii) |
any change, extension, indulgence or other act or omission in respect of any indebtedness or obligation of the Charterers, or any sale,
exchange, release or surrender of, or other dealing in, any security for any such indebtedness or obligation;
|
|
(iv) |
any incapacity, disability, or defect in powers of the Charterers, or any irregular exercise thereof by, or lack of authority of, any person
purporting to act on behalf of the Charterers;
|
|
(v) |
any damage to or loss (including a Total Loss), destruction, capture, seizure, judicial attachment or arrest, forfeiture or marshal’s or other
sale of the Vessel;
|
|
(vi) |
any libel, attachment, levy, detention, sequestration or taking into custody of the Vessel or any restriction, prevention, interference,
interruption or cessation in the use or possession thereof by the Charterers for any reason whatsoever, or any inability to engage in any particular trade;
|
|
(vii) |
any insolvency, bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceedings by or against
the Charterers;
|
|
(viii) |
any failure or delay on the part of the Owners whether with or without fault on its part, in performing or complying with any of the terms or
covenants hereof;
|
|
(ix) |
any lack of due authorizations or documentation for the Vessel for any particular trade or use, or invalidity, illegality or other defect of
this Charter; or
|
|
(x) |
any circumstances which, but for this provision, might operate to exonerate the Charterers from liability, whether in whole or in part, under
this Charter.
|
42. |
PAYMENTS
|
42.1 |
Notwithstanding anything to the contrary contained in this Charter, all payments by the Charterers hereunder (whether by way of hire or otherwise) shall be
made as follows:
|
|
(a) |
in the case of Charter-hire, not later than the relevant Payment Date;
|
|
(b) |
in Dollars in immediately available funds for same day value to the Owners’ Account; and
|
|
(c) |
if any day for the making of any payment hereunder shall not be a Banking Day, the due date for payment of the same shall be the immediately
preceding Banking Day.
|
42.2 |
All payments by the Charterers 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 Charterers are so required to make any withholding or deduction from any such payment, the sum due from the Charterers in respect of such payment will be
increased to the extent necessary to ensure that, after making such withholding or deduction, the Owners receive a net sum equal to the amount which it would have received had no such withholding or deduction been required to be made.
The Charterers shall promptly deliver to the Owners any receipts, certificates or other proof evidencing the amounts, if any, paid to payable in respect of any such withholding or deduction as aforesaid.
|
42.3 |
In the event of failure by the Charterers 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 them under this Charter, the Charterers shall pay, as liquidated damages and not as penalty, to the Owners on demand default interest on such hire or such other amount from the date of such
failure to the date of actual payment (both before and after any relevant judgment or winding up of the Charterers) at the rate of five per cent (5%) per annum. Any interest payable under this Charter shall accrue from day to day and
shall be calculated on the actual number of days elapsed and a three hundred and sixty (360) day year and shall be compounded at such intervals as the Owners shall determine and shall be payable on demand.
|
42.4 |
Time of payment of Charter-hire and all other sums payable under this Charter shall be of the essence of this Charter.
|
43. |
INDEMNITY
|
43.1 |
To the extent such liability is not caused by a default of the Owners hereunder, the Charterers agree at all times whether before, during or after the Charter
Period, to indemnify and keep the Owners indemnified, hold harmless against:
|
|
(a) |
all reasonable, properly incurred and documented costs and expenses incurred by the Owners as a result of its entering into and/or performance
of this Charter and other Transaction Documents, including without limitation the costs, expenses, fees, charges for legal services, evaluation, consultancy, survey, registration of the Vessel, 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 whatsoever incurred in connection with this Charter and any Transaction Document or the Vessel, and any costs, charges,
or expenses which the Charterers have agreed to pay under this Charter and which are claimed or assessed against or paid by the Owners;
|
|
(c) |
all Losses suffered or incurred by the Owners and arising 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 Charterers) including any and all claims in tort or in contract by any sub-charterer of the Vessel from the
Charterers or by the holders of any bill of lading issued by the Charterers or the sub-charterer;
|
|
(d) |
all Losses suffered or incurred by the Owners which result 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;
|
|
(e) |
all Losses suffered or incurred by the Owners in preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution,
impounding, forfeiture or detention of the Vessel, or in securing the release of the Vessel therefrom;
|
|
(f) |
all Losses suffered or incurred by the Owners with respect to or as a direct result of the presence, escape, seepage, spillage, leaking,
discharge or migration from the Ship of oil or any other hazardous substance, including without limitation, any claims asserted or arising under the US Oil Pollution Act of 1990 (as same may be amended and/or re-enacted from time to
time hereafter) or similar legislation, regardless of whether or not caused by or within the control of the Charterers;
|
|
(g) |
following a Termination Event, any Losses incurred or suffered by the
|
|
(h) |
any Losses suffered or incurred by the Owners which result from any breach of the Manager’s Undertaking by the Charterers or the Manager, or
replacing the Manager and obtaining a Manager’s Undertaking from the new manager; and
|
|
(i) |
any Losses incurred or suffered by the Owners 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.
|
43.2 |
If, under any applicable law, whether as a result of judgment against the Charterers or the liquidation of the Charterers or for any other reason, any payment
to be made by the Charterers under or in connection with this Charter is made or is recovered in a currency other than the currency in which it is payable pursuant to this Charter (the “
currency of obligation
”) 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 Charterers shall as a separate and independent obligation, fully indemnify the Owners against the amount of the shortfall; and for the
purposes of this provision “rate of exchange” means the best rate at which the Owners is able on the relevant date to purchase the currency of obligation with the other currency.
|
43.3 |
The indemnities contained in this Clause 43, 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 Charterers or the Owners of this Charter.
|
43.4 |
All moneys payable by the Charterers under this Clause 43 shall be paid on demand of the Owners.
|
44. |
OWNERS’ RIGHT TO MORTGAGE
|
44.1 |
The Charterers agree that the Owners shall be entitled at any time after the date of this Charter, to grant any bank or financial institution (the “
Mortgagee
”) a first ranking mortgage on the Vessel, assignment(s) of the Owners’ earnings, the Insurances and requisition compensation
thereof, and assignment(s) of any and all its rights, title, interest 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 arranged
by the Owners to finance or re-finance the purchase of the Vessel (collectively, the “
Mortgage
”).
|
44.2 |
The Charterers hereby agree and undertake to enter into any such documents as the Mortgagee shall reasonably require in relation to the aforementioned finance
or re-finance of the Vessel including without limitation assignment of insurance and requisition compensations by the Charterers, the assignment of this Charter and the other relevant Transaction Documents, and to procure that the
Manager to issue the Manager’s Undertakings provided.
|
44.3 |
The Charterers agree with the Owners to acknowledge notice of any assignment of
|
44.4 |
All costs and expenses incurred by the Owners in connection with Mortgage shall be for the account of the Owners.
|
45. |
OWNERS’ RIGHT TO SALE
|
45.1 |
During the Charter Period, the Owners shall be entitled to transfer the title in the Vessel to any of its Affiliates; however, any transfer of title in the
Vessel to a party other than an Affiliate of the Owners shall, in the absence of a Termination Event, require the Charterers’ prior approval which shall not be unreasonably withheld or delayed.
|
45.2 |
The Charterers hereby agree and undertake that at any time upon the request of the Owners they will promptly and duly execute, sign, perfect, do and (if
required) register, and procure any Security Party and other persons to execute and do, such assurances, acts, deeds and things and (if required) register every such further assurance, document, act or thing as in the sole opinion of
the Owners may be necessary for the purpose of more effectually completing or perfecting the transfer of the Vessel (with the benefit and burden of this Charter) pursuant to Clause 45.1. All costs and expenses incurred by the Owners
pursuant to this Clause 45.2 shall be for the account of the Owners.
|
46. |
REPRESENTATIONS AND WARRANTIES
|
46.1 |
The Charterers acknowledge that the Owners have entered into this Charter in full reliance on representations by the Charterers in the following terms, and
the Charterers now warrant to the Owners that the following statements are true and accurate at the date hereof, on the Delivery Date and throughout the continuation of this Charter:
|
|
(a) |
each of the Security Parties is duly incorporated and validly existing under the laws of its respective jurisdiction of incorporation;
|
|
(b) |
each of the Security Parties 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 Documents to which it is respectively a party, and all necessary corporate, shareholder’s and other actions have been taken to authorise the execution, delivery and performance
of such documents;
|
|
(c) |
each Transaction Document to which any Security Party is a party constitutes such Security Party’s valid and legally binding and enforceable
obligations ranking at least
pani passu
with all other of its unsecured obligations and liabilities (actual or contingent) other
than any such obligations and liabilities preferred by law;
|
|
(d) |
the entry into and performance by each Security Party of the Transaction Document and Project Document to which it 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 of official authority or body;
|
|
(ii) |
its constitutional documents; or
|
|
(iii) |
any agreement, contract or other undertaking to which it is a party or which is binding on it or any of its assets;
|
|
(e) |
all consents, licences, approvals and authorisations required in connection with the entry into, performance, validity and enforceability of
the Transaction Document to which each Security Party is a party have been obtained and are, or will prior to the Delivery Date be, in full force and effect;
|
|
(f) |
any information, exhibits and reports furnished by the Charterers to the Owners in connection with the matters contemplated by this Charter or
in connection with the negotiation and preparation of the Security Documents are true and accurate in all material respects and not misleading, do not omit material facts and there are no other facts the omission of which would make any
fact or statement therein misleading;
|
|
(g) |
no litigation, arbitration or administrative proceeding is taking place against any Security Party or against any Security Party’s assets
which is likely to be adversely determined and, if adversely determined, would have a Material Adverse Effect on its ability to perform its obligations under any Transaction Document to which any Security Party is a party;
|
|
(h) |
the Charterers have not undertaken any business other than in the ordinary course of its business of owning, operating and chartering the
Vessel or as otherwise disclosed to the Owners on or prior to the date of this Charter;
|
|
(i) |
there will not be any agreement or arrangement whereby the Earnings may be shared howsoever with any other person;
|
|
(j) |
none of the Earnings, Insurances, compensation for Requisition nor any other properties or rights which are, or are to be, the subject of any
of the Security Documents nor any part thereof will be subject to any Encumbrances except under the Security Documents;
|
|
(k) |
at the time of coming into force of this Charter, the Charterers have in place, or undertakes to put in place soon thereafter, a sanctions
compliance programme, adapted to its particular circumstances;
|
|
(l) |
no Security Party is a Restricted Party nor has any Security Party or any of
|
|
(m) |
the Vessel is not chartered, leased or otherwise provided directly or indirectly to any Restricted Party;
|
|
(n) |
the performance of the obligations of the Security Parties under the Transaction Documents will not involve any breach by any of them of any
law or regulatory measure relating to “money laundering” as defined in Article 1 of the Directive (2005/60/EC) of the European Parliament and of the Council of the European Communities;
|
|
(o) |
the copies of the Project Documents provided by the Charterers to the Owners in accordance with Clause 34 (
Conditions precedent
) are true and accurate copies of the originals and represent the full agreement between the parties to those Project Documents in relation
to the subject matter of those Project Documents and there are no commissions, rebates, premiums or other payments due or to become due in connection with the subject matter of those Project Documents other than in the ordinary course
of business or as disclosed to, and approved in writing by, the Owners;
|
|
(p) |
the Charterers make the representations and warranties set out in this Clause to the Owners on the date of this Charter and except as may have
already been disclosed by the Charterers in writing to, and acknowledged by, the Owners:
|
|
(i) |
the Charterers and the Operator and their respective Environmental Affiliates have each complied with the provisions of all Environmental Laws in relation to
the Vessel;
|
|
(ii) |
the Charterers 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;
|
|
(iii) |
no Environmental Claim has been made or threatened or pending against the Charterers, the Operator or, to the best of their knowledge and belief (having made
due enquiry), any of their respective Environmental Affiliates; and
|
|
(iv) |
there has been no Environmental Incident;
|
|
(q) |
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;
|
|
(r) |
none of the Security Parties has breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect;
|
|
(s) |
each of the Security Parties is the legal and beneficial owner of all assets and other property which it purports to charge, mortgage, pledge,
assign or
|
|
(t) |
no Security Party is materially overdue in the filing of any Tax returns and no Security Party is overdue in the payment of any amount in
respect of Tax, save in the case of Taxes which are being contested on bona fide grounds;
|
|
(u) |
no claims or investigations are being made or conducted against any Security Party with respect to Taxes is reasonably likely to arise; and
|
|
(v) |
they and their Affiliates and their respective officers, directors, employees, consultants, agents and/or intermediaries have complied with,
and shall comply with, all applicable Business Ethics Laws in connection with this Charter and the other Transaction Documents.
|
46.2 |
The representations and warranties contained in Clause 46.1 hereof shall be deemed to be repeated by the Charterers on each day from the date of this Charter
as if made with reference to the facts and circumstances existing on such date, and the rights of the Owners in respect thereof shall survive the delivery or re-delivery of the Vessel hereunder.
|
47. |
UNDERTAKINGS
|
47.1 |
The Charterers undertake and agree that throughout the continuation of this Charter, the Charterers shall:
|
47.1.1 |
provide to the Owners:
|
|
(a) |
in respect of the Vessel, two valuation reports, one to be provided by an Approved Broker appointed by the Owners and the other to be provided
by an Approved Broker appointed by the Charterers, each at the Charterers’ cost:
|
|
(i) |
once per calendar year in the absence of a Termination Event, provided that in the event that the discrepancy of the market value of the Vessel between such
valuation reports exceeds twenty per cent (20%), the Charterers shall, at the Charterers’ costs, provide one further valuation report prepared by an Approved Broker appointed by the Owners, and the Market Value of the Vessel shall be
the arithmetic mean of the values of the Vessel under all three (3) Valuation Reports obtained pursuant to this Clause 47.1.1(a)(i); and
|
|
(ii) |
at any time upon the occurrence of a Termination Event;
|
|
(b) |
promptly upon becoming aware of them, relevant details of any litigation, arbitration or administrative proceedings which are current or, to
its knowledge, threatened or pending against any Security Party , which are likely, in the reasonable opinion of the Owners, to have a Material Adverse Effect on the ability of any Security Party in performing its obligations under the
Transaction Documents;
|
|
(c) |
the unaudited semi-annual financial statements of the Charterers and the
|
|
(d) |
the annual financial statement of the Charterers (as referred to in Guarantor A’s audited consolidated annual financial statements) and the
audited annual financial statements of the Guarantors (each prepared in accordance with GAAP and, in the case of Guarantor A, on a consolidated basis) as soon as available and in no event later than one hundred and twenty (120) days
after the end of its financial year;
|
|
(e) |
promptly upon request by the Owners, copies of all class records, class certificates and survey reports and copies of all management reports;
|
|
(f) |
promptly upon request by the Owners, all such information as it may from time to time request 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;
|
|
(g) |
promptly upon request by the Owners, a written report on the condition of the Vessel prepared by or on behalf of the Charterers in a form
acceptable to the Owners;
|
|
(h) |
promptly upon request by the Owners, such further information in the possession or control of any Security Party with respect to the financial
condition and operations of any Security Party; and
|
|
(i) |
upon the request of the Owners:
|
|
(i) |
evidence that the Charterers are not in breach of any Sanctions; and
|
|
(ii) |
all relevant documentation related to the Vessel and the transported goods which the Owners are required to disclose to any Sanctions Authority.
|
47.1.2 |
at all times, in respect of the Vessel:
|
|
(a) |
subject Clause 37 (
Flag and Class
),
register (and maintain the registration of) the Vessel under the flag of the Flag State or such other flag agreed by the Owners on the Delivery Date with the name of the Owners as the owner;
|
|
(b) |
ensure that the Vessel is:
|
|
(i) |
classed and maintained in the highest class (free of outstanding recommendations or conditions of class) with the Classification Society; and
|
|
(ii) |
complies with the rules and regulations of the Classification Society;
|
|
(c) |
ensure that the Vessel is managed by the Manager on such terms as approved by the Owners in writing in advance;
|
|
(d) |
notify the Owners of any non-compliance of the Manager’s Undertaking by the Manager and procure the due performance of the Manager’s
obligations under the Manager’s Undertaking, provided if:
|
|
(i) |
an Approved Manager breaches any provision of its Manager’s Undertaking; and
|
|
(ii) |
the Charterers fail to, within a period of 15 days of them becoming aware of the occurrence of such circumstance or breach of or the receipt of a written
notification from the Owners requesting it to remedy such circumstance or breach,
|
|
(e) |
ensure material 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 Manager, the crews, employees, agents or representatives of the Charterers at all times comply with such Environmental Laws and other applicable laws;
|
|
(f) |
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 Manager and that the Manager 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;
|
|
(g) |
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)); and
|
|
(h) |
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 Owners;
|
47.1.3 |
obtain and promptly renew from time to time and, whenever so required, promptly furnish certified copies to the Owners of all such authorisations, approvals,
consents and licences as may be required under any applicable law or regulation to enable the Charterers to perform its obligations under this Charter or the Transaction Documents to which it is a party or required for the validity or
|
47.1.4 |
notify the Owners in writing of:
|
|
(a) |
any accident to the Vessel, immediately upon but in any case within 24 hours of the occurrence of the same which is or is likely to become a
Major Casualty;
|
|
(b) |
any occurrence resulting in the Vessel becoming or being likely to become a Total Loss, immediately upon but in any case within 24 hours of
the occurrence;
|
|
(c) |
any requirement or recommendation made by any insurer or Classification Society, or by any competent authority, which is not complied with
within any time limit imposed by such insurer, Classification Society or authority;
|
|
(d) |
any arrest of the Vessel or the exercise or purported exercise of any lien on the Vessel or any Requisition of the Vessel , immediately upon
but in any case within 24 hours of the occurrence;
|
|
(e) |
any damage to or alteration to the Vessel in excess of the amount of US$300,000 (Dollars Three Hundred Thousand); and
|
|
(f) |
any breach by any party of any Project Document;
|
47.1.5 |
notify the Owners 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;
|
47.1.6 |
following an inspection of the Vessel by the Owners or its representatives pursuant to the terms and conditions of this Charter, comply with any reasonable
requests from the Owners for repairs or works to the Vessel if required to ensure that the Vessel is maintained in the class and condition required by this Charter and if the Charterers dispute the need for any such repairs or works the
matter shall be referred to the Classification Society whose decision on such matter shall be binding on the Owners and the Charterers;
|
47.1.7 |
comply with:
|
|
(a) |
any existing law or regulation of any governmental of official authority or body which is applicable to the Charterers;
|
|
(b) |
the constitutional documents of the Charterers;
|
|
(c) |
any agreement, contract or other undertaking to which the Charterers are a party or which is binding on the Charterers or any of their assets;
|
|
(d) |
and ensure that their Affiliates and their officers, directors, employees, consultants, agents and/or intermediaries comply with all
applicable Business Ethics Laws.
|
47.1.8 |
shall not, and shall not permit or authorise any other person to, directly utilise or
|
|
(a) |
involving or for the benefit of any Restricted Party; and
|
|
(b) |
in any other manner that would reasonably be expected to result in any Obligor, the Owners, any Manager or any Finance Party (if applicable)
being in breach of any Sanctions or become a Restricted Party.
|
47.1.9 |
promptly notify the Owners of:
|
|
(a) |
any Environmental Claim; and
|
|
(b) |
details of any material non-compliance by it with any applicable Environmental Law or applicable Environmental Approvals or any suspension,
revocation or modification of any Environmental Approvals and shall set out the action it intends to take with respect to those matters;
|
47.1.10 |
throughout the Security Period, no Change of Control in respect of the Security Parties;
|
47.1.11 |
assume (and shall enter into such documents and contracts to assume) such obligations, and grant rights, to the Owners which shall corresponding to such
obligations and rights reasonably assumed and granted by the Owners in favour of the Lenders under the Finance Documents provided that this shall be without prejudice to the Charterers rights and obligations under this Charter; and
|
47.1.12 |
all the Earnings are at all times paid to the Charterer Account and, without prejudice to the foregoing, there shall be paid into the Charterer Account, on or
before the Delivery Date, the Minimum Balance and the Charterers shall, from the date of such payment until the last day of the Security Period, ensure that the balance standing to the credit of the Charterer Account shall not fall
below an amount equal to the Minimum Balance.
|
47.2 |
The Charterers undertake and agree that throughout the Security Period it shall not, without prior written approval by the Owners:-
|
|
(a) |
cancel or terminate the Ship Management Agreement;
|
|
(b) |
amend or vary the terms of, or permit or suffer any amendment or variation of the terms of the Ship Management Agreement without providing a
copy of the amended Ship Management Agreement to the Owners provided that if the only amendment to the Ship Management Agreement is in respect of the management fee thereunder, the Charterers shall only be required to notify the Owners
in writing promptly after such amendment;
|
|
(c) |
sub-let the Vessel on demise charter for any period;
|
|
(d) |
incur or allow to remain outstanding any guarantee in respect of any obligation of any person except any guarantee entered into with the prior
written consent of the Owners or in accordance with the Security Documents or for the purpose of securing the release of the Vessel from any potential
|
|
(e) |
create or permit to subsist any Security Interest over the Vessel or any of its assets;
|
|
(f) |
engage in any business other than the disponent ownership, management, control and operation of the Vessel without the prior written consent
of the Owners.
|
|
(g) |
make any substantial change to the general nature of its business from that carried on by it at the date of this Charter;
|
|
(h) |
enter into any transactions other than on arms’ length commercial terms.
|
|
(i) |
incur any borrowings from any person or otherwise create, incur, assume, suffer to exist or in any manner become or remain liable for any
other Financial Indebtedness except in the ordinary course of business as disponent owner of the vessel and/or charterer;
|
|
(j) |
incur any indebtedness other than that incurred (i) to the Owners under this Charter and the Security Documents and (ii) in the Charterers’
ordinary course of business on arm’s length basis but in any event not overdue by 30 days;
|
|
(k) |
enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease,
transfer or otherwise dispose of any of its assets (save and except as provided under the terms of this Charter and the Security Documents);
|
|
(l) |
declare or pay any dividend or make any other capital or income distribution to its shareholders during the Security Period if a Termination
Event has occurred and is continuing;
|
|
(m) |
enter into any amalgamation, demerger, merger or corporate reconstruction (other than any amalgamation, demerger, merger or corporate
reconstruction which would not have a Material Adverse Effect); or
|
|
(n) |
permit any change in the composition of its board of directors from that existing on the date of this Charter.
|
47.3 |
The Charterers undertake and agree that, throughout the Security Period, the ratio (expressed as a percentage) of an amount equal to the aggregate of the then
applicable Owners’ Costs and the Excess Amount (if any) to the Market Value as determined by the latest valuation reports provided in accordance with Clause 47.1.1(a) (the “
LTV Ratio
”) shall equal to eighty per cent. (80%). If the LTV Ratio, at any relevant time, is above eighty per cent. (80%) (the “
LTV Breach
”), the Charterers shall, on the Payment Date immediately succeeding the date of the LTV Breach, prepay an amount of the shortfall such that the LTV Ratio will be equal to eighty per
cent. (80%) subsequent to such prepayment.
|
|
(a) |
the Owners’ Costs;
|
|
(b) |
the Daily Charter Rate;
|
|
(c) |
if such prepayment is made prior to the 3
rd
Anniversary, the
Early Termination Amount relating to each Early Termination Date; and
|
|
(d) |
the Repurchase Price relating to each Purchase Option Date (other than the Repurchase Price relating to the Charter Period Expiry Date),
|
47.4 |
The Charterers hereby expressly acknowledge that each of:
|
|
(a) |
the Owners’ Costs Schedule in its form and content as attached hereto is based on the assumption that the Delivery Date is 15 December 2018;
and
|
|
(b) |
the Adjustment Schedule in its form and content as attached hereto is based on the assumptions that:
|
|
(i) |
the Delivery Date is 15 December 2018;
|
|
(ii) |
a prepayment made in accordance with Clause 47.3 is:
|
|
A. |
made on the 24
th
Payment Date; and
|
|
B. |
in the amount of USD2,000,000 (United States Dollars Two Million); and
|
|
(iii) |
the 3
rd
Anniversary falls on the 36
th
Payment Date, the 4th Anniversary falls on the 48
th
Payment Date, the 5
th
Anniversary falls on the 60
th
Payment Date and the 6
th
Anniversary falls on the 72
nd
Payment Date,
|
47.5 |
Any amended Adjustment Schedule or Owners’ Cost Schedule prepared and delivered to the Charterers pursuant to Clauses 47.3 or 47.4 respectively shall, from
the date the same is delivered to the Charterers, be deemed to be incorporated into this Charter and, for the purposes of this Charter, shall thereafter:
|
|
(a) |
constitute the current Adjustment Schedule or Owners’ Costs Schedule, as applicable; and
|
|
(b) |
be conclusive evidence of the Owners’ Costs and, in the case of an amended Adjustment Schedule delivered by the Owners in accordance with
Clause 47.4, the Daily Charter Rate, the Repurchase Price in relation to each Purchase Option Date and, if applicable, the Early Termination Price in relation to each Early Termination Date, each applicable under this Charter.
|
47.6 |
If, as a result of a prepayment made in accordance with Clause 47.3, the Owners’ Costs falls below US$17,500,000 (United States Dollars Seventeen Million and
Five Hundred Thousand) (the “
Balloon
”), an amount equal to the difference between the Balloon and the Owners’ Costs following such
prepayment (the “
Excess Amount
”) shall be retained by the Owners and applied in accordance with the terms of this Charter on the
Purchase Option Date or the Termination Date (as applicable). In the event that, on the Charter Period Expiry Date:
|
|
(a) |
no Termination Event has occurred and is continuing, and
|
|
(b) |
the Charterers have not exercised their option to purchase the Vessel in accordance with Clause 39.2,
|
47.7 |
Any Excess Amount accrued in accordance with Clause 47.6 may be refunded to the Charterers if the Market Value as determined by the valuation reports provided
immediately following the LTV Breach in accordance with Clause 47.1.1(a) is lower than eighty per cent. (80%), provided that after such refund, the LTV Ratio is equal to eighty per cent. (80%).
|
47.8 |
In the event that there any Excess Amount accrued in accordance with Clause 47.6 on the Purchase Option Date, the Termination Date or the Total Loss Payment
Date (as applicable), the Owners shall set-off the applicable Purchase Option Sum or the applicable Termination Sum payable by the Charterers to the Owners against an amount equal to such Excess Amount.
|
47.9 |
The Charterers agree and acknowledge that any Excess Amount accrued in accordance with Clause 47.6 shall bear no interest.
|
48. |
INSURANCES, TOTAL LOSS
|
48.1 |
The Charterers shall bear all risks whatsoever and howsoever arising from whether of use, navigation, operation, possession and/or maintenance of the Vessel
throughout the duration of the Charter.
|
48.2 |
Insurances
|
|
(a) |
to insure and keep the Vessel insured free of cost and expense to the Owners and in the joint names of the Owners and the Charterers or
otherwise as the Owners and the Charterers may agree pursuant to Box 29 and Box 31 (if any) of Part I and Clause 13 of Part II of this Charter and this Clause 48:
|
|
(i) |
against fire and usual marine risks (including hull and machinery, hull interest, freight interest, disbursement, demurrage and/or increased value, other
Total Loss interest and excess risks);
|
|
(ii) |
against war risks (including terrorism cover, on hull and machinery basis and on war protection and indemnity risks, terrorism, piracy and strike risks);
|
|
(iii) |
against full protection and indemnity risks, including, amongst other things, (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 (currently at US$1,000,000,000 Dollars One Billion);
|
|
(iv) |
against loss of hire or earning (only for piracy and war risks);
|
|
(v) |
against such other risks of whatsoever nature and howsoever arising as may be required by the Owners which are customary to transactions of this nature;
|
|
(vi) |
in Dollars;
|
|
(vii) |
on terms consistent with prevailing international market practice from time to time be approved by the Owners;
|
|
(viii) |
in case of the fire and usual marine risks in (i) above and war risks in (ii) above, in an amount no less than 120% of the then applicable Early Termination
Amount (if the relevant time falls prior to the 3rd Anniversary) or the Repurchase Price (if the relevant time falls on or after the 3
rd
Anniversary);
|
|
(ix) |
in case of loss of earnings risks (only for piracy and war risks) in such amounts as from time to time required by the Owners;
|
|
(x) |
in the case of pollution liability risk for protection and indemnity risks, for an aggregate amount equal to the highest level of cover from time
|
|
(xi) |
with international reputable companies and/or underwriters or, in the case of protection and indemnity risks in such protection and indemnity association
approved by the Owners, such approval not to be unreasonably withheld or delayed. An insurance company with a Standard & Poor’s rating of BBB+ or above and a protection and indemnity association which is a member of the
International Group of Protection and Indemnity Association shall be deemed approved for the purpose of this clause.
|
|
(b) |
if and when so required by the Mortgagee, the Charterers shall pay the Mortgagee direct or reimburse the Owners (in case the Owners pay) the
cost (as conclusively certified by the Mortgagee) of (A) a mortgagee’s interest insurance on the Vessel in an amount not less than the Minimum Insured Value 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 the Minimum Insured Value 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; and if and when so required by the Owners, the Charterers shall pay the Owners the cost (as conclusively certified by the Owners) of innocent shipowner’s Interest Insurance on the
Vessel in an amount not less than the Minimum Insured Value or such lesser amount as may be approved by the Owners; and (B) an innocent shipowner’s interest insurance - additional perils (pollution) on the Vessel in an amount not less
than the Minimum Insured Value or such lesser amount as may be approved by the Owners, and in each case, upon such terms as shall from time to time be approved in writing by the Owners;
|
|
(c) |
to effect the Insurances aforesaid in Dollars and through the Approved Insurers;
|
|
(d) |
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 Owners 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.
|
|
(e) |
to punctually to pay all premiums, calls, contributions or other sums payable in respect of all such Insurances and to produce copies of all
relevant receipts or other evidence of payment;
|
|
(f) |
at least seven (7) days before the relevant policies, contracts or entries expire,
|
|
(i) |
to notify the Owners of the names of the brokers proposed to be
|
|
(ii) |
to procure that that the Approved Insurers will at least fourteen (14) days before such expiry, and the approved war risks and protection and indemnity
associations will at least seven (7) days before such expiry confirm in writing to the Owners that they have been instructed to renew the relevant Insurances and such renewals are in the process of being effected in accordance with the
instructions so given and to provide the Owners with details of the instructions as the Owners may require (except for the pricing information);
|
|
(g) |
to arrange for the execution of such guarantees or indemnities as may from time to time be required by any protection and indemnity or war
risks association;
|
|
(h) |
to deposit with the Approved Insurers (or procure the deposit of) all slips, cover notes, policies, certificates of entry or other instruments
of insurance from time to time issued in connection with the Insurances as are effected through the Approved Insurers;
|
|
(i) |
to procure that the interest of the Owners shall be endorsed and, where the Insurances have been assigned to the Owners, by means of a notice
of assignment the Owners shall be furnished with the originals or certified true copies thereof and to procure that the Approved Insurer shall issue to the Owners a letter or letters of undertaking in such form as shall from time to
time be reasonably required by the Owners (in line with market standard);
|
|
(j) |
to procure that any protection and indemnity and/or war risks associations (if applicable) in which the Vessel is for the time being entered
shall endorse the relevant Loss Payable Clause (taking into account the associations’ standard wording) on the relevant certificate of entry or policy and shall furnish the Owners with a certified true copy of such certificate of entry
and a letter or letters of undertaking in such form as may from time to time be reasonably required by the Owners in accordance with the associations’ standard form and wording;
|
|
(k) |
if so requested by the Owners, but at the cost of the Charterers, to furnish the Owners from time to time with a detailed report signed by an
independent firm of marine insurance brokers or an independent firm of international reputable insurance consultant appointed by the Charterers dealing with the Insurances maintained on the Vessel and stating the opinion of such firm as
to the adequacy thereof;
|
|
(l) |
to do all things necessary and provide all documents, evidence and information to enable the Owners to collect or recover any moneys which
shall at any time become due to them in respect of the Insurances;
|
|
(m) |
not to employ the Vessel or suffer the Vessel to be employed otherwise than in conformity with the terms of the instruments of insurance
aforesaid (including any warranties express or implied therein) without first obtaining
|
|
(n) |
to apply all sums receivable under the Insurances which are paid to the Charterers in accordance with the Loss Payable Clauses in repairing
all damage and/or in discharging the liability in respect whereof the insurance moneys shall have been received;
|
|
(o) |
to ensure that if the Vessel shall at any time enter the waters under the jurisdiction of the United States of America and/or the Exclusive
Economic Zone (as defined in the Oil Pollution Act):
|
|
(i) |
the certificate of entry for the Vessel issued by the protection and indemnity association with which it is entered is endorsed with the U.S. Oil Pollution
Clause 20/2/91 (as amended or replaced from time to time) and to procure for the Owners sufficient documentary evidence that the Charterers has provided all declarations and satisfied all other requirements of the association and that
the U.S. Trading Exclusion Clause (as defined in the rules and policies of such protection and indemnity association) has been deleted from the cover;
|
|
(ii) |
make all such quarterly or other voyage declarations as may from time to time be required by the protection and indemnity risks association in order to
maintain cover for trading to the United States of America and Exclusive Economic Zone and promptly deliver to the Owners copies of all such declarations;
|
|
(p) |
to produce to the Owners upon demand copies (certified by the relevant brokers as being true copies) of all policies, certificates of
insurance or entry, cover notes and binders relating to the Insurances and to furnish the Owners with any other evidence of the existence of the Insurances as the Mortgagee may request. The Charterers shall procure that the Approved
Insurers give to the Owners such information as to the Insurances taken out or being or to be taken out in compliance with the Charterers’ obligations under the foregoing provisions or as to any other matter which may be relevant to the
Insurances as the Owners may request (except for the pricing information of the Insurances);
|
|
(q) |
the Charterers 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, unless otherwise specifically permitted under the insurance policies;
|
|
(r) |
the Charterers shall not make any alteration to any of the insurances referred to in this Clause without prior written approval by the Owners
(which shall not be unreasonably delayed or withheld) 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;
|
|
(s) |
should any change be permitted or occur without the consent of the Owners, then, without prejudice to the aforesaid obligation of the
Charterers or to the rights of the Owners on a Termination Event or to any other provision in this
|
|
(t) |
the Charterers not to settle, compromise or abandon any claim under any Insurance for Total Loss or for a Major Casualty;
|
|
(u) |
In the event that any act or negligence of the Charterers (and/or the Manager or any sub-charterer in any level) shall vitiate, impair or void
any of the Insurances herein provided, the Charterers shall take all rectification measures and pay to the Owners all losses and indemnify the Owners against all claims and demands which would otherwise have been covered by such
Insurances,
|
48.3 |
Total Loss
|
|
(a) |
the Owners’ obligation to charter the Vessel shall be immediately be terminated;
|
|
(b) |
the Charterers shall within sixty (60) days from the Total Loss Date and no later than the actual date when the insurance proceeds are
received from the relevant insurer as a result of such Total Loss, whichever occurs earlier (the “
Total Loss Payment Date
”), pay to
the Owners the Termination Sum; and
|
|
(c) |
the Charterers shall continue to pay the Charter-hire until the Total Loss Payment Date.
|
|
(i) |
any actual costs and expenses incurred by the Owners to apply for and procure the insurance proceeds together with accrued thereon pursuant to
42.3 hereof from the date shall be paid and/or distributed to the Owners, unless having indemnified to the Owners by the Charterers before the distribution;
|
|
(ii) |
the amount equal to the outstanding Termination Sum together with interest accrued thereon pursuant to 42.3 hereof from the due date shall be
paid/distributed to the Owners, unless having paid to the Owners by the Charterers before the distribution; and
|
|
(iii) |
lastly, the remaining insurance proceeds after deducting and distributing the sums referred to in (i) and (ii) above to the Owners, if any,
shall be paid/distributed to the Charterers without interest.
|
49. |
TERMINATION EVENTS
|
49.1 |
Each of the following events shall be a “
Termination Event
”
for the purposes of this Charter:
|
(a) |
a Security Party fails to pay any amount due from it under any Transaction Document to which it is a party unless its failure to pay is caused by an
administrative or technical error and payment is made within five (5) Business Days of its due date; or
|
(b) |
any Security Party fails to observe or perform any of its obligations (other than (a) above and (z) below) under this Charter and/or any of the Transaction
Documents to which it is a party provided that no Termination Event shall occur if the failure or breach can be remedied and is remedied within twenty (20) days of the Owners giving notice to the relevant Security Party;
|
(c) |
(i) the Charterers fail at any time to effect or maintain any Insurances, or any insurer shall avoid or cancel any such Insurances (other than by reason of
any act or omission of the Owners), or the Charterers commit any breach of or make any misrepresentation in respect of any such Insurances, or (ii) any of the said Insurances cease for any reason whatsoever to be in full force and
effect, and in each case, such failure is not remedied within fourteen (14) days; or
|
(d) |
any representation or warranty of any Security Party in connection with this Charter or any Transaction Document or in any document or certificate furnished
to the Owners in connection herewith or therewith is or was untrue, inaccurate or misleading in any material respect, when made or deemed made; or
|
(e) |
the Charterers fail to observe or perform any of their obligations under this Charter and/or any Transaction Document, and such failure to observe or perform
any such obligation is either not remediable or remediable but not fully remedied within twenty (20) days after such breach; or
|
(f) |
any Security Interest created by a Security Document have been or becomes invalid or unenforceable or such Security Interest ranked after, or loses its
priority to, any other Security Interest other than any Security Interest under the Security Documents; or
|
(g) |
it becomes impossible or unlawful for any Security Party to perform or fulfil any of its obligations under this Charter or any other Transaction Document to
which it is party; or
|
(h) |
the occurrence of any event or circumstances which, pursuant to mandatory law, entitles or requires the termination of any Transaction Document; or
|
(i) |
anything is done or omitted to be done by the Charterers or the Manager which may imperil the registration of the Vessel; or
|
(j) |
any declared default arises in respect of any Financial Indebtedness entered into or assumed by the Charterers or a Guarantor; or
|
(k) |
any Security Party does or causes or permits to be done any act or thing evidencing an intention to repudiate this Charter or any Transaction Document; or
|
(l) |
there is a Change of Control; or
|
(m) |
any Security Party ceases to be a company resident in the jurisdiction of its incorporation and/or duly registered in good-standing; or
|
(n) |
any Security Party ceases, or threatens to cease, to carry on all or a substantial part of its business or disposes or threatens to dispose (other than for
full arm’s length consideration) of the whole or a material part of its property, assets or undertaking; or
|
(o) |
an encumbrancer takes possession of, or distress or execution is levied upon, the whole, or a material part of the property, assets or undertaking of the
Charterers and the Charterers fail to release the same within fifteen (15) days (or a longer period as agreed between the Owners and the Charterers) from the date of the possession, distress or execution; or
|
(p) |
a petition is 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
|
(q) |
any Security Party stops payment generally or cease to carry on or suspends payment of, or is unable to or admits inability to pay, all or a substantial part
of its debts as they fall due or makes any special arrangement or composition with its creditors generally or shall otherwise become or be adjudicated insolvent; or
|
(r) |
any Security Party convenes or gives notice to convene a meeting of all or any class or group of its creditors with a view to proposing or making, or proposes
or makes, any arrangement or composition with or assignment for the benefit of all or any class or group of its creditors or declares, or applies to any court or other tribunal for, a moratorium or suspension of payments with respect to
all or a substantial part of its debts or liabilities
|
(s) |
any formal declaration of bankruptcy or any formal statement to the effect that any Security Party is insolvent is made by such Security Party or, in any
proceedings, by a lawyer or auditors who are acting on behalf of the Charterers as having been duly authorised by such Security Party to do so; or
|
(t) |
any security Party applies to any court or other tribunal for, a moratorium or suspension of payments with respect to all or a substantial part of its debts
or liabilities; or
|
(u) |
a liquidator, receiver, administrative receiver or similar officer is appointed over the whole or any material part of the assets, rights or revenues of any
Security Party or, if the whole or a substantial part of the assets of any Security Party shall be seized or sequestrated by any governmental or other public authority or, if any Security Party shall be restrained from using the whole
or a substantial part of its assets in its business; or
|
(v) |
the Vessel is arrested or detained and is not released within thirty (30) days after such arrest or detention (or such longer period as the Owners shall agree
in the light of all the circumstances); or
|
(w) |
any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Charterers are not discharged within fifteen (15) days;
or
|
(x) |
any consent, authorisation, licence or approval necessary for this Charter or any Security Document to be or remain the valid and legally binding obligations
of the Charterers, or to enable the Security Party to perform its obligations hereunder or thereunder, shall be materially adversely modified or is not granted or is revoked, suspended, withdrawn or terminated or expires and is not
renewed; or
|
(y) |
any event or series of events occurs which, in the reasonable opinion of the Owners, may have a Material Adverse Effect on the ability of any Security Party
to comply
|
(z) |
any Security Party is involved in:
|
|
(i) |
any incident which gives rise to any Environmental Claim and such incident will result in a Material Adverse Effect; and
|
|
(ii) |
any Environmental Claim which, if adversely determined, would reasonably be expected to result in a Material Adverse Effect (except for any
Environment Claim which is frivolous or vexatious and/or is defended and/or challenged in good faith), which in the opinion of the Owners are capable of remedy and is not remedied within fourteen (14) days from the Owners’ giving
written notice to such Security Party; or
|
(aa) |
any Security Party, any party to the Transaction Documents (other than the Owners), repudiates any of the Transaction Documents does or causes or permits to
be done any act of thing evidencing an intention to repudiate any Transaction Document; or
|
(bb) |
any money assigned pursuant to any of the Security Documents is paid other than as provided therein; or
|
(cc) |
any Project Document is terminated, cancelled, repudiated, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect
provided that
no Termination Event will occur under this paragraph (cc) if, within sixty (60) days of the termination, cancellation,
repudiation, suspension, rescission or revocation of the Sub-Charter:
|
|
(i) |
such Sub-Charter is, replaced by another time charter having similar rate of hire and duration as the Sub-Charter and on terms acceptable to
the Owners (acting timely and reasonably) entered into between the Charterers (as disponent owner) and a sub-charterer acceptable to the Owners; and
|
|
(ii) |
the rights of the Charterers’ in such replacement time charter are assigned to the Owners; or
|
(dd) |
any Security Document is terminated, cancelled, repudiated, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any
reason whatsoever; or
|
(ee) |
the occurrence of any other event or circumstances which, pursuant to the terms hereof or at law, requires the Owners to terminate this Charter; or
|
(ff) |
the occurrence of a Collateral Charter Termination Event.
|
49.2 |
Upon the occurrence of a Termination Event, the Owners shall be entitled to (but is not bound and without prejudice to the Charterers’ obligations) by written
notice to the Charterers terminate this Charter and the chartering of the Vessel under this Charter forthwith and recover any and all amounts due and payable hereunder
|
49.3 |
The Owners shall not be under any liability whatsoever to the Charterers for loss or damage whatsoever occasioned by the Charterers or any Security Party for
the termination of this Charter and the Charterers shall indemnify the Owners on demand for any and all liabilities, losses, costs and expenses incurred by the Owners pursuant to this Clause or otherwise resulting from the occurrence of
a Termination Event.
|
50. |
OWNERS’ RIGHTS ON TERMINATION
|
50.1 |
At any time after a Termination Event shall have occurred, the Owners may, by notice in writing to the Charterers, immediately, or on such other date as the
Owners shall specify, terminate this Charter and whereby:
|
|
(a) |
the Charterers shall within fifteen (15) days (in the case of a Termination Event under Clause 50.1(a)) or forty-five (45) days (in the case
of all Termination Events other than a Termination Event under Clause 50.1(a)) of the Termination Date pay to the Owners the Termination Sum; and
|
|
(b) |
the Owners’ obligation to charter the Vessel to the Charterers is terminated on the Termination Date specified by the Owners in the notice of
termination and the following provisions shall apply:
|
|
(i) |
the Vessel shall no longer be in the possession of the Charterers and the Owners shall be entitled to retake possession of the Vessel;
|
|
(ii) |
the Charterers shall procure that upon notice to the Master and Crew that the Owners have retaken possession of the Vessel, the Master and Crew shall obey the
lawful orders of the Owners as regards the navigation and management of the Vessel and shall no longer obey the Charterers; and
|
|
(iii) |
the Charterers shall redeliver the Vessel to the Owners pursuant to Clause 51 (
Redelivery
) hereof.
|
50.2 |
Any amount due to the Owners under Clauses 50 and 51 (
Redelivery
)
shall bear interest pursuant to Clause 42.3 (before and after any relevant judgment or any winding-up of the Charterers) from the relevant Termination Date to the date of the Owners’ actual receipt thereof.
|
50.3 |
Notwithstanding the termination of the chartering of the Vessel pursuant to Clause 51 (
Redelivery
), the Charterers shall irrevocably and unconditionally continue to comply with its obligations under this Charter as provided for herein until the Vessel is redelivered to the Owners in
accordance with Clause 51 (
Redelivery
).
|
50.4 |
Subject to Clause 50.5, the Owners agree to transfer the title in the Vessel to the Charterers after the Owners’ receipt of full payment of the Termination
Sum.
|
50.5 |
In the event that the Charterers fail to make punctual full payment within fifteen (15) days (in the case of a Termination Event under Clause 50.1(a)) or
forty-five (45) days (in the case of all Termination Events other than a Termination Event
|
|
(a) |
the Owners may (but is not obligated to) sell the Vessel at any time 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;
|
|
(b) |
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 Owners in respect of the sale of the Vessel (the “
Net Sale Proceeds
”);
|
|
(c) |
an amount equal to the aggregate of the Termination Sum and all other amounts payable under the Transaction Documents together with interest
as stipulated herein shall be deducted from the Net Sale Proceeds;
|
|
(d) |
if the Net Sale Proceeds are insufficient to satisfy all amounts due and payable from the Charterers to the Owners hereunder, the Charterers
shall pay the outstanding balance to the Owners; and
|
|
(e) |
any remaining balance shall be paid to the Charterers.
|
51. |
REDELIVERY
|
51.1 |
Unless the Charterers exercise their option to purchase the Vessel from the Owners pursuant to Clause 39.2, upon expiration of the Charter Period, the Owners
shall have the right to dispose of the Vessel, and the Vessel shall be redelivered to the Owners on the following terms:
|
|
(a) |
at such safe and accessible berth as specified by the Owners and, if applicable, within such ranges as specified by Charterers in accordance
with Clause 51.2;
|
|
(b) |
with her class maintained without any conditions or recommendation; and
|
|
(c) |
free of average damage affecting the Vessel’s class; and
|
|
(d) |
with all the Vessel’s classification, trading, national and international certificates that the Vessel had when she was delivered under this
Charter and the log book and whatsoever necessary relating to the operation of the Vessel, valid and un-extended without conditions or recommendation falling due for a minimum of six (6) months from the time of redelivery; and
|
|
(e) |
subject to Clause 10 (
Maintenance and
Operation
) in the same or as good structure, state, condition and class as that in which she was deemed delivered under Clause 35 (
Delivery
of the Vessel
), fair wear and tear not affecting class excepted; and
|
|
(f) |
subject to Clause 10 (
Maintenance and
Operation
) with all such spare parts and other equipment she had at the time of delivery under this Charter together with all other additions, amendments, equipment or alterations made to the Vessel during the Charter Period
without any cost to the Owners; and
|
|
(g) |
with copies of the log books and all of the classification records and certificate(s) and class’s survey report(s) as well as plans, drawings
and manuals (excluding ISM/ISPS manuals) which are on board the Vessel and relate to the Charter Period.
|
51.2 |
The Charterers shall give the Owners not less than thirty (30) days’ notices of the expected geographical range and port of redelivery.
|
51.3 |
The Charterers shall pay or reimburse to the Owners all 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 this Clause 51 together with interest thereon pursuant to Clause 42.3 hereof from the date on which
the relevant Loss was suffered by the Owners until the date of payment or reimbursement thereof (both before and after any relevant judgment or winding up of the Charterers).
|
51.4 |
The Owners shall reimburse the Charterers, a sum equal to the cost of the remaining bunkers and lubricating oil in the Vessel at the original purchase price
as evidenced by copies of invoices certified by a director of the Charterers.
|
52. |
COMMUNICATIONS
|
52.1 |
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 appearing below (or at such other address or facsimile number as such party may hereafter specify for such purposes to the other by notice in writing):
|
|
Address: |
1/F., Far East Consortium Building, 121 Des Voeux Road Central, Hong Kong
c/o Bank of Communications Financial Leasing Co., Ltd 28/F., 333 Lujiazui Ring Road, Pudong New Area, Shanghai 200120, PRC |
|
Fax: |
+86 -21-6278 8317
|
|
Email: |
fang_xz@bankcomm.com/xux_31@bankcomm.com
|
|
Attention: |
Mr. Fang Xiuzhi/Mr. Xu Xin
|
|
Address: |
1, Vass Sofias 15124, Maroussi Greece C/O Central Mare
|
|
Facsimile No.: |
0030 210 6141272
|
|
Email: |
atsirikos@topships,org
|
|
Attn: |
Alexandros Tsirikos
|
|
Telephone : |
0030 210 8128180
|
52.2 |
All communications and documents delivered pursuant to or otherwise relating to this Charter shall either be in English or accompanied by a certified English
translation.
|
52.3 |
Any communication to be made between the Parties under or in connection with this Charter may be made by electronic mail or other electronic means provided
that between the Parties:
|
|
(a) |
it is agreed that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
|
(b) |
they have notified each other in writing of their electronic mail address and/or any other information required to enable the sending and
receipt of information by that means; and
|
|
(c) |
they have notified each other of any change to their address or any other such information supplied by them.
|
52.4 |
Any electronic communication made between the Parties will be effective only when actually received in readable form and in the case of any electronic
communication made to the Owners, only if it is addressed in such a manner as the Owners shall specify for this purpose.
|
53. |
ASSIGNMENT AND SET-OFF
|
53.1 |
This Charter shall be binding upon and enure for the benefit of the Owners and the Charterers and their respective successors and permitted assigns.
|
53.2 |
The Charterers 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
Owners.
|
53.3 |
In addition to the right of the Owners to assign under Clause 44 (
Owners’ Right to Mortgage
) and Clause 45 (
Owners’ Right to Sale
), the Owners may at any time assign or transfer
any or all of its rights, benefit and interests under this Charter to any person.
|
53.4 |
Without prejudice to any right of set-off, combination of accounts, lien or other rights to which the Owners are at any time entitled whether by operation of
law or contract or otherwise, the Owners may (but shall not be obliged to) set off against any
|
54. |
MISCELLANEOUS
|
54.1 |
The Owners represent, warrant, undertake and covenant that, throughout the duration of the Charter Period, they and their officers, directors, employees,
consultants, agents and/or intermediaries, or any person acting on their behalf, have complied with, and shall comply with, all applicable Business Ethics Laws in connection with this Charter.
|
54.2 |
Time shall be of the essence of this Charter but no failure or delay on the part of the Owners to exercise any power, right or remedy under any Transaction
Document shall operate as a waiver hereof or thereof, nor shall any single or partial exercise by the Owners of any power, right or remedy preclude any other or further exercise hereof or thereof or the exercise of any other power,
right or remedy.
|
54.3 |
Any amendment or waiver of any provision of this Charter or any other Transaction Documents shall only be effective if the Owners and the Charterers so agree
in writing. Any consent by the Owners under this Charter or any Transaction Document must be made in writing. In addition, any such waiver or consent may be given subject to any conditions thought fit by the Owners and shall be
effective only in the instance and for the purpose for which it is given.
|
54.4 |
The rights of one party hereof may be exercised as often as necessary, are cumulative and not exclusive of its rights under applicable laws or otherwise and
may be waived only in writing and specifically. Failure to exercise, or any delay in exercising, by one party hereof, any right or remedy hereof shall not operate as a waiver of any such right or remedy or constitute an election to
affirm any agreement hereof. No election to affirm any agreement on the part of the Owners shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or
the exercise of any other right or remedy.
|
54.5 |
If any provision of this Charter and any Transaction Document is prohibited or unenforceable in any jurisdiction such prohibition or unenforceability shall
not invalidate the remaining provisions hereof or affect the validity or enforceability of such provision in any other jurisdiction.
|
54.6 |
This Charter may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any party hereto may
execute this Charter by signing any such counterpart.
|
54.7 |
Unless expressly identified in this Charter, no third parties shall have the right to enforce or apply any term hereof and the Contracts (
Rights of Third Parties
) Act 1999 is expressly excluded.
|
54.8 |
Clauses 32 (
Definitions
) to 54 (
Miscellaneous
) (the “
Additional Clauses
”)
form an, integral and indispensable part of this Charter and shall be read together with Part I to Part IV of this Charter. In the event of any inconsistency in the terms set out in Part I and Part II of this Charter and the Additional
Clauses (i.e. Clauses 32 (
Definitions
) to 54 (
Miscellaneous
)) of this Charter, then the terms of the Additional
|
54.9 |
This Charter (composed of, (i) Part I, Part II, and in the case where both party agree to apply either of or all of the optional Part III and Part IV, of the
standard BIMCO BARECON 2001 with agreed and or logical amendments; (ii) the Additional Clauses; and, (iii) together with its attachments, appendices and schedules) contains the entire agreement and understanding between the parties and
supersedes any prior or inconsistent agreements, negotiations, term sheet, representations and promises, written or oral between the parties respecting the subject matter hereof.
|
Purchase Option Date
|
Repurchase Price(US$)
|
3
rd
Anniversary
|
21,350,000
|
1
st
Payment Date after 3
rd
Anniversary
|
21,275,833
|
2
nd
Payment Date after 3
rd
Anniversary
|
21,201,667
|
3
rd
Payment Date after 3
rd
Anniversary
|
21,127,500
|
4
th
Payment Date after 3
rd
Anniversary
|
21,053,333
|
5
th
Payment Date after 3
rd
Anniversary
|
20,979,167
|
6
th
Payment Date after 3
rd
Anniversary
|
20,905,000
|
7
th
Payment Date after 3
rd
Anniversary
|
20,830,833
|
8
th
Payment Date after 3
rd
Anniversary
|
20,756,667
|
9
th
Payment Date after 3
rd
Anniversary
|
20,682,500
|
10
th
Payment Date after 3
rd
Anniversary
|
20,608,333
|
11
th
Payment Date after 3
rd
Anniversary
|
20,534,167
|
4
th
Anniversary
|
20,460,000
|
1
st
Payment Date after 4
th
Anniversary
|
20,381,667
|
2
nd
Payment Date after 4
th
Anniversary
|
20,303,333
|
3
rd
Payment Date after 4
th
Anniversary
|
20,225,000
|
4
th
Payment Date after 4
th
Anniversary
|
20,146,667
|
5
th
Payment Date after 4
th
Anniversary
|
20,068,333
|
6
th
Payment Date after 4
th
Anniversary
|
19,990,000
|
7
th
Payment Date after 4
th
Anniversary
|
19,911,667
|
8
th
Payment Date after 4
th
Anniversary
|
19,833,333
|
9
th
Payment Date after 4
th
Anniversary
|
19,755,000
|
10
th
Payment Date after 4
th
Anniversary
|
19,676,667
|
11
th
Payment Date after 4
th
Anniversary
|
19,598,333
|
5
th
Anniversary
|
19,520,000
|
1
st
Payment Date after 5
th
Anniversary
|
19,436,667
|
Purchase Option Date
|
Repurchase Price(US$)
|
2
nd
Payment Date after 5
th
Anniversary
|
19,353,333
|
3
rd
Payment Date after 5
th
Anniversary
|
19,270,000
|
4
th
Payment Date after 5
th
Anniversary
|
19,186,667
|
5
th
Payment Date after 5
th
Anniversary
|
19,103,333
|
6
th
Payment Date after 5
th
Anniversary
|
19,020,000
|
7
th
Payment Date after 5
th
Anniversary
|
18,936,667
|
8
th
Payment Date after 5
th
Anniversary
|
18,853,333
|
9
th
Payment Date after 5
th
Anniversary
|
18,770,000
|
10
th
Payment Date after 5
th
Anniversary
|
18,686,667
|
11
th
Payment Date after 5
th
Anniversary
|
18,603,333
|
6
th
Anniversary
|
18,520,000
|
1
st
Payment Date after 6
th
Anniversary
|
18,435,000
|
2
nd
Payment Date after 6
th
Anniversary
|
18,350,000
|
3
rd
Payment Date after 6
th
Anniversary
|
18,265,000
|
4
th
Payment Date after 6
th
Anniversary
|
18,180,000
|
5
th
Payment Date after 6
th
Anniversary
|
18,095,000
|
6
th
Payment Date after 6
th
Anniversary
|
18,010,000
|
7
th
Payment Date after 6
th
Anniversary
|
17,925,000
|
8
th
Payment Date after 6
th
Anniversary
|
17,840,000
|
9
th
Payment Date after 6
th
Anniversary
|
17,755,000
|
10
th
Payment Date after 6
th
Anniversary
|
17,670,000
|
11
th
Payment Date after 6
th
Anniversary
|
17,585,000
|
Charter Period Expiry Date
|
17,500,000
|
1. |
Security Parties
|
|
(a) |
certified copy of the constitutional documents of each Security Party including Certificate of Incorporation, and Memorandum and Articles of Association (or
equivalent in its place of incorporation);
|
|
(b) |
certified copy of resolutions of the board of directors of each Security Party, approving the execution of this Charter and the Security Documents to which it
is a party and authorizing a person or persons to execute the same under seal (where appropriate), and any other notices and documents required in connection therewith, and the specimen signature(s) of such person(s);
|
|
(c) |
original of the power of attorney of each person authorised to execute this Charter or any of the Security Documents on behalf of each Security Party; and
|
|
(d) |
a certificate of a duly authorised officer of each Security Party certifying that each copy document relating to it specified in this Schedule II is correct,
complete and in full force and effect and setting out the names of the directors, officers and shareholders of that Security Party and the proportion of shares held by each shareholder; and
|
2. |
Security Documents
|
|
(a) |
the Charterer Account Security Deed;
|
|
(b) |
the General Assignment;
|
|
(c) |
the Share Charge;
|
|
(d) |
the Guarantees; and
|
|
(e) |
the Manager’s Undertaking.
|
3. |
Legal Opinions
|
|
(a) |
an English legal opinion addressed to the Owners in such form and substance satisfactory to the Owners;
|
|
(b) |
a Marshall Islands legal opinion addressed to the Owners in such form and substance satisfactory to the Owners; and
|
|
(c) |
such other legal opinions as the Owners may require.
|
4. |
Other documents and evidence
|
|
(a) |
evidence that the Ship Registry of the Flag State has issued a letter acknowledging this Charter (if available);
|
|
(b) |
all notices, consents, acknowledgements and other documents required to be received, given or exchanged pursuant to the Security Documents having been duly
executed in the agreed forms;
|
|
(c) |
receipt by the Owners of all the documents that shall be delivered to the
|
|
(d) |
evidence that the Delivery Costs, the Advance Hire and the Charterers Arrangement Fee which is due and payable having been paid in accordance with the
relevant provisions of this Charter;
|
|
(e) |
evidence that full payment by the Charterers of all the legal fees with respect to the preparation, negotiation, execution and delivery of this Charter and
the Transaction Documents;
|
|
(f) |
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 48 of this Charter in respect of such Insurances have been complied with;
|
|
(g) |
if required by the Owners or the Mortgagee, a satisfactory opinion from an insurance consultants approved by the Owners on the insurances effected or to be
effected on the Vessel pursuant to the provisions of this Charter;
|
|
(h) |
evidence that the Vessel is classified and maintained in the highest class (free of outstanding recommendations or conditions of class) with the
Classification Society;
|
|
(i) |
such evidence as the Owners and/or the Mortgagee may require of the Charterers’ compliance with the ISM Code, the ISPS Code and MARPOL and all other
international code, convention, regulation applicable to the Vessel;
|
|
(j) |
the Vessel’s current Tonnage Certificate and International Load Line Certificate;
|
|
(k) |
the Vessel’s current Cargo Ship Safety Construction, Safety Equipment and Safety Radio Certificates;
|
|
(l) |
the Vessel’s current Minimum Safe Manning Document;
|
|
(m) |
the Vessel’s current Safety Management Certificate (SMC) under the ISM Code;
|
|
(n) |
the Manager’s current Document of Compliance (DOC) under the ISM Code;
|
|
(o) |
the Vessel’s current International Ship Security Certificate (ISSC);
|
|
(p) |
the Vessel’s current International Air Pollution Prevention Certificate (IAPPC) in respect of the Vessel, International Oil Pollution Prevention Certificate
(IOPP Certificate) and International Sewage Pollution Prevention Certificate (ISPP Certificate);
|
|
(q) |
a certified true copy of each Project Document and evidence that the Vessel has been delivered to the Sub-Charterer under the Sub-Charter; and
|
|
(r) |
an amount of not less than the Minimum Balance has been paid into the Charterer Account.
|
(a) |
that in the event of actual or constructive or compromised or arranged total loss of the Vessel the proceeds of insurance shall be paid first to the Owner;
|
(b) |
that all other losses not exceeding US$300,000 (United States Dollars Three Hundred Thousand) shall be paid to the Charterer or its order and if the
Underwriters or Insurers shall have been so notified by the Owner, then such losses shall be paid to the Owner; and
|
(c) |
that all other losses exceeding US$300,000 (United States Dollars Three Hundred Thousand) shall be paid to the Owner unless the Owner consents in writing to
such payment being made directly to the repairers on account of repairs in the course of being effected.
|
for and on behalf of Owner
[
●
]
|
for and on behalf of Charterer
[
●
]
|
||
Name:
Title:
|
Name:
Title:
|
Date
|
Owners’ Costs (US$)
|
Fixed Hire (US$)
|
Delivery Date
|
24,140,000
|
|
15 January 2019
|
24,077,006
|
62,994
|
15 February 2019
|
24,032,041
|
44,965
|
15 March 2019
|
23,968,420
|
63,621
|
15 April 2019
|
23,906,494
|
61,926
|
15 May 2019
|
23,842,145
|
64,349
|
15 June 2019
|
23,779,511
|
62,635
|
15 July 2019
|
23,714,425
|
65,086
|
15 August 2019
|
23,648,961
|
65,463
|
15 September 2019
|
23,585,242
|
63,719
|
15 October 2019
|
23,519,029
|
66,213
|
15 November 2019
|
23,454,580
|
64,449
|
15 December 2019
|
23,387,610
|
66,971
|
15 January 2020
|
23,320,250
|
67,360
|
15 February 2020
|
23,256,871
|
63,379
|
15 March 2020
|
23,188,753
|
68,118
|
15 April 2020
|
23,122,449
|
66,303
|
15 May 2020
|
23,053,551
|
68,898
|
15 June 2020
|
22,986,489
|
67,062
|
15 July 2020
|
22,916,802
|
69,687
|
15 August 2020
|
22,846,711
|
70,091
|
15 September 2020
|
22,778,488
|
68,224
|
15 October 2020
|
22,707,594
|
70,894
|
15 November 2020
|
22,638,589
|
69,005
|
15 December 2020
|
22,566,884
|
71,705
|
15 January 2021
|
22,494,763
|
72,121
|
15 February 2021
|
22,429,243
|
65,520
|
15 March 2021
|
22,356,323
|
72,920
|
15 April 2021
|
22,285,346
|
70,977
|
15 May 2021
|
22,211,592
|
73,755
|
15 June 2021
|
22,139,802
|
71,790
|
15 July 2021
|
22,065,203
|
74,599
|
15 August 2021
|
21,990,171
|
75,032
|
15 September 2021
|
21,917,138
|
73,033
|
15 October 2021
|
21,841,247
|
75,891
|
15 November 2021
|
21,767,379
|
73,869
|
15 December 2021
|
21,690,619
|
76,760
|
15 January 2022
|
21,613,414
|
77,205
|
15 February 2022
|
21,543,275
|
70,138
|
15 March 2022
|
21,465,215
|
78,060
|
15 April 2022
|
21,389,235
|
75,980
|
15 May 2022
|
21,310,281
|
78,954
|
15 June 2022
|
21,233,431
|
76,850
|
15 July 2022
|
21,153,573
|
79,858
|
Date
|
Owners’ Costs (US$)
|
Fixed Hire (US$)
|
15 August 2022
|
21,073,252
|
80,321
|
15 September 2022
|
20,995,071
|
78,181
|
15 October 2022
|
20,913,831
|
81,241
|
15 November 2022
|
20,834,755
|
79,076
|
15 December 2022
|
20,752,584
|
82,171
|
15 January 2023
|
20,669,937
|
82,647
|
15 February 2023
|
20,594,854
|
75,082
|
15 March 2023
|
20,511,292
|
83,563
|
15 April 2023
|
20,429,955
|
81,336
|
15 May 2023
|
20,345,436
|
84,519
|
15 June 2023
|
20,263,169
|
82,267
|
15 July 2023
|
20,177,682
|
85,487
|
15 August 2023
|
20,091,699
|
85,983
|
15 September 2023
|
20,008,007
|
83,692
|
15 October 2023
|
19,921,039
|
86,967
|
15 November 2023
|
19,836,389
|
84,650
|
15 December 2023
|
19,748,426
|
87,963
|
15 January 2024
|
19,659,953
|
88,473
|
15 February 2024
|
19,576,707
|
83,246
|
15 March 2024
|
19,487,237
|
89,470
|
15 April 2024
|
19,400,152
|
87,086
|
15 May 2024
|
19,309,657
|
90,494
|
15 June 2024
|
19,221,575
|
88,083
|
15 July 2024
|
19,130,044
|
91,530
|
15 August 2024
|
19,037,983
|
92,061
|
15 September 2024
|
18,948,375
|
89,608
|
15 October 2024
|
18,855,260
|
93,115
|
15 November 2024
|
18,764,626
|
90,634
|
15 December 2024
|
18,670,444
|
94,181
|
15 January 2025
|
18,575,717
|
94,728
|
15 February 2025
|
18,489,660
|
86,057
|
15 March 2025
|
18,393,883
|
95,777
|
15 April 2025
|
18,300,659
|
93,225
|
15 May 2025
|
18,203,786
|
96,873
|
15 June 2025
|
18,109,494
|
94,292
|
15 July 2025
|
18,011,511
|
97,982
|
15 August 2025
|
17,912,961
|
98,551
|
15 September 2025
|
17,817,036
|
95,925
|
15 October 2025
|
17,717,357
|
99,679
|
15 November 2025
|
17,620,334
|
97,023
|
15 December 2025
|
17,500,000
|
120,334
|
Payment Date / Purchase Option Date
|
Hire (USD)
|
Fixed Hire (USD)
|
Variable Hire (USD)
|
Owners’ Costs (USD)
|
Repurchase Price (USD)
|
Early Termination Amount (USD)
|
24
th
Payment Date
|
20,552,991
|
N/A
|
21,263,333
|
|||
25
th
Payment Date
|
162,602
|
43,642
|
118,960
|
20,509,349
|
N/A
|
21,143,472
|
26
th
Payment Date
|
146,866
|
39,647
|
107,220
|
20,469,702
|
N/A
|
21,023,611
|
27
th
Payment Date
|
162,602
|
44,124
|
118,478
|
20,425,578
|
N/A
|
20,903,750
|
28
th
Payment Date
|
157,357
|
42,948
|
114,409
|
20,382,630
|
N/A
|
20,783,889
|
29
th
Payment Date
|
162,602
|
44,628
|
117,974
|
20,338,001
|
N/A
|
20,664,028
|
30
th
Payment Date
|
157,357
|
43,439
|
113,918
|
20,294,563
|
N/A
|
20,544,167
|
31
st
Payment Date
|
162,602
|
45,138
|
117,464
|
20,249,425
|
N/A
|
20,424,306
|
32
nd
Payment Date
|
162,602
|
45,399
|
117,203
|
20,204,026
|
N/A
|
20,304,444
|
33
rd
Payment Date
|
157,357
|
44,189
|
113,168
|
20,159,836
|
N/A
|
20,184,583
|
34
th
Payment Date
|
162,602
|
45,918
|
116,684
|
20,113,919
|
N/A
|
20,064,722
|
35
th
Payment Date
|
157,357
|
44,694
|
112,663
|
20,069,225
|
N/A
|
19,944,861
|
3rd Anniversary
|
162,602
|
46,442
|
116,160
|
20,022,783
|
19,825,000
|
N/A
|
37
th
Payment Date
|
162,602
|
46,711
|
115,891
|
19,976,072
|
19,781,667
|
N/A
|
38
th
Payment Date
|
146,866
|
42,435
|
104,432
|
19,933,637
|
19,738,333
|
N/A
|
39
th
Payment Date
|
162,602
|
47,227
|
115,375
|
19,886,410
|
19,695,000
|
N/A
|
40
th
Payment Date
|
157,357
|
45,968
|
111,389
|
19,840,442
|
19,651,667
|
N/A
|
41
st
Payment Date
|
162,602
|
47,766
|
114,836
|
19,792,675
|
19,608,333
|
N/A
|
42
nd
Payment Date
|
157,357
|
46,493
|
110,864
|
19,746,182
|
19,565,000
|
N/A
|
43
rd
Payment Date
|
162,602
|
48,312
|
114,290
|
19,697,870
|
19,521,667
|
N/A
|
44
th
Payment Date
|
162,602
|
48,592
|
114,011
|
19,649,279
|
19,478,333
|
N/A
|
45
th
Payment Date
|
157,357
|
47,296
|
110,061
|
19,601,982
|
19,435,000
|
N/A
|
Payment Date / Purchase Option Date
|
Hire (USD)
|
Fixed Hire (USD)
|
Variable Hire (USD)
|
Owners’ Costs (USD)
|
Repurchase Price (USD)
|
Early Termination Amount (USD)
|
46
th
Payment Date
|
162,602
|
49,147
|
113,456
|
19,552,836
|
19,391,667
|
N/A
|
47
th
Payment Date
|
157,357
|
47,837
|
109,520
|
19,504,999
|
19,348,333
|
N/A
|
4
th
Anniversary
|
162,602
|
49,708
|
112,894
|
19,455,291
|
19,305,000
|
N/A
|
49
th
Payment Date
|
162,602
|
49,996
|
112,606
|
19,405,296
|
19,258,083
|
N/A
|
50
th
Payment Date
|
146,866
|
45,419
|
101,448
|
19,359,877
|
19,211,167
|
N/A
|
51
st
Payment Date
|
162,602
|
50,548
|
112,054
|
19,309,329
|
19,164,250
|
N/A
|
52
nd
Payment Date
|
157,357
|
49,200
|
108,156
|
19,260,129
|
19,117,333
|
N/A
|
53
rd
Payment Date
|
162,602
|
51,125
|
111,477
|
19,209,003
|
19,070,417
|
N/A
|
54
th
Payment Date
|
157,357
|
49,762
|
107,594
|
19,159,241
|
19,023,500
|
N/A
|
55
th
Payment Date
|
162,602
|
51,709
|
110,893
|
19,107,532
|
18,976,583
|
N/A
|
56
th
Payment Date
|
162,602
|
52,008
|
110,594
|
19,055,523
|
18,929,667
|
N/A
|
57
th
Payment Date
|
157,357
|
50,622
|
106,735
|
19,004,901
|
18,882,750
|
N/A
|
58
th
Payment Date
|
162,602
|
52,602
|
110,000
|
18,952,299
|
18,835,833
|
N/A
|
59
th
Payment Date
|
157,357
|
51,200
|
106,157
|
18,901,098
|
18,788,917
|
N/A
|
5
th
Anniversary
|
162,602
|
53,203
|
109,399
|
18,847,895
|
18,742,000
|
N/A
|
61
st
Payment Date
|
162,602
|
53,511
|
109,091
|
18,794,384
|
18,691,833
|
N/A
|
62
nd
Payment Date
|
152,112
|
50,349
|
101,763
|
18,744,035
|
18,641,667
|
N/A
|
63
rd
Payment Date
|
162,602
|
54,112
|
108,490
|
18,689,923
|
18,591,500
|
N/A
|
64
th
Payment Date
|
157,357
|
52,670
|
104,687
|
18,637,253
|
18,541,333
|
N/A
|
65
th
Payment Date
|
162,602
|
54,730
|
107,872
|
18,582,523
|
18,491,167
|
N/A
|
66
th
Payment Date
|
157,357
|
53,271
|
104,085
|
18,529,251
|
18,441,000
|
N/A
|
67
th
Payment Date
|
162,602
|
55,356
|
107,247
|
18,473,896
|
18,390,833
|
N/A
|
68
th
Payment Date
|
162,602
|
55,676
|
106,926
|
18,418,220
|
18,340,667
|
N/A
|
69
th
Payment Date
|
157,357
|
54,192
|
103,165
|
18,364,028
|
18,290,500
|
N/A
|
70
th
Payment Date
|
162,602
|
56,312
|
106,290
|
18,307,716
|
18,240,333
|
N/A
|
71
st
Payment Date
|
157,357
|
54,811
|
102,546
|
18,252,905
|
18,190,167
|
N/A
|
Payment Date / Purchase Option Date
|
Hire (USD)
|
Fixed Hire (USD)
|
Variable Hire (USD)
|
Owners’ Costs (USD)
|
Repurchase Price (USD)
|
Early Termination Amount (USD)
|
72
nd
Payment Date
|
162,602
|
56,955
|
105,647
|
18,195,950
|
18,140,000
|
N/A
|
73
rd
Payment Date
|
162,602
|
57,285
|
105,317
|
18,138,666
|
18,086,667
|
N/A
|
74
th
Payment Date
|
146,866
|
52,040
|
94,826
|
18,086,625
|
18,033,333
|
N/A
|
75
th
Payment Date
|
162,602
|
57,917
|
104,685
|
18,028,708
|
17,980,000
|
N/A
|
76
th
Payment Date
|
157,357
|
56,374
|
100,983
|
17,972,334
|
17,926,667
|
N/A
|
77
th
Payment Date
|
162,602
|
58,579
|
104,023
|
17,913,755
|
17,873,333
|
N/A
|
78
th
Payment Date
|
157,357
|
57,017
|
100,339
|
17,856,738
|
17,820,000
|
N/A
|
79
th
Payment Date
|
162,602
|
59,248
|
103,354
|
17,797,490
|
17,766,667
|
N/A
|
80
th
Payment Date
|
162,602
|
59,591
|
103,011
|
17,737,899
|
17,713,333
|
N/A
|
81
st
Payment Date
|
157,357
|
58,002
|
99,354
|
17,679,896
|
17,660,000
|
N/A
|
82
nd
Payment Date
|
162,602
|
60,272
|
102,331
|
17,619,625
|
17,606,667
|
N/A
|
83
rd
Payment Date
|
157,357
|
58,665
|
98,692
|
17,560,960
|
17,553,333
|
N/A
|
84
th
Payment Date
|
162,602
|
60,960
|
101,642
|
17,500,000
|
N/A
|
N/A
|
Early Termination Date
|
Early Termination Amount (US$)
|
Delivery Date
|
24,140,000
|
1
st
Payment Date after Delivery Date
|
24,062,500
|
2
nd
Payment Date after Delivery Date
|
23,985,000
|
3
rd
Payment Date after Delivery Date
|
23,907,500
|
4
th
Payment Date after Delivery Date
|
23,830,000
|
5
th
Payment Date after Delivery Date
|
23,752,500
|
6
th
Payment Date after Delivery Date
|
23,675,000
|
7
th
Payment Date after Delivery Date
|
23,597,500
|
8
th
Payment Date after Delivery Date
|
23,520,000
|
9
th
Payment Date after Delivery Date
|
23,442,500
|
10
th
Payment Date after Delivery Date
|
23,365,000
|
11
th
Payment Date after Delivery Date
|
23,287,500
|
1
st
Anniversary
|
23,210,000
|
1
st
Payment Date after 1
st
Anniversary
|
23,132,500
|
2
nd
Payment Date after 1
st
Anniversary
|
23,055,000
|
3
rd
Payment Date after 1
st
Anniversary
|
22,977,500
|
4
th
Payment Date after 1
st
Anniversary
|
22,900,000
|
5
th
Payment Date after 1
st
Anniversary
|
22,822,500
|
6
th
Payment Date after 1
st
Anniversary
|
22,745,000
|
7
th
Payment Date after 1
st
Anniversary
|
22,667,500
|
8
th
Payment Date after 1
st
Anniversary
|
22,590,000
|
9
th
Payment Date after 1
st
Anniversary
|
22,512,500
|
10
th
Payment Date after 1
st
Anniversary
|
22,435,000
|
11
th
Payment Date after 1
st
Anniversary
|
22,357,500
|
2
nd
Anniversary
|
22,280,000
|
Early Termination Date
|
Early Termination Amount (US$)
|
1
st
Payment Date after 2
nd
Anniversary
|
22,202,500
|
2
nd
Payment Date after 2
nd
Anniversary
|
22,125,000
|
3
rd
Payment Date after 2
nd
Anniversary
|
22,047,500
|
4
th
Payment Date after 2
nd
Anniversary
|
21,970,000
|
5
th
Payment Date after 2
nd
Anniversary
|
21,892,500
|
6
th
Payment Date after 2
nd
Anniversary
|
21,815,000
|
7
th
Payment Date after 2
nd
Anniversary
|
21,737,500
|
8
th
Payment Date after 2
nd
Anniversary
|
21,660,000
|
9
th
Payment Date after 2
nd
Anniversary
|
21,582,500
|
10
th
Payment Date after 2
nd
Anniversary
|
21,505,000
|
11
th
Payment Date after 2
nd
Anniversary
|
21,427,500
|
For and on behalf of the Owners
XIANG T88 HK INTERNATIONAL SHIP LEASE CO., LIMITED
|
For and on behalf of the Charterers
PCH77 SHIPPING COMPANY LIMITED
|
||||
/s/ Lu Zhendong
|
/s/ Andreas M. Louka
|
||||
Name:
|
Lu Zhendong
|
Name:
|
Andreas M. Louka
|
||
Title:
|
Director
|
Title:
|
Attorney-in-fact
|
Clause
|
Page
|
27
|
Chartering undertakings
|
79
|
28
|
Bank accounts
|
81
|
29
|
Business restrictions
|
82
|
30
|
Events of Default
|
84
|
Section 9 - Changes to Parties
|
90
|
|
31
|
Changes to the Lenders
|
90
|
32
|
Changes to the Obligors
|
93
|
Section 10 - The Finance Parties
|
94
|
|
33
|
Roles of Agent, Security Agent and Arranger
|
94
|
34
|
Trust and security matters
|
105
|
35
|
Enforcement of Transaction Security
|
109
|
36
|
Application of proceeds
|
110
|
37
|
Conduct of business by the Finance Parties
|
113
|
38
|
Sharing among the Finance Parties
|
113
|
Section 11 - Administration
|
115
|
|
39
|
Payment mechanics
|
115
|
40
|
Set-off
|
118
|
41
|
Notices
|
119
|
42
|
Calculations and certificates
|
121
|
43
|
Partial invalidity
|
121
|
44
|
Remedies and waivers
|
121
|
45
|
Amendments and waivers
|
121
|
46
|
Confidential Information
|
126
|
47
|
Confidentiality of Funding Rates
|
128
|
48
|
Counterparts
|
129
|
49
|
Contractual recognition of bail-in
|
130
|
Section 12 - Governing Law and Enforcement
|
131
|
|
50
|
Governing law
|
131
|
51
|
Enforcement
|
131
|
Schedule 1 The original parties
|
132
|
|
Schedule2 Ship information
|
136
|
|
Schedule 3 Conditions precedent
|
138
|
|
Schedule 4 Utilisation Request
|
143
|
|
Schedule 5 Form of Transfer Certificate
|
144
|
|
Schedule 6 Forms of Notifiable Debt Purchase Transaction Notice
|
147
|
|
Schedule 7 Form of Compliance Certificate
|
149
|
(1) |
PCH77 SHIPPING COMPANY LIMITED
(the
Borrower
);
|
(2) |
TOP SHIPS INC.
(the
Top Ships Guarantor
);
|
(3) |
ASTARTE INTERNATIONAL INC.
(the
Astarte Guarantor
);
|
(4) |
AMSTERDAM TRADE BANK N.V.
as mandated lead arranger
(the
Arranger
);
|
(5) |
THE FINANCIAL INSTITUTIONS
listed in Schedule 1 as
lenders (the
Original
Lenders
);
|
(6) |
AMSTERDAM TRADE BANK N.V.
as agent of the other Finance
Parties (the
Agent
); and
|
(7) |
AMSTERDAM TRADE BANK N.V.
as security trustee for the
Finance Parties (the
Security Agent
).
|
1 |
Definitions and interpretation
|
1.1 |
Definitions
|
|
(a) |
a bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of “A-” or higher by Standard &
Poor’s Rating Services or Fitch Ratings Ltd or “Baal” or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or
|
|
(b) |
any other bank or financial institution approved by the Agent and the Borrower.
|
|
(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) |
any law or regulation in force as at the date hereof implementing the Basel II Accord, (including the relevant provisions of CRD IV and CRR) to the extent
only that such law or regulation re-enacts and/or implements the requirements of the Basel II Accord but excluding any provision of such law or regulation implementing the Basel III Accord; and
|
|
(b) |
any Basel II Approach adopted by a Finance Party or any of its Affiliates.
|
|
(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” other than, in each such case, the
agreements, rules, guidance and standards set out in Reformed Basel III as amended, supplemented or restated after the date of this Agreement.
|
|
(a) |
the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in the
Loan or relevant part of it or Unpaid Sum to the last day of the current Interest Period in respect of the Loan or relevant part of it or Unpaid Sum, had the relevant principal amount or Unpaid Sum received been paid on the last day of
that Interest Period;
|
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the relevant principal amount or Unpaid Sum received by it on deposit with
a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of that Interest Period.
|
|
(a) |
a second priority assignment by the Astarte Guarantor or its interest in such Charter Documents in favour of the Security Agent in the agreed form; and
|
|
(b) |
a second priority assignment by the Charterer or its interest in such Charter Documents in favour of the Security Agent in the agreed form.
|
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Schedule 1 (The original parties) and the amount of any
other Commitment assigned to it under this Agreement; and
|
|
(b) |
in relation to any other Lender, the amount of any Commitment assigned to it under this Agreement,
|
|
(a) |
any member of the Group or any of its advisers; or
|
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group 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 46
(Confidential Information)
;
or
|
|
(B) |
is identified in writing or orally if given orally at the time of delivery as non-confidential by any member of the Group 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 the Group 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) |
purchases by way of assignment or transfer;
|
|
(b) |
enters into any sub-participation in respect of; or
|
|
(c) |
enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,
|
|
(a) |
which has failed to make its participation in an Advance available (or has notified the Agent or the Borrower (which has notified the Agent) that it will not
make its participation in an Advance available) by the Utilisation Date of that Advance in accordance with clause 5.4 (Lenders’ participation);
|
|
(b) |
which has otherwise rescinded or repudiated a Finance Document; or
|
|
(c) |
with respect to which an Insolvency Event has occurred and is continuing,
|
|
(i) |
its failure to pay is caused by:
|
|
(A) |
administrative or technical error; or
|
|
(B) |
a Disruption Event; and,
|
|
(ii) |
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
|
(a) |
a Total Loss of such Ship, the applicable Total Loss Repayment Date; and
|
|
(b) |
a sale of such Ship by the Astarte Guarantor, the date upon which such sale is completed by the transfer of title to the purchaser in exchange for payment of
all or part of the relevant purchase price.
|
|
(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
|
|
(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
preventing that, or any other Party:
|
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
|
(a) |
in relation to the Borrower’s Ship and/or the Borrower, all money at any time payable to the Borrower for or in relation to the use or operation of the
Borrower’s Ship, the Building Contract Documents or otherwise including damages for breach and payments for termination or variation of any charter commitment, any Building Contract Document or otherwise; and
|
|
(b) |
in relation to the Collateral Ship and a person, all money at any time payable to that person for or in relation to the use or operation of such Ship,
including freight, hire and passage moneys, money payable to that person for the provision of services by or from such Ship or under any charter commitment, requisition for hire compensation, remuneration for salvage and towage
services, demurrage and detention moneys and damages for breach and payments for termination or variation of any charter commitment.
|
|
(a) |
enforcement, clean-up, removal or other governmental or regulatory action or orders or claims instituted or made pursuant to any Environmental Laws or
resulting from a Spill; or
|
|
(b) |
any claim made by any other person relating to a Spill.
|
|
(a) |
any Fleet Vessel or its owner, operator or manager is liable for Environmental Claims arising from the Spill (other than Environmental Claims arising and
fully satisfied before the date of this Agreement); and/or
|
|
(b) |
any Fleet Vessel is arrested or attached in connection with any such Environmental Claim.
|
|
(a) |
in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that
date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; or
|
|
(b) |
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
|
(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) |
moneys borrowed and debit balances at banks or other financial institutions;
|
|
(b) |
any amount raised under any acceptance under any acceptance credit or bill discounting 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 respect of any lease or hire purchase contract which would, in accordance with GAAP be treated as a finance or capital lease;
|
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition
under GAAP);
|
|
(f) |
any Treasury Transaction (and, when calculating the value of that Treasury 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 Treasury Transaction, that amount) shall be taken into account);
|
|
(g) |
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;
|
|
(h) |
in respect of the Borrower only, any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Repayment
Date or are otherwise classified as borrowings under GAAP);
|
|
(i) |
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise
finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply;
|
|
(j) |
any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) of a type not
referred to in any other paragraph of this definition having the commercial effect of a borrowing or otherwise classified as borrowings under GAAP; and
|
|
(k) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.
|
|
(a) |
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for
payment;
|
|
(b) |
the Agent otherwise rescinds or repudiates a Finance Document;
|
|
(c) |
(if the Agent is also a Lender) it is a Defaulting Lender under paragraphs (a) or (b) of the definition of “Defaulting Lender”; or
|
|
(d) |
an Insolvency Event has occurred and is continuing with respect to the Agent,
|
|
(i) |
its failure to pay is caused by:
|
|
(A) |
administrative or technical error; or
|
|
(B) |
a Disruption Event; and
|
|
(ii) |
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
|
(a) |
each Finance Party, each Receiver, any Delegate and any attorney, agent or other person appointed by them under the Finance Documents;
|
|
(b) |
each Affiliate of those persons; and
|
|
(c) |
any officers, directors, employees, advisers, representatives or agents of any of the above persons.
|
|
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
|
(d) |
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction
over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or
other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
|
|
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or
presented by a person or entity not described in paragraph (d) above and:
|
|
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding up or liquidation; or
|
|
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
|
(f) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
|
(g) |
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in
paragraph (d) above);
|
|
(h) |
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other enforcement action
or legal process levied, enforced, taken or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within
30 days thereafter;
|
|
(i) |
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events
specified in paragraphs (a) to (h) above; or
|
|
(j) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
|
(a) |
all policies and contracts of insurance; and
|
|
(b) |
all entries in a protection and indemnity or war risks or other mutual insurance association,
|
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the relevant Interest Period; and
|
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant Interest Period,
|
|
(a) |
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency,
reorganisation and other laws generally affecting the rights of creditors;
|
|
(b) |
the time barring of claims under the Limitation Act 1980 and the Foreign Limitation Periods Act 1984, the possibility that an undertaking to assume liability
for, or indemnify a person against, non-payment of UK stamp duty may be void and defences of set-off or counterclaim; and
|
|
(c) |
similar principles, rights and defences under the laws of any Relevant Jurisdiction.
|
|
(a) |
any Original Lender; and
|
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with clause 31 (Changes to the Lenders),
|
|
(a) |
the applicable Screen Rate as of 11:00 a.m. on the relevant Quotation Day for a period equal in length to the Interest Period of the Loan or relevant part of
it or Unpaid Sum; or
|
|
(b) |
as otherwise determined pursuant to clause 11.1 (Unavailability of Screen Rate),
|
|
(a) |
from the date of this Agreement until the Utilisation Date (as such term is defined in the Post-Delivery Facility Agreement) under the Post-Delivery Facility
Agreement, 6.30 per cent per annum; and
|
|
(b) |
at all times thereafter, 6 per cent per annum.
|
|
(a) |
the business or financial condition of an Obligor; or
|
|
(b) |
the ability of an Obligor to perform its obligations under the Finance Documents; or
|
|
(c) |
the legality, validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purporting to be 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 the calendar
month in which that period is to end (if there is one) or on the immediately preceding Business Day (if there is not);
|
|
(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) |
the Pre-Delivery Security Assignment;
|
|
(b) |
the Share Security in relation to the shares in each of the Borrower and the Astarte Guarantor;
|
|
(c) |
the Account Security in relation to each Operating Account;
|
|
(d) |
the Mortgage;
|
|
(e) |
the General Assignment;
|
|
(f) |
each Charter Assignment; and
|
|
(g) |
any Manager’s Undertaking if required under clause 24.11
(Manager)
.
|
|
(a) |
any ship repairer’s or outfitter’s possessory lien in respect of the Collateral Ship for an amount not exceeding the Major Casualty Amount;
|
|
(b) |
any lien on the Collateral Ship for master’s, officer’s or crew’s wages outstanding in the ordinary course of its trading;
|
|
(c) |
any lien on the Collateral Ship for salvage or general average; and
|
|
(d) |
any other lien on the Collateral Ship arising by operation of law for claims incurred in the ordinary course of the operation, repair or maintenance of the
Collateral Ship and which are outstanding for not longer than thirty (30) days or for an aggregate amount not exceeding the Major Casualty Amount.
|
|
(a) |
granted by the Finance Documents; or
|
|
(b) |
approved by the Majority Lenders; or
|
|
(c) |
in the case of the Collateral Ship only:
|
|
(i) |
a Permitted Maritime Lien; or
|
|
(ii) |
granted by the Post-Delivery Facility Agreement and any Post-Delivery Finance Documents.
|
|
(a) |
its Original Jurisdiction;
|
|
(b) |
any jurisdiction where any Charged Property owned by it is situated;
|
|
(c) |
any jurisdiction where it conducts its business; and
|
|
(d) |
any jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
|
(a) |
31 May 2019; and
|
|
(b) |
the Delivery Date.
|
|
(a) |
is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person) or otherwise a target of Sanctions;
|
|
(b) |
is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of or, such country or territory which is, or
whose government is, subject to Sanctions broadly prohibiting dealings with such government, country or territory;
|
|
(c) |
is directly or indirectly owned by or controlled by a person referred to in (a) and/or (b) above; or
|
|
(d) |
owns or controls a person referred to in (a) and/or (b) above.
|
|
(a) |
the United States of America;
|
|
(b) |
the United Nations Security Council;
|
|
(c) |
the United Kingdom;
|
|
(d) |
the European Union or any of its member states;
|
|
(e) |
Monaco;
|
|
(f) |
any country to which any Obligor or any Affiliate of any of them is bound; or
|
|
(g) |
the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US
Department of Treasury (OFAC), the United States Department of State, Her Majesty’s Treasury (HMT) and Service d’ Information et de Contrale sur les Circuits Financiers (together
Sanctions Authorities
).
|
|
(a) |
the Original Security Documents; and
|
|
(b) |
any other document as may be executed to guarantee and/or secure any amounts owing to the Finance Parties under this Agreement or any other Finance Document.
|
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Finance Parties and all proceeds of that Transaction
Security;
|
|
(b) |
all obligations expressed to be undertaken by any Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the
Finance Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Finance Parties; and
|
|
(c) |
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 Finance Parties.
|
|
(a) |
the document constituting a first Security Interest executed by the Top Ships Guarantor in favour of the Security Agent in the agreed form in respect of all
of the shares in the Borrower; and
|
|
(b) |
the document constituting a second Security Interest executed by the Top Ships Guarantor in favour of the Security Agent in the agreed form in respect of all
of the shares in the Astarte Guarantor.
|
|
(a) |
directly or indirectly controlled by such person; or
|
|
(b) |
of whose dividends or distributions on ordinary voting share capital such person is beneficially entitled to receive more than 50 per cent,
|
|
(a) |
in relation to the Borrower’s Ship, its actual, constructive, compromised or arranged total loss; and
|
|
(b) |
in relation to the Collateral Ship, its:
|
|
(i) |
actual, constructive, compromised or arranged total loss; or
|
|
(ii) |
requisition for title, confiscation or other compulsory acquisition by a government entity; or
|
|
(iii) |
hijacking, theft, condemnation, capture, seizure, arrest or detention for more than 90 days or in the case of piracy for more than 180 days.
|
|
(a) |
in the case of an actual total loss, the date it happened or, if such date is not known, the date on which the Collateral Ship was last reported;
|
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss, the earliest of:
|
|
(i) |
the date notice of abandonment of the Collateral Ship is given to its insurers; or
|
|
(ii) |
if the insurers do not admit such a claim, the date later determined by a competent court of law to have been the date on which the total loss happened; or
|
|
(iii) |
the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the Collateral Ship’s insurers;
|
|
(c) |
in the case of a requisition for title, confiscation or compulsory acquisition, the date it happened; and
|
|
(d) |
in the case of hijacking, theft, condemnation, capture, seizure, arrest or detention, the date 90 days after the date upon which it happened or in the case of
piracy, the date falling 180 days after the date it happened.
|
|
(a) |
the date 180 days after its Total Loss Date; and
|
|
(b) |
the date upon which insurance proceeds or Requisition Compensation for such Total Loss are paid by insurers or the relevant government entity.
|
|
(a) |
each of the Finance Documents;
|
|
(b) |
each Building Contract Document; and
|
|
(c) |
each Charter Document.
|
|
(a) |
the proposed Transfer Date specified in the Transfer Certificate; and
|
|
(b) |
the date on which the Agent executes the Transfer Certificate.
|
|
(a) |
the Borrower if it is resident for tax purposes in the US; or
|
|
(b) |
an Obligor 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 or Monaco in substitution for, or levied in addition to, such tax
referred to in paragraph (a) above, or imposed elsewhere.
|
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that
Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial
institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert
all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any
obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
1.2 |
Construction
|
|
(a) |
Unless a contrary indication appears, a reference in any of the Finance Documents to:
|
|
(i) |
Sections, clauses and Schedules are to be construed as references to the Sections and clauses of, and the Schedules to, the relevant Finance Document and
references to a Finance Document include its Schedules;
|
|
(ii) |
a
Finance Document
or any other agreement or
instrument is a reference to that Finance Document or other agreement or instrument as it may from time to time be amended, restated, novated or replaced, however fundamentally;
|
|
(iii) |
words importing the plural shall include the singular and vice versa;
|
|
(iv) |
a time of day is to London time;
|
|
(v) |
any person includes its successors in title, permitted assignees or transferees;
|
|
(vi) |
a document in agreed form means:
|
|
(A) |
where a Finance Document has already been executed by all of the relevant parties, such Finance Document in its executed form;
|
|
(B) |
prior to the execution of a Finance Document, the form of such Finance Document separately agreed in writing between the Agent and the Borrower as the form in
which that Finance Document is to be executed or another form approved at the request of the Borrower or, if not so agreed or approved, is in the form specified by the Agent;
|
|
(vii) |
approved by the Majority Lenders
or
approved by the Lenders
means approved in writing by the Agent acting on the instructions of the Majority Lenders or, as the case may
be, all of the Lenders (on such conditions as they may respectively impose) and otherwise
approved
means approved in writing by the
Agent (on such conditions as the Agent may impose) and
approval
and
approve
shall be construed accordingly;
|
|
(viii) |
assets
includes present and future properties,
revenues and rights of every description;
|
|
(ix) |
charter commitment
means, in relation to a vessel, any
charter or contract for the use, employment or operation of that vessel or the carriage of people and/or cargo or the provision of services by or from it and includes any agreement for pooling or sharing income derived from any such
charter or contract;
|
|
(x) |
control
of an entity means:
|
|
(A) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
|
(1) |
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 that entity; or
|
|
(2) |
appoint or remove all, or the majority, of the directors or other equivalent officers of that entity; or
|
|
(3) |
give directions with respect to the operating and financial policies of that entity with which the directors or other equivalent officers of that entity are
obliged to comply; or
|
|
(B) |
the holding beneficially of more than 50 per cent of the issued share capital of that entity (excluding any part of that issued share capital that carries no
right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over share capital shall be disregarded in determining the beneficial ownership of such share
capital);
|
|
(xi) |
the term
disposal
or
dispose
means a sale, transfer or other disposal (including by way of lease or loan but not including by way of loan of money) by a person of all or part of its
assets, whether by one transaction or a series of transactions and whether at the same time or over a period of time, but not the creation of a Security Interest;
|
|
(xii) |
the
equivalent
of an amount specified in a particular
currency (the
specified currency amount
) shall be construed as a reference to the amount of the other relevant currency which can be
purchased with the specified currency amount in the London foreign exchange market at or about 11 a.m. on the date the calculation falls to be made for spot delivery, as conclusively determined by the Agent (with the relevant exchange
rate of any such purchase being the
Agent’s spot rate of exchange
);
|
|
(xiii) |
a
government entity
means any government, state or
agency of a state;
|
|
(xiv) |
a
group of Lenders
or a
group of Finance Parties
includes all the Lenders or (as the case may be) all the Finance Parties;
|
|
(xv) |
a guarantee
means (other than in clause 18
(Guarantee and indemnity)
)
any
guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any
person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;
|
|
(xvi) |
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;
|
|
(xvii) |
an
obligation
means any duty, obligation or liability
of any kind;
|
|
(xviii) |
something being in the
ordinary course of business
of
a person means something that is in the ordinary course of that person’s current day-to-day operational business (and not merely anything which that person is entitled to do under its Constitutional Documents);
|
|
(xix) |
pay
or
repay
in clause 29
(Business restrictions)
includes by way of
set-off, combination of accounts or otherwise;
|
|
(xx) |
a
person
includes any individual, firm, company,
corporation, government entity or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
|
|
(xxi) |
a
regulation
includes any regulation, rule, official
directive, request or guideline (whether or not having the force of law but if not having the force of law, one with which a person habitually complies) of any governmental, intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation and, in relation to any Lender, includes (without limitation) any Basel II Regulation or Basel
ill
Regulation or any law or regulation which implements Reformed Basel III,
in each case which is
applicable to that Lender;
|
|
(xxii) |
right
means any right, privilege, power or remedy, any
proprietary interest in any asset and any other interest or remedy of any kind, whether actual or contingent, present or future, arising under contract or law, or in equity;
|
|
(xxiii) |
trustee, fiduciary and fiduciary duty
has in each case
the meaning given to such term under applicable law;
|
|
(xxiv) |
(i) the
liquidation, winding up, dissolution,
or
administration
of person or (ii) a
receiver
or
administrative receiver
or
administrator
in the context of insolvency proceedings or security enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous proceedings or any equivalent and analogous
person or appointee (respectively) under the law of the jurisdiction in which such person is established or incorporated or any jurisdiction in which such person carries on business including (in respect of proceedings) the seeking or
occurrences of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors; and
|
|
(xxv) |
a provision of law is a reference to that provision as amended or re-enacted.
|
|
(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) |
Where in this Agreement a provision includes a monetary reference level in one currency, unless a contrary indication appears, such reference level is
intended to apply equally to its equivalent in other currencies as of the relevant time for the purposes of applying such reference level to any other currencies.
|
|
(d) |
Section, clause and Schedule headings are for ease of reference only.
|
|
(e) |
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.
|
|
(f) |
A Default is continuing if it has not been remedied or waived.
|
1.3 |
Currency symbols and definitions
|
1.4 |
Third party rights
|
|
(a) |
Unless expressly provided to the contrary in a Finance Document for the benefit of a Finance Party or another Indemnified Person, a person who is not a party
to a Finance Document has no right under the Contracts (Rights of Third Parties) Act 1999 (the
Third Parties Act
)
to enforce or enjoy the benefit of any term of the relevant Finance Document.
|
|
(b) |
Any Finance Document may be rescinded or varied by the parties to it without the consent of any person who is not a party to it (unless otherwise provided by
this Agreement).
|
|
(c) |
An Indemnified Person who is not a party to a Finance Document may only enforce its rights under that Finance Document through a Finance Party and if and to
the extent and in such manner as the Finance Party may determine.
|
1.5 |
Finance Documents
|
1.6 |
Conflict of documents
|
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 an Obligor shall be 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 a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its
role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
|
|
(c) |
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
2.3 |
Commitment
|
3 |
Purpose
|
3.1 |
Purpose
|
3.2 |
Use of Commitment
|
|
(a) |
the third instalment of the Contract Price in the amount of the lesser of (i) $1,690,000 and (ii) the amount in dollars of the third instalment, payable under
the Building Contract;
|
|
(b) |
the fourth instalment of the Contract Price in the amount of the lesser of (i) $1,690,000 and (ii) the amount in dollars of the fourth instalment, payable
under the Building Contract;
|
|
(c) |
the fifth instalment of the Contract Price in the amount of the lesser of (i) $1,690,000 and (ii) the amount in dollars of the fifth instalment, payable by
under the Building Contract;
|
|
(d) |
the sixth instalment of the Contract Price in the amount of the lesser of (i) $1,690,000 and (ii) the amount in dollars of the sixth instalment, payable under
the Building Contract; and
|
|
(e) |
the seventh instalment of the Contract Price in the amount of the lesser of (i) $3,380,000 and (ii) the amount in dollars of the seventh instalment, payable
under the Building Contract.
|
3.3 |
Monitoring
|
4 |
Conditions of Utilisation
|
4.1 |
Initial conditions precedent
|
4.2 |
Conditions precedent before Delivery
|
4.3 |
Notice of satisfaction of conditions
|
4.4 |
Further conditions precedent
|
|
(a) |
on the date of the Utilisation Request and on the proposed Utilisation Date, no Default is continuing or would result from the proposed Utilisation; and
|
|
(b) |
in relation to each Utilisation, on the date of the Utilisation Request and on the proposed Utilisation Date, all of the representations set out in clause 19
(Representations)
(except the Ship Representations) are true.
|
4.5 |
Waiver of conditions precedent
|
5 |
Utilisation
|
5.1 |
Delivery of a Utilisation Request
|
5.2 |
Completion of a Utilisation Request
|
|
(a) |
A Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
|
(i) |
the proposed Utilisation Date is a Business Day falling on or before the Last Availability Date;
|
|
(ii) |
the currency and amount of the Utilisation comply with clause 5.3
(Currency and amount)
;
|
|
(iii) |
the proposed Interest Period complies with clause 10
(Interest
Periods)
;
and
|
|
(iv) |
it identifies the purpose for the Utilisation and that purpose complies with clause 3
(Purpose)
.
|
|
(b) |
Only one Advance may be requested in each Utilisation Request. Up to five Utilisation Requests may be made.
|
|
(c) |
The Commitment may be borrowed in up to five Advances.
|
5.3 |
Currency and amount
|
|
(a) |
The currency specified in a Utilisation Request must be dollars.
|
|
(b) |
The amount of the proposed Advance must be a minimum of $1,000,000 or, if less, the amount of the Active Facility less the amount of the outstanding Loan and
must not exceed (when aggregated with the outstanding Loan) the Active Facility.
|
|
(c) |
The amount of a proposed Advance specified in a Utilisation Request to be advanced under the Pre-Delivery Commitment shall not exceed the lower of:
|
|
(i) |
the amount in dollars equal to 100% of the Pre-Delivery Instalment which that Advance intended to finance;
|
|
(ii) |
the undrawn portion of the Commitment; and
|
|
(iii) |
the amount of the Active Facility less the outstanding amount of the Loan.
|
5.4 |
Lenders’ participation
|
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the Utilisation Date through
its Facility Office.
|
|
(b) |
The amount of each Lender’s participation in each Advance will be equal to the proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Advance.
|
|
(c) |
The Agent shall promptly notify each Lender of the amount of the Advance and the amount of its participation in the Advance, in each case by 11:00 a.m. on the
relevant Quotation Day.
|
|
(d) |
The Agent shall pay all amounts received by it in respect of each Advance (and its own participation in it, if any) to the Borrower or for its account or the
Builder, in each case in accordance with the instructions contained in the Utilisation Request.
|
6 |
Repayment
|
6.1 |
Repayment
|
7 |
Illegality, prepayment and cancellation
|
7.1 |
Illegality
|
|
(a) |
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
|
(b) |
upon the Agent notifying the Borrower, the Available Commitment of that Lender will be immediately cancelled; and
|
|
(c) |
to the extent that the Lender’s participation has not been assigned pursuant to clause 7.6
(Replacement of Lender),
the Borrower shall repay that Lender’s participation in the Loan on the last day of the Interest Period occurring after the Agent has notified the Borrower or, if
earlier, the date specified by the Lender in the notice delivered to the 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 repaid.
|
7.2 |
Voluntary cancellation
|
7.3 |
Voluntary prepayment
|
7.4 |
Right of cancellation and prepayment in relation to a single Lender
|
|
(a) |
If:
|
|
(i) |
any sum payable to any Lender by an Obligor is required to be increased under clause 13.2
(Tax gross-up)
;
or
|
|
(ii) |
any Lender claims indemnification from the Borrower under clause 13.3
(Tax indemnity)
or clause 14.1
(Increased costs)
,
|
|
(b) |
On receipt of a notice referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
|
(c) |
On the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above in relation to a Lender (or, if earlier, the
date specified by the Borrower in that notice), the Borrower shall repay that Lender’s participation in the Loan together with all interest and other amounts accrued under the Finance Documents which is then owing to it.
|
7.5 |
Right of cancellation in relation to a Defaulting Lender
|
|
(a) |
If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender give the Agent 15 Business
Days’ notice of cancellation of the Available Commitment of that Lender.
|
|
(b) |
On such notice becoming effective, the Available Commitment of the Defaulting Lender shall immediately be reduced to zero and the Agent shall as soon as
practicable after receipt of such notice, notify all the Lenders.
|
7.6 |
Replacement of Lender
|
|
(a) |
If:
|
|
(i) |
the Borrower becomes obliged to repay any amount in accordance with clause 7.1
(Illegality)
to any Lender; or
|
|
(ii) |
any of the circumstances set out in paragraph (a) of clause 7.4
(Right of cancellation and prepayment in relation to a single Lender)
apply to a Lender,
|
|
(A) |
the outstanding principal amount of such Lender’s participation in the Loan;
|
|
(B) |
all accrued interest owing to such Lender;
|
|
(C) |
the Break Costs which would have been payable to such Lender pursuant to clause 11.5
(Break Costs)
had the Borrower prepaid in full that Lender’s participation in the Loan on the date of the assignment; and
|
|
(D) |
all other amounts payable to that Lender under the Finance Documents on the date of the assignment.
|
|
(b) |
The replacement of a Lender pursuant to this clause 7.6 shall be subject to the following conditions:
|
|
(i) |
the Borrower shall have no right to replace the Agent or the Security Agent;
|
|
(ii) |
neither the Agent nor any Lender shall have any obligation to find a Replacement Lender;
|
|
(iii) |
in no event shall the Lender replaced under this clause 7.6 be required to pay or surrender any of the fees received by such Lender pursuant to the Finance
Documents; and
|
|
(iv) |
the Lender shall only be obliged to assign its rights pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary “know your
customer” or other similar checks under all applicable laws and regulations in relation to that assignment.
|
|
(c) |
A Lender shall perform the checks described in paragraph (b)(iv) above as soon as reasonably practicable following delivery of a notice referred to in
paragraph (a) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.
|
7.7 |
Mandatory Pre-Delivery cancellation
|
|
(a) |
If, prior to Delivery:
|
|
(i) |
the Borrower’s Ship is sold whilst under construction (irrespective of whether its delivery will be performed at a later date and not at the time of signing
the relevant sale contract);
|
|
(ii) |
the Building Contract is novated or its assigned by the Borrower;
|
|
(iii) |
the Building Contract is for any reason and by any method cancelled, terminated or rescinded or is not, or ceases to be, legal, valid, binding and enforceable
obligations of the Builder or the Borrower or it is or it becomes unlawful for the Builder or the Borrower to perform its respective obligations under it; or
|
|
(iv) |
a competent court or arbitration panel decides that the Building Contract has
been validly cancelled, terminated or rescinded; or
|
|
(v) |
the Building Contract is varied in a way prohibited by any Finance Document; or
|
|
(vi) |
any of the following events or circumstances occurs:
|
|
(A) |
it is or becomes unlawful for the Refund Guarantor to perform any of its obligations under the Refund Guarantee; or
|
|
(B) |
the Refund Guarantor or the Builder becomes subject to any of the events or circumstances described in clause 30.7
(Insolvency)
or clause 30.8
(Insolvency proceedings)
;
or
|
|
(vii) | Delivery has not occurred by the Last Availability Date, |
|
(b) |
The Borrower shall on the date such cancellation takes effect prepay the Loan in full.
|
7.8 |
Total Loss
|
7.9 |
Automatic cancellation
|
8 |
Restrictions
|
8.1 |
Notices of cancellation and prepayment
|
8.2 |
Interest and other amounts
|
8.3 |
No reborrowing
|
8.4 |
Prepayment in accordance with Agreement
|
8.5 |
No reinstatement of Commitments
|
8.6 |
Agent’s receipt of notices
|
8.7 |
Effect of repayment and prepayment on Commitments
|
8.8 |
Application of cancellations
|
8.9 |
Application of prepayments
|
|
(a) |
Any prepayment required as a result of a cancellation in full of an individual Lender’s Commitment under clause 7.1
(Illegality)
or clause 7.4
(Right of cancellation and
|
|
(b) |
Any other prepayment shall be applied pro rata to each Lender’s participation in the Loan.
|
8.10 |
Removal of Lender from security
|
9 |
Interest
|
9.1 |
Calculation of interest
|
|
(a) |
Margin; and
|
|
(b) |
LIBOR for the relevant Interest Period.
|
9.2 |
Payment of interest
|
9.3 |
Default interest
|
|
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document to a Finance Party on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (c) below, is 2 per cent per annum higher than the rate which would have been payable if the overdue amount had,
during the period of non-payment, constituted the Loan for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).
|
|
(b) |
Any interest accruing under this clause 9.3 shall be immediately payable by the Obligor on demand by the Agent.
|
|
(c) |
If any overdue amount consists of all or part of the Loan (or any relevant part of it) which became due on a day which was not the last day of an Interest
Period relating to the Loan or the relevant part of it:
|
|
(i) |
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or
the relevant part of it; and
|
|
(ii) |
the rate of interest applying to the overdue amount during that first Interest Period shall be 2 per cent per annum higher than the rate which would have
applied if the overdue amount had not become due.
|
|
(d) |
Default interest payable under this clause 9.3 (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain immediately due and payable.
|
9.4 |
Notification of rates of interest
|
|
(a) |
The Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.
|
|
(b) |
The Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan (or any relevant part of it).
|
10 |
Interest Periods
|
10.1 |
Interest Periods
|
|
(a) |
The first Interest Period for the first Advance shall have a duration equal to the period commencing on the Utilisation Date for such Advance and ending on
the date three months after the date of this Agreement. Each subsequent Interest Period for the Loan shall have a duration of three months.
|
|
(b) |
The first Interest Period for the Loan shall start on the first Utilisation Date, the first Interest Period for the second or any later Advance shall start on
the relevant Utilisation Date and end on the last day of the then current Interest Period for the balance of the Loan and each subsequent Interest Period for the Loan shall start on the last day of its preceding Interest Period.
|
|
(c) |
No Interest Period shall extend beyond the Repayment Date.
|
10.2 |
Non-Business Days
|
11 |
Changes to the calculation of interest
|
11.1 |
Unavailability of Screen Rate
|
|
(a) |
If no Screen Rate is available for LIBOR for an Interest Period, LIBOR shall be the Interpolated Screen Rate for a period equal in length to that Interest
Period.
|
|
(b) |
If no Screen Rate is available for LIBOR for:
|
|
(i) |
dollars; or
|
|
(ii) |
the relevant Interest Period and it is not possible to calculate the Interpolated Screen Rate,
|
11.2 |
Market disruption
|
11.3 |
Cost of funds
|
|
(a) |
If this clause 11.3 applies, the rate of interest on each Lender’s share of the Loan or relevant part of it for the Interest Period shall be the percentage
rate per annum which is the sum of:
|
|
(i) |
the Margin;
|
|
(ii) |
the rate notified to the Agent by that Lender as soon as practicable and in any event within ten Business Days of the first day of that Interest Period (or,
if earlier, on the date falling ten Business Days before the date on which interest is due to be
|
|
(b) |
If this clause 11.3 applies and the Agent or the Borrower so require, the Agent and the Borrower shall enter into negotiations (for a period of not more than
thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
|
|
(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.
|
|
(d) |
If this clause 11.3 applies pursuant to clause 11.2
(Market
disruption)
and:
|
|
(i) |
a Lender’s Funding Rate is less than LIBOR; or
|
|
(ii) |
a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,
|
11.4 |
Notification to Borrower
|
11.5 |
Break Costs
|
|
(a) |
The Borrower shall, within five Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of the
Loan or any relevant part of it or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Loan or that relevant part of it or Unpaid Sum.
|
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount and basis of calculation of its
Break Costs for any Interest Period in which they accrue.
|
12 |
Fees
|
12.1 |
Commitment commission
|
|
(a) |
The Borrower shall pay to the Agent (for the account of each Lender) a fee in dollars computed at the rate of 2.25 per cent per annum on that Lenders
Available Commitment calculated from the date of this Agreement.
|
|
(b) |
The Borrower shall pay the accrued commitment commission on 5 June 2018 (the
start date
),
on the date falling three Months after the start date, on the last day of each successive
period of three Months thereafter, on the Last Availability Date and, if cancelled in full, on the cancelled amount of the relevant Lender’s Available Commitment at the time the cancellation is effective.
|
|
(c) |
No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a
Defaulting Lender.
|
12.2 |
Arrangement fee
|
12.3 |
Termination fee
|
13 |
Tax gross-up and indemnities
|
13.1 |
Definitions
|
|
(a) |
In this Agreement:
|
|
(b) |
Unless a contrary indication appears, in this clause 13 a reference to
“determines”
or
“determined”
means a determination made in the absolute discretion of the person
making the determination.
|
13.2 |
Tax gross-up
|
|
(a) |
Each Obligor shall make all payments to be made by it under any Finance Document 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 Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the 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 under the relevant Finance Document 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 Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing
authority.
|
13.3 |
Tax indemnity
|
|
(a) |
Each Obligor who is a Party shall (within five Business Days of demand by the Agent) 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 13.2
(Tax
gross-up)
;
or
|
|
(B) |
relates to a FATCA Deduction required to be made by a Party or any Obligor which is not a Party.
|
|
(c) |
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given,
rise to the claim, following which the Agent shall notify the Borrower.
|
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this clause 13.3, notify the Agent.
|
13.4 |
indemnities on after Tax basis
|
|
(a) |
If and to the extent that any sum payable to any Protected Party by the Borrower under any Finance Document by way of indemnity or reimbursement proves to be
insufficient, by reason of any Tax suffered thereon, for that Protected Party to discharge the corresponding liability to a third party, or to reimburse that Protected Party for the cost incurred by it in discharging the corresponding
liability to a third party, the Borrower shall pay that Protected Party such additional sum as (after taking into account any Tax suffered by that Protected Party on such additional sum) shall be required to make up the relevant
deficit.
|
|
(b) |
If and to the extent that any sum (the
Indemnity Sum
)
constituting (directly or indirectly) an indemnity to any Protected Party but paid by the Borrower to any person other than that
Protected Party, shall be treated as taxable in the hands of the Protected Party, the Borrower shall pay to that Protected Party such sum (the
Compensating Sum
)
as (after taking into account any Tax suffered by that Protected Party on the Compensating Sum)
shall reimburse that Protected Party for any Tax suffered by it in respect of the Indemnity Sum.
|
|
(c) |
For the purposes of paragraphs (a) and (b) above, a sum shall be deemed to be taxable in the hands of a Protected Party if it falls to be taken into account
in computing the profits or gains of that Protected Party for the purposes of Tax and, if so, that Protected Party shall be deemed to have suffered Tax on the relevant sum at the rate of Tax applicable to that Protected Party’s profits
or gains for the period in which the payment of the relevant sum falls to be taken into account for the purposes of such Tax.
|
13.5 |
Stamp taxes
|
13.6 |
Value added tax
|
|
(a) |
All amounts expressed in a Finance Document to be payable 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 to a Finance Document other than the
Recipient (the
Subject 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 Subject 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 paragraph (i) applies) promptly pay to the Subject 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 Subject 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 it 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 thereof 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 13.6 to any party shall, at any time when such party is treated as a member of a group for VAT purposes, include (where
appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994).
|
|
(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.
|
13.7 |
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;
|
|
(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 paragraph (a)(i) 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 paragraph
(a)(iii) 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
paragraphs (a)(i) or (a)(ii) 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 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 date on which any other Lender becomes a Party as a Lender, that date; or
|
|
(iii) |
where the Borrower is not a US Tax Obligor, the date of a request from the Agent,
|
|
(A) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
|
(B) |
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or
that other law or regulation.
|
|
(f) |
The 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 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 Agent unless it is unlawful for the
Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.
|
|
(h) |
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraphs
(e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
13.8 |
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 the Borrower and the Agent and the Agent shall notify the other Finance Parties.
|
14 |
Increased Costs
|
14.1 |
Increased costs
|
|
(a) |
Subject to clause 14.3
(Exceptions),
the Borrower
shall, within five Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party or any of its Affiliates which: arises as a result of
|
|
(i) |
arirses as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii)
compliance with any law or regulation made after the date of this Agreement; and/or
|
|
(ii) |
is a Basel III Increased Cost; and/or
|
|
(iii) |
is a Reformed Basel III Increased Cost.
|
|
(b) |
In this Agreement
Increased Costs
means:
|
|
(i) |
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
|
|
(ii) |
an additional or increased cost; or
|
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
14.2 |
Increased cost claims
|
|
(a) |
A Finance Party intending to make a claim pursuant to clause 14.1
(Increased costs)
shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.
|
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Agent and/or the Borrower through the Agent, provide a certificate confirming the
amount of its Increased Costs and the basis of calculation of such amount.
|
14.3 |
Exceptions
|
|
(a) |
Clause 14.1
(Increased costs)
does not apply to the
extent any Increased Cost is:
|
|
(i) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
|
(ii) |
attributable to a FATCA Deduction required to be made by a Party;
|
|
(iii) |
compensated for by clause 13.3
(Tax indemnity)
(or
would have been compensated for under clause 13.3
(Tax indemnity)
but was not so compensated solely because any of the exclusions
in paragraph (b) of clause 13.3
(Tax indemnity)
applied);
|
|
(iv) |
compensated for by the payment to a Lender under clause 15.10
(Mandatory Cost)
;
and
|
|
(v) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
|
(b) |
In paragraph (a) above, a reference to a Tax Deduction has the same meaning given to the term in clause 13.1
(Definitions)
.
|
15 |
Other indemnities
|
15.1 |
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; and/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.
|
15.2 |
Other indemnities
|
|
(a) |
the occurrence of any Event of Default;
|
|
(b) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any and all Losses arising as a result
of clause 38
(Sharing among the Finance Parties)
;
|
|
(c) |
funding, or making arrangements to fund, its participation in a Utilisation requested by the Borrower in a Utilisation Request but not made by reason of the
operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
|
(d) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
15.3 |
Indemnity to the Agent and the Security Agent
|
|
(a) |
any and all Losses (together with any applicable VAT) incurred by the Agent or the Security Agent (acting reasonably) as a result of:
|
|
(i) |
investigating any event which it reasonably believes is a Default;
|
|
(ii) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
|
(iii) |
instructing lawyers, accountants, tax advisers, insurance consultants, ship managers, valuers, surveyors or other professional advisers or experts as
permitted under the Finance Documents; or
|
|
(iv) |
any action taken by the Agent or the Security Agent or any of its or their representatives, agents or contractors in connection with any powers conferred by
any Security Document to remedy any breach of any Obligor’s obligations under the Finance Documents, and
|
|
(b) |
any and all Losses (including, without limitation, in respect of liability for negligence or any other category of liability whatsoever) (together with any
applicable VAT) incurred by the Agent or the Security Agent (otherwise than by reason of the Agent’s or the Security Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to clause 39.11
(Disruption to payment systems etc.)
notwithstanding the Agent’s or the Security Agent’s negligence, gross negligence or any other
category of liability whatsoever but not including any claim based on the fraud of the Agent in acting as Agent or the Security Agent under the Finance Documents.
|
15.4 |
Indemnity concerning security
|
|
(a) |
The Borrower shall (or shall procure that another Obligor will) promptly indemnify each Indemnified Person against any and all Losses (together with any
applicable VAT) incurred by it as a result of:
|
|
(i) |
any failure by the Borrower to comply with its obligations under clause 17
(Costs and expenses)
or any similar provision in any other Finance Document;
|
|
(ii) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
|
(iii) |
the taking, holding, protection or enforcement of the Transaction Security;
|
|
(iv) |
the exercise or purported exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and/or any other Finance
Party and each Receiver and each Delegate by the Finance Documents or by law (otherwise, in each case, than by reason of the relevant Security Agent’s and/or
|
|
(v) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
|
(vi) |
any claim (whether relating to the environment or otherwise) made or asserted against the Indemnified Person which would not have arisen but for the execution
or enforcement of one or more Finance Documents (unless and to the extent it is caused by the gross negligence or wilful misconduct of that Indemnified Person);
|
|
(vii) |
instructing lawyers, accountants, tax advisers, insurance consultants, ship managers, valuers, surveyors or other professional advisers or experts as
permitted under the Finance Documents; or
|
|
(viii) |
(in the case of the Security Agent and/or any other Finance Party, any Receiver and any Delegate) acting as Security Agent and/or as holder of any of the
Transaction Security, Receiver or Delegate under the Finance Documents or which otherwise relates to the Charged Property (otherwise, in each case, than by reason of the relevant Security Agent’s and/or other Finance Party’s, Receiver’s
or Delegate’s gross negligence or wilful misconduct).
|
|
(b) |
The Security Agent may, in priority to any payment to the other Finance Parties, indemnify itself out of the Charged Property in respect of, and pay and
retain, all sums necessary to give effect to the indemnity in this clause 15.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.
|
15.5 |
Continuation of indemnities
|
15.6 |
Third Parties Act
|
|
(a) |
Each Indemnified Person may rely on the terms of clause 15.4
(Indemnity
concerning security)
and clauses 13
(Tax gross-up and indemnities)
and 15.7
(Interest)
insofar as it relates to interest on, or the calculation of, any amount demanded by that Indemnified Person under clause 15.4
(Indemnity concerning security),
subject to clause 1.4
(Third
party rights)
and the provisions of the Third Parties Act.
|
|
(b) |
Where an Indemnified Person (other than a Finance Party) (the
Relevant
Beneficiary
)
who is:
|
|
(i) |
appointed by a Finance Party under the Finance Documents;
|
|
(ii) |
an Affiliate of any such person or that Finance Party; or
|
|
(iii) |
an officer, director, employee, adviser, representative or agent of any of the above persons or that Finance Party,
|
|
(A) |
the Borrower shall at the same time as the relevant Third Party Claim is due to the Relevant Beneficiary pay to that Finance Party a sum in the amount of that
Third Party Claim;
|
|
(B) |
payment of such sum to that Finance Party shall, to the extent of that payment, satisfy the corresponding obligations of the Borrower to pay the Third Party
Claim to the Relevant Beneficiary; and
|
|
(C) |
if the Borrower pays the Third Party Claim direct to the Relevant Beneficiary, such payment shall, to the extent of that payment, satisfy the corresponding
obligations of the Borrower to that Finance Party under sub-paragraph (A) above.
|
15.7 |
Interest
|
15.8 |
Exclusion of liability
|
15.9 |
Sanctions
|
|
(a) |
Each Obligor shall, within five Business Days of demand by a Finance Party, indemnify such Finance Party against any cost, loss or liability incurred by it as
a result of any civil penalty or fine against, and all costs and expenses (including counsel fees and disbursements) incurred in connection with the defence thereof by, the Agent or the relevant Finance Party as a result of conduct of
any Obligor or any of its partners, directors, officers, employees, agents or advisors, that violates any applicable Sanctions.
|
|
(b) |
The indemnity in clause 15.9(a) shall cover any Losses incurred by each Finance Party in any jurisdiction arising or asserted under or in connection with any
law relating to any applicable Sanctions.
|
15.10 |
Mandatory Cost
|
|
(a) |
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the
same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
|
(b) |
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other
requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other
governmental authority or agency which replaces all or any of their functions),
|
16 |
Mitigation by the Lenders
|
16.1 |
Mitigation
|
|
(a) |
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in the
Facility ceasing to be available or any amount becoming payable under or pursuant to, or cancelled pursuant to, any of clause 7.1
(Illegality),
clause 13
(Tax gross-up and indemnities),
clause 14
(Increased costs)
or clause 15.10
(Mandatory Cost)
including (but not limited to) assigning
its rights under the Finance Documents to another Affiliate or Facility Office.
|
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
16.2 |
Limitation of liability
|
|
(a) |
The Borrower shall promptly indemnify each Finance Party for all costs and expenses incurred by that Finance Party as a result of steps taken by it under
clause 16.1
(Mitigation)
.
|
|
(b) |
A Finance Party is not obliged to take any steps under clause 16.1
(Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
17 |
Costs and expenses
|
17.1 |
Transaction expenses
|
|
(a) |
this Agreement and any other documents referred to in this Agreement and the Security Documents;
|
|
(b) |
any other Finance Documents executed or proposed to be executed after the date of this Agreement; or
|
|
(c) |
any Security Interest expressed or intended to be granted by a Finance Document.
|
|
17.2 |
Amendment costs
|
|
(a) |
an Obligor requests an amendment, waiver or consent; or
|
|
(b) |
an amendment is required pursuant to clause 39.10
(Change of
currency)
,
|
17.3 |
Enforcement, preservation and other costs
|
|
(a) |
the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any proceedings instituted by or against
any Indemnified Person as a consequence of taking or holding the Security Documents or enforcing those rights; or
|
|
(b) |
any inspection carried out under clause 24.6
(Inspection)
or
any survey carried out under clause 24.8
(Survey report)
at the times provided under that clause that the relevant costs must be
borne by the Borrower.
|
18 |
Guarantee and indemnity
|
18.1 |
Guarantee and
indemnity
|
|
(a) |
guarantees to the Security Agent (as trustee for the Finance Parties) and the other Finance Parties punctual performance by each other Obligor of all such
Obligor’s obligations under the Finance Documents;
|
|
(b) |
undertakes with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties that whenever another Obligor (other than any Charterer,
the Sub-charterer or CSM) does not pay any amount when due under or in connection with any Finance Document, it shall immediately on demand pay that amount as if it was the principal obligor; and
|
|
(c) |
agrees with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties 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 another Obligor (other than any
Charterer, the Sub-charterer or CSM) not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by such Obligor under any Finance Document on the date when it would have been due. The
amount payable by a Guarantor under this indemnity will not exceed the amount that Guarantor would have had to pay under this clause 18.1 if the amount claimed had been recoverable on the basis of a guarantee.
|
18.2 |
Continuing guarantee
|
18.3 |
Reinstatement
|
18.4 |
Waiver of defences
|
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any other Obligor;
|
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over
assets of, any Obligor
|
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an 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.
|
18.5 |
Guarantors intent
|
18.6 |
Immediate recourse
|
18.7 |
Appropriations
|
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance 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 neither Guarantor shall be entitled to the benefit of the same; and
|
|
(b) |
hold in an interest-bearing suspense account any moneys received from a Guarantor or on account of either Guarantor’s liability under this clause 18.
|
18.8 |
Deferral of Guarantors’ rights
|
|
(a) |
Until all amounts which may be or become payable by the Obligors (other than any Charterer, the Sub-charterer or CSM) under or in connection with the Finance
Documents have been irrevocably paid in full and unless the Agent otherwise directs, neither of the Guarantors will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or
by reason of any amount being payable, or liability arising, under this clause 18:
|
|
(i) |
to be indemnified by another Obligor;
|
|
(ii) |
to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;
|
|
(iii) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or
of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
|
(iv) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which that Guarantor has
given a guarantee, undertaking or indemnity under this clause 18;
|
|
(v) |
to exercise any right of set-off against any other Obligor; and/or
|
|
(vi) |
to claim or prove as a creditor of any other Obligor in competition with any Finance Party.
|
|
(b) |
If a Guarantor receives any benefit, payment or distribution in relation to such rights it will promptly pay an equal amount to the Agent for application in
accordance with clause 39
(Payment mechanics)
.
This only applies until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full.
|
18.9 |
Additional security
|
18.10 |
Guarantors’ rights and obligations
|
|
(a) |
The obligations of each Guarantor under this guarantee and under this Agreement are joint and several. Failure by a Guarantor to perform its obligations
under this guarantee and/or this Agreement shall constitute a failure by both of the Guarantors.
|
|
(b) |
Each Guarantor irrevocably and unconditionally jointly and severally with the other Guarantor:
|
|
(i) |
agrees that it is responsible for the performance of the obligations of the other Guarantor under this guarantee and this Agreement;
|
|
(ii) |
acknowledges and agrees that it is a principal and original debtor in respect of all amounts due from both of the Guarantors under this guarantee and under
this Agreement; and
|
|
(iii) |
agrees with the Finance Parties that, if any obligation of the other Guarantor under this guarantee and this Agreement is or becomes unenforceable, invalid or
illegal for any reason it will, as an independent and primary obligation, indemnify the Finance Parties or any of them immediately on demand against any and all Losses a Finance Party incurs as a result of the other Guarantor not paying
any amount which would, but for such unenforceability, invalidity or illegality, have been payable by that other Guarantor under this guarantee and/or this Agreement. The amount payable under this indemnity shall be equal to the amount
which a Finance Party would otherwise have been entitled to recover.
|
19 |
Representations
|
19.1 |
Status
|
|
(a) |
Each Obligor is a corporation, duly incorporated and validly existing under the law of its Original Jurisdiction.
|
|
(b) |
Each Obligor has power and authority to own its assets and to carry on its business as it is now being conducted within the scope of its purpose.
|
|
(c) |
More specifically, CSM has remained at all times in compliance with the terms of the Monaco Law No. 767 of July 8, 1964 concerning the cancellation of
authorisations to incorporate limited liability companies, which entails it has not:
|
|
(i) |
without legitimate cause, remained with no true activity, in conformity with its “statuts” for more than two years;
|
|
(ii) |
remained without due installation and personnel enabling the normal conduct of its business as authorised by the government of the Principality of Monaco;
|
|
(iii) |
conducted an activity not in conformity with its “statuts”; or
|
|
(iv) |
in any manner or for any reason, allowed non declared or non authorised activities to be undertaken or domiciled in its premises knowingly tolerated such,
|
19.2 |
Binding obligations
|
|
(a) |
the obligations expressed to be assumed by each Obligor in each Transaction Document to which it is, or is to be, a party are or, when entered into by it,
will be legal, valid, binding and enforceable obligations; and
|
|
(b) |
(without limiting the generality of paragraph (a) above) each Security Document to which an Obligor is, or will be, a party, creates or will create the
Security Interests which that Security Document purports to create and those Security Interests are or will be valid and effective.
|
19.3 |
Non-conflict
|
|
(a) |
any law or regulation applicable to any Obligor;
|
|
(b) |
the Constitutional Documents of any Obligor; or
|
|
(c) |
any agreement or other instrument binding upon any Obligor or its assets,
|
19.4 |
Power and authority
|
|
(a) |
Each Obligor has the power to enter into, perform and deliver and comply with its obligations under, and has taken all necessary actions to authorise its
entry into, performance and delivery of, and compliance with, each Transaction Document to which it is, or is to be, a party and each of the transactions contemplated by those documents.
|
|
(b) |
No limitation on any Obligor’s powers to borrow, create security or give guarantees will be exceeded as a result of any transaction under, or the entry into
of, any Transaction Document to which such Obligor is, or is to be, a party.
|
19.5 |
Validity and admissibility in evidence
|
|
(a) |
All Authorisations required:
|
|
(i) |
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations under each Transaction Document to which it is a party;
|
|
(ii) |
to make each Transaction Document to which it is a party admissible in evidence in its Relevant Jurisdictions; and
|
|
(iii) |
to ensure that the Transaction Security has the priority and ranking contemplated in the Security Documents,
|
|
(b) |
All Authorisations necessary for the conduct of the business, trade and ordinary activities of each Obligor have been obtained or effected and are in full
force and effect, if failure to obtain or effect those Authorisations is reasonably likely to have a Material Adverse Effect.
|
19.6 |
Governing law and enforcement
|
|
(a) |
The choice of governing law of any Transaction Document will be recognised and enforced in each Obligor’s Relevant Jurisdictions.
|
|
(b) |
Any judgment obtained in relation to any Transaction Document in the jurisdiction of the governing law of that Transaction Document will be recognised and
enforced in the relevant Obligor’s Relevant Jurisdictions.
|
19.7 |
No misleading information
|
|
(a) |
Any factual information contained in the Information Package is true and accurate in all material respects as at the date of the relevant report or document
containing the information or (as the case may be) as at the date the information is expressed to be given.
|
|
(b) |
Any financial projection or forecast contained in the Information Package has been prepared on the basis of recent historical information and on the basis of
reasonable assumptions and was fair (as at the date of the relevant report or document containing the projection or forecast) and arrived at after careful consideration.
|
|
(c) |
The expressions of opinion or intention provided by or on behalf of an Obligor for the purposes of the Information Package were made after careful
consideration and (as at the date of the relevant report or document containing the expression of opinion or intention) were fair and based on reasonable grounds.
|
|
(d) |
No event or circumstance has occurred or arisen and no information has been omitted from the Information Package and no information has been given or withheld
that results in the information, opinions, intentions, forecasts or projections contained in the Information Package being untrue or misleading in any material respect.
|
|
(e) |
For the purposes of this clause 19.7,
Information Package
means
any information provided by any Obligor to any of the Finance Parties in connection with the Transaction Documents or the transactions referred to in them.
|
19.8 |
Pari passu ranking
|
19.9 |
Ranking and effectiveness of security
|
|
(a) |
the Transaction Security has (or will have when the relevant Security Documents have been executed) the priority which it is expressed to have in the Security
Documents;
|
|
(b) |
the Charged Property is not subject to any Security Interest other than Permitted Security Interests; and
|
|
(c) |
the Transaction Security will constitute perfected security on the assets described in the Security Documents.
|
19.10 |
Centre of main interests and establishments
|
19.11 |
Ownership of Charged Property
|
19.12 |
No insolvency
|
19.13 |
No filing or stamp taxes
|
19.14 |
Deduction of Tax
|
19.15 |
Tax compliance
|
|
(a) |
No Obligor (other than any Charterer, the Sub-charterer and CSM) is materially overdue in the filing of any Tax returns or overdue in the payment of any
amount in respect of Tax exceeding $500,000 (or its equivalent in any other currency).
|
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against any Obligor (other than any Charterer, the Sub-charterer or
CSM) with respect to Taxes such that a liability of, or claim against, any Obligor (other than any Charterer, the Sub-charterer and CSM) is reasonably likely to arise for an amount for which adequate reserves have not been provided and
which are reasonably expected to have a Material Adverse Effect.
|
|
(c) |
Each Obligor is resident for Tax purposes only in its Original Jurisdiction.
|
19.16 |
Other Tax matters
|
19.17 |
Pension exposure
|
19.18 |
No Default
|
|
(a) |
No Default is continuing or is reasonably expected to result from the making of any Utilisation or the entry into, the performance of, or any transaction
contemplated by, any Transaction Document.
|
|
(b) |
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination
or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on any Obligor or to which any Obligor’s assets are subject which
is likely to have a Material Adverse Effect.
|
19.19 |
No proceedings
|
|
(a) |
Except as advised in writing to the Agent prior to the date of this Agreement, no litigation, arbitration or administrative proceedings or investigations of,
or before, any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a
|
|
(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 is reasonably
likely to have a Material Adverse Effect has (to the best of any Obligor’s knowledge and belief (having made due and careful enquiry)) been made against any Obligor or any other Group Member.
|
19.20 |
No breach of laws
|
|
(a) |
No Obligor or other Group Member has breached any law or regulation.
|
|
(b) |
No labour dispute is current or, to the best of any Obligor’s knowledge and belief (having made due and careful enquiry), threatened against any Obligor or
other Group Member which is reasonably expected to have a Material Adverse Effect.
|
19.21 |
Anti-corruption law
|
19.22 |
Security and Financial Indebtedness
|
|
(a) |
No Security Interest exists over all or any of the present or future assets of any Obligor in breach of this Agreement.
|
|
(b) |
No Obligor has any Financial Indebtedness outstanding in breach of this Agreement.
|
19.23 |
Shares
|
|
(a) |
The shares of the Borrower are fully paid and not subject to any option to purchase or similar rights.
|
|
(b) |
The Constitutional Documents of the Borrower do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Security
Documents.
|
|
(c) |
There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share
or loan capital of the Borrower (including any option or right of pre-emption or conversion).
|
19.24 |
Ownership of Obligors
|
19.25 |
Listing
|
19.26 |
Accounting Reference Date
|
19.27 |
No adverse consequences
|
|
(a) |
It is not necessary under the laws of the Relevant Jurisdictions of any Obligor:
|
|
(i) |
in order to enable any Finance Party to enforce its rights under any Finance Document to which it is, or is to be, a party; or
|
|
(ii) |
by reason of the execution of any Finance Document or the performance by any Obligor of its obligations under any Finance Document,
|
|
(b) |
No Finance Party is or will be deemed to be resident, domiciled or carrying on business in any Relevant Jurisdiction of any Obligor by reason only of the
execution, performance and/or enforcement of any Finance Document.
|
19.28 |
Copies of documents
|
19.29 |
No breach, etc of any Building Contract Document
|
|
(a) |
No Obligor nor (so far as the Obligors are aware) any other person is in breach of any Building Contract Document to which it is a party nor has anything
occurred which entitles or may entitle any party to rescind or terminate it or decline to perform their obligations under it or which would render it illegal, invalid or unenforceable.
|
|
(b) |
None of the events set out in clause 7.7
(Mandatory
Pre-delivery Cancellation)
has occurred.
|
|
(c) |
No dispute has occurred under:
|
|
(i) |
any of the Building Contract Documents; or
|
|
(ii) |
any other shipbuilding contract relating to the construction of any other vessel of any Group Member or any Obligor’s Affiliate by the Builder or under any
refund guarantee issued in respect of the obligations of the Builder under that shipbuilding contract.
|
19.30 |
No immunity
|
19.31 |
Address commission
|
19.32 |
Sanctions
|
|
(a) |
No Obligor, nor any of its Affiliates nor any of their respective directors, officers, employees, agents or representatives:
|
|
(i) |
has breached any Sanctions;
|
|
(ii) |
is a Restricted Person; or
|
|
(iii) |
has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions.
|
|
(b) |
No proceeds of the Loan:
|
|
(i) |
shall be made available, directly or indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or indirectly, applied in a
manner or for a purpose prohibited by applicable Sanctions; or
|
|
(ii) |
will be used by any Obligor:
|
|
(A) |
to finance equipment or sectors under embargo decisions of the United Nations or the World Bank; or
|
|
(B) |
in breach of the provisions of any Sanctions.
|
19.33 |
No Money Laundering
|
19.34 |
Environmental matters
|
|
(a) |
No Environmental Law applicable to any Fleet Vessel and/or any Obligor or other Group Member has been violated.
|
|
(b) |
All consents, licences and approvals required under such Environmental Laws have been obtained and are currently in force.
|
|
(c) |
No Environmental Claim has been made or, to the best of any Obligor’s knowledge and belief (having made due and careful enquiry), is threatened or pending
against any Obligor or other Group Member or any Fleet Vessel where that claim might have a Material Adverse Effect and there has been no Environmental Incident which has given, or is reasonably expected to give, rise to such a claim.
|
19.35 |
No breach of any Charter Document
|
19.36 |
Collateral Ship status
|
|
(a) |
registered in the name of the Astarte Guarantor through the relevant Registry as a ship under the laws and flag of the relevant Flag State;
|
|
(b) |
operationally seaworthy and in every way fit for service;
|
|
(c) |
classed with the relevant Classification free of all requirements and recommendations of the relevant Classification Society; and
|
|
(d) |
insured in the manner required by the Finance Documents.
|
19.37 |
Collateral Ship’s employment
|
|
(a) |
have been delivered, and accepted for service, under the relevant Charter; and
|
|
(b) |
save for the relevant Charter, be free of any other charter commitment which, if entered into after that date, would require approval under the Finance
Documents.
|
19.38 |
Times when representations are made
|
|
(a) |
All of the representations and warranties set out in this clause 19 are deemed to be made on the dates of:
|
|
(i) |
this Agreement;
|
|
(ii) |
the first Utilisation Request; and
|
|
(iii) |
the first Utilisation.
|
|
(b) |
The Repeating Representations are deemed to be made on the dates of each subsequent Utilisation Request and each subsequent Utilisation Date and the first day
of each Interest Period.
|
|
(c) |
Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances
existing at the date the representation or warranty is deemed to be made.
|
20 |
Information undertakings
|
20.1 |
Undertaking to comply
|
20.2 |
Definitions
|
20.3 |
Financial statements
|
|
(a) |
The Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests) as soon as the same become available, but in any
event within 120 days after the end of each Financial Year (but commencing with the Financial Year ending 31 December 2018) the audited consolidated financial statements of the Top Ships Guarantor for that Financial Year.
|
|
(b) |
The Borrower shall supply to the Agent as soon as the same become available, but in any event within 90 days after the end of the first financial half-year of
each of its or, as the case may be, the Top Ships Guarantor’s Financial Years (but commencing with the financial half-year ending 31 December 2018):
|
|
(i) |
the unaudited (or audited if available) financial statements of the Borrower for that financial half-year; and
|
|
(ii) |
the unaudited (or audited if available) consolidated financial statements of the Top Ships Guarantor for that financial half-year.
|
204 |
Provision and contents of Compliance Certificate
|
|
(a) |
The Borrower shall supply a Compliance Certificate to the Agent with each set of Annual Financial Statements and each set of Semi-Annual Financial Statements,
in each case, delivered pursuant to clause 20.3
(Financial statements)
.
|
|
(b) |
Each Compliance Certificate shall set out (in reasonable detail) computations as to compliance with clause 21
(Financial covenants)
.
|
|
(c) |
Each Compliance Certificate shall be signed by a duly authorised signatory of the Top Ships Guarantor.
|
20.5 |
Requirements as to financial statements
|
|
(a) |
The Borrower shall procure that each set of Annual Financial Statements and Semi-annual Financial Statements includes a profit and loss account, a balance
sheet and a cashflow statement and that, in addition, each set of Annual Financial Statements shall be audited by the Auditors.
|
|
(b) |
Each set of financial statements delivered pursuant to clause 20.3
(Financial statements)
shall:
|
|
(i) |
be prepared in accordance with GAAP; and
|
|
(ii) |
fairly present, and be certified by a director of the relevant company as fairly presenting, its financial condition and operations as at the date as at which
those financial statements were drawn up and, in the case of the Annual Financial Statements, shall be accompanied by any letter addressed to the management of the relevant company by the Auditors and accompanying those Annual Financial
Statements; and
|
|
(iii) |
in the case of Annual Financial Statements, not
be
the subject of any qualification in the Auditors’ opinion.
|
20.6 |
Year-end
|
20.7 |
Information: miscellaneous
|
|
(a) |
whilst an Event of Default is continuing and as soon as practicable after the time when they are dispatched, copies of all documents dispatched by any Obligor
to its creditors generally (or any class of them);
|
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending
against any Obligor or other Group Member, and which, if adversely determined, might 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 Obligor or other Group Member and which is reasonably likely to have a Material Adverse Effect;
|
|
(d) |
promptly upon becoming aware of them, the details of any claim, action, suit, proceeding or investigation with respect to Sanctions against any Obligor or any
of its Affiliates or any of its directors, officers, employees, agents or representatives;
|
|
(e) |
promptly, such information as the Agent or the Security Agent may reasonably require about the Charged Property and compliance of the Obligors with the terms
of any Security Documents; and
|
|
(f) |
promptly on request, such further information regarding the financial condition, assets and operations of any Obligor as any Finance Party through the Agent
may reasonably request,
|
20.8 |
Notification of Default
|
|
(a) |
The Borrower shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon any Obligor 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 Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors 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).
|
20.9 |
Sufficient copies
|
20.10 |
“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 an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or
|
|
(iii) |
a proposed assignment by a Lender of any of its rights under this Agreement to a party that is not already a Lender prior to such assignment,
|
|
(b) |
Each Finance Party shall, promptly upon the request of the Agent or the Security Agent, supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Agent or the Security Agent (for itself) in order for it to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws
and regulations pursuant to the transactions contemplated in the Finance Documents.
|
21 |
Financial covenants
|
21.1 |
Financial definitions
|
|
(a) |
cash in hand or on deposit with any bank; and
|
|
(b) |
any other instrument, security or investment approved by the Majority Lenders,
|
|
(a) |
Fleet Vessels; and
|
|
(b) |
JV Vessels, as adjusted to reflect the relevant ownership percentage in such JV Vessels of the relevant Group Member,
|
|
(a) |
the Group’s liabilities in respect of principal under any Financial Indebtedness (provided however that any principal under any Financial Indebtedness
incurred only by the Top Ships Guarantor which is not secured by security provided over an asset of the Group, shall not be taken into account); and
|
|
(b) |
all liabilities of all Joint Ventures in respect of principal under any Financial Indebtedness secured by security provided over a JV Vessel, each such
liability adjusted to reflect the relevant Group Member’s ownership percentage in such JV Vessel.
|
21.2 |
Financial condition
|
|
(a) |
Leverage ratio:
the ratio of Total Net Debt to Fleet
Market Value shall, at all times during and in respect of each Measurement Period, be not higher than 0.75:1.00.
|
|
(b) |
Minimum liquidity:
at all times the Cash and Cash
Equivalents shall not be less than the aggregate of:
|
|
(i) |
$750,000 multiplied by the number of the Fleet Vessels; and
|
|
(ii) |
$500,000 multiplied by the number of the Chartered Vessels.
|
21.3 |
Financial testing
|
22 |
General undertakings
|
22.1 |
Undertaking to comply
|
22.2 |
Use of proceeds
|
22.3 |
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 Agent of,
|
|
(i) |
enable it to perform its obligations under the Transaction Documents;
|
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence of any Transaction Document; and
|
|
(iii) |
carry on its business where failure to do so has, or is reasonably likely to have, a Material Adverse Effect.
|
22.4 |
Compliance with laws
|
22.5 |
Anti-corruption law
|
|
(a) |
No Obligor shall (and shall ensure that no other Group Member will) directly or indirectly use the proceeds of the Facility for any purpose which would breach
the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977, the Monaco Law no. 1.362 of August 3
rd
, 2009 as amended and supplemented or other similar legislation in other jurisdictions.
|
|
(b) |
Each Obligor shall:
|
|
(i) |
conduct its businesses in compliance with applicable anti-corruption laws; and
|
|
(ii) |
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
22.6 |
Bribery and corruption
|
|
(a) |
No Obligor nor any of its agents, employees, directors or officers has engaged or shall engage (and shall ensure that none of its Affiliates nor any of its
agents, employees, directors or officers has engaged or will engage) in any Relevant Jurisdiction in:
|
|
(i) |
Corrupt Practices, Fraudulent Practices, Collusive Practices or Coercive Practices, including the procurement or the execution of any contract for goods or
works relating to its functions;
|
|
(ii) |
Money Laundering or acted in breach of any applicable law relating to Money Laundering; or
|
|
(iii) |
the Financing of Terrorism.
|
|
(b) |
Without prejudice to the generality of clause 22.6(a):
|
|
(i) |
No Obligor nor any of its agents, employees, directors or officers will (and shall ensure that none of its Affiliates nor any of its agents, employees,
directors or officers will) directly or indirectly use the proceeds of the Facility for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or the Monaco Law no. 1.362 of August 3
rd
,
2009 as amended and supplemented;
|
|
(ii) |
each Obligor shall (and shall ensure that each of its Affiliates) and any of their agents, employees, directors or officers:
|
|
(A) |
conducts its businesses in compliance with the Bribery Act 2010, the United States Foregn Corrupt Practices Act of 1977 or the Monaco Law no. 1.362 of August
3
rd
, 2009 as amended and supplemented; and
|
|
(B) |
maintains policies and procedures designed to promote and achieve compliance with such laws.
|
|
(c) |
For the purposes of this clause 22.6 and clause 19.33
(No
Money Laundering),
the following definitions shall apply:
|
|
(i) |
the conversion or transfer of property, knowing it is derived from a criminal offence, for the purpose of concealing or disguising its illegal origin or of
assisting any person who is involved in the commission of the crime to evade the legal consequences of its actions;
|
|
(ii) |
the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property knowing that it is
derived from a criminal offence; or
|
|
(iii) |
the acquisition, possession or use of property knowing at the time of its receipt that it is derived from a criminal offence.
|
22.7 |
Tax compliance
|
|
(a) |
Each Obligor (other than any Charterer, the Sub-charterer and CSM) shall (and shall ensure that each other Group Member will) pay and discharge all Taxes
imposed upon it or its assets within the time period allowed without incurring penalties in excess of $500,000 (or its equivalent in any other currency) in aggregate, unless and only to the extent that:
|
|
(i) |
such payment is being contested in good faith;
|
|
(ii) |
adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements
delivered to the Agent under clause 20.3
(Financial statements)
;
and
|
|
(iii) |
such payment can be lawfully withheld.
|
|
(b) |
Except as approved by the Majority Lenders, each Obligor (other than any Charterer, the Sub-charterer and CSM) shall maintain its residence for Tax purposes
in its Original Jurisdiction and ensure that it is not resident for Tax purposes in any other jurisdiction.
|
22.8 |
Change of business
|
22.9 |
Merger
|
22.10 |
Pension exposure
|
22.11 |
Further assurance
|
|
(a) |
Each Obligor shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as
the Agent may reasonably specify (and in such form as the Agent or the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
|
(i) |
to perfect the Security Interests created or intended to be created by that Obligor under, or evidenced by, the Security 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 Security Documents) or for the exercise of any rights, powers and remedies of the Security
Agent and/or any other Finance Parties provided by or pursuant to the Finance Documents or by law;
|
|
(ii) |
to confer on the Security Agent and/or any other Finance Parties Security Interests 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 Security Documents;
|
|
(iii) |
to facilitate the realisation of the assets which are, or are intended to
be,
the subject of the Security Documents; and/or
|
|
(iv) |
to facilitate the accession by a New Lender to any Security Document following an assignment in accordance with clause 31.1
(Assignments by the Lenders)
.
|
|
(b) |
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 Agent and/or any other Finance Parties by or pursuant to the Finance Documents.
|
22.12 |
Negative pledge in respect of Charged Property and Obligor shares
|
22.13 |
Sanctions
|
|
(a) |
Each Obligor shall, and shall procure that any Affiliate of each Obligor shall, ensure that none of their respective directors, officers, agents, employees or
persons acting on behalf
|
|
(b) |
No Obligor shall, and shall procure that none of its Affiliates shall, use any revenue or benefit derived from any activity or dealing with a Restricted
Person in discharging any obligation due or owing to the Finance Parties.
|
|
(c) |
Each Obligor shall not, and shall procure that each of its Affiliates will not, credit proceeds from any activity or dealing with a Restricted Person to any
bank account held with any Finance Party in its name or in the name of any other person.
|
|
(d) |
Each Obligor shall, and shall ensure that each of its Affiliates take measures to ensure compliance with Sanctions.
|
|
(e) |
Each Obligor shall, and shall procure that each of its Affiliates shall, to the extent permitted by law, promptly upon becoming aware of them, supply to the
Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.
|
22.14 |
Environmental matters
|
|
(a) |
The Agent will be notified as soon as reasonably practicable of any Environmental Claim being made against any Obligor or other Group Member or any Fleet
Vessel which, if successful to any extent, is reasonably expected to have a Material Adverse Effect and of any Environmental Incident which may give rise to such a claim and will be kept regularly and promptly informed in reasonable
detail of the nature of, and response to, any such Environmental Incident and the defence to any such claim.
|
|
(b) |
Environmental Laws (and any consents, licences or approvals obtained under them) applicable to Fleet Vessels will not be violated.
|
22.15 |
Collateral Ship
|
|
(a) |
execute the Collateral Documents; and
|
|
(b) |
deliver to the Agent:
|
|
(i) |
evidence that any Account required to be opened and established by the Astarte Guarantor under clause 28
(Bank accounts)
has been opened and established, that any Account Security in respect of each such Account has been executed and delivered by the Astarte Guarantor and that any
notice required to be given to an Account Bank under that Account Security has been given to it and acknowledged by it in the manner required by that Account Security and that an amount has been credited to it; and
|
|
(ii) |
such corporate authorisations or other evidence of the authority of the parties to the Collateral Documents (other than the Finance Parties) in relation to
their execution, and such other documents and evidence in respect of the Collateral Ship and the Collateral Documents of the type referred to in Part 2 of Schedule 3
(Conditions precedent)
of the Post-Delivery Facility Agreement as shall be required by the Agent in its absolute discretion, in form and substance satisfactory to the Agent.
|
23 |
Construction period
|
23.1 |
Undertaking to comply
|
23.2 |
Document of title
|
23.3 |
Performance of Building Contract
|
23.4 |
Performance by Builder and Refund Guarantor
|
23.5 |
Progress and information
|
23.6 |
Arbitration under Building Contract
|
|
(a) |
if either party to the Building Contract begins an arbitration under the Building Contract;
|
|
(b) |
of the identity of the arbitrators; and
|
|
(c) |
of the conclusion of the arbitration and the terms of any arbitration award.
|
23.7 |
Notification of certain events
|
23.8 |
Conveyance on default
|
23.9 |
Enforcement of rights
|
23.10 |
Sale or other disposal
|
23.11 |
Variations
|
|
(a) |
the Refund Guarantee will not be varied; and
|
|
(b) |
the Building Contract shall not be varied and the specification of the Borrower’s Ship will not be changed:
|
|
(i) |
in a way which might reasonably be expected to delay the delivery of the Borrower’s Ship beyond the Last Availability Date or be likely in the opinion of the
Agent to put at risk the delivery of the Borrower’s Ship to the relevant Charterer;
|
|
(ii) |
without the Refund Guarantor’s prior written approval; and
|
|
(iii) |
in the case of the specification of the Borrower’s Ship, in a substantial way (as set out in paragraph (c) below)).
|
|
(c) |
For this purpose, ordering any extras, additions or alterations will be deemed as being in a substantial way if their cost (or if the aggregate cost of the
proposed work together with the cost of any additional work already ordered or change of specification already agreed) will alter the Contract Price by a cumulative amount greater than 2 per cent of the original Contract Price. The
Borrower shall agree in writing with the Builder the terms and specification of any such work before the work is put in hand irrespective of whether approval of that work is required under the Finance Documents.
|
23.12 |
Releases and waivers
|
23.13 |
Rejection and cancellation
|
24 |
Dealings with Ships
|
24.1 |
Undertaking to comply
|
24.2 |
Sale or other disposal of Ships
|
|
(a) |
Except with approval, the Borrower will not sell, or agree to, transfer, abandon or otherwise dispose of the Borrower’s Ship or any share or interest in it.
|
|
(b) |
Except with approval, the Astarte Guarantor will not sell, or agree to, transfer, abandon or otherwise dispose of the Collateral Ship or any share or interest
in unless it is so permitted under the Post-Delivery Facility Agreement and the relevant Post-Delivery Finance Documents and then only in accordance with the Post-Delivery Facility Agreement and the relevant Post-Delivery Finance
Documents.
|
24.3 |
Chartering
|
|
(a) |
a bareboat or demise charter or passes possession and operational control of such Ship to another person;
|
|
(b) |
of a fixed duration exceeding 13 calendar months;
|
|
(c) |
on terms as to payment or amount of hire which are materially less beneficial to it than the terms which at that time could reasonably be expected to be
obtained on the open market for vessels of the same age and type as such Ship under charter commitments of a similar type and period; or
|
|
(d) |
to another Obligor or Group Member.
|
|
(e) |
Further, without prejudice to the rights of the Finance Parties under the provisions of this clause 24.3 and any other provisions of the Finance Documents,
the Astarte Guarantor shall advise the Agent promptly of any proposed charter commitment in respect of the Collateral Ship of a fixed duration exceeding 13 calendar months, and:
|
|
(i) |
deliver a copy of each such charter commitment to the Agent forthwith after it has been entered into;
|
|
(ii) |
forthwith following a demand made by the Agent (acting on the instructions of the Majority Lenders):
|
|
(A) |
execute a charter assignment in the form similar to the relevant Charter Assignment of any such charter commitment in favour of the Security Agent and any
notice of assignment required in connection therewith; and
|
|
(B) |
procure the service of any such notice of assignment on the relevant charterer and, unless expressly freely assignable, the acknowledgement of such notice by
the relevant charterer;
|
|
(iii) |
deliver to the Agent such documents and evidence of the type referred to in Schedule 3
(Conditions precedent)
of the Post-Delivery Facility Agreement, in relation to any such charter assignment or any other related matter referred to in this clause 24.3(e) as the Agent (acting on the
instructions of the Majority Lenders in their sole discretion) shall require; an
|
|
(iv) |
pay on the Agent’s demand all documented legal costs and other costs incurred by the Agent and/or any other Finance Party in connection with or in relation to
any such charter assignment or any other related matter referred to in this clause 24.3(b).
|
24.4 |
Sharing of Earnings
|
24.5 |
Payment of Earnings
|
|
(a) |
The Borrower’s Earnings shall be paid in its Operating Account. The Astarte Guarantor’s Earnings from the Collateral Ship shall be
paid in the way required by the General Assignment.
|
|
(b) |
If any Earnings in respect of the Collateral Ship are held by brokers or other agents, they shall be paid to the Security Agent, if it requires this after the
Earnings have become payable to it under the General Assignment.
|
24.6 |
Inspection
|
24.7 |
Evidence of payments
|
24.8 |
Survey report
|
24.9 |
Collateral Ship’s name and registration
|
|
(a) |
The Collateral Ship’s name shall only be changed with the prior written consent of the Agent.
|
|
(b) |
The Collateral Ship shall be registered with the relevant Registry under the laws of its Flag State. Except with approval, the Collateral Ship shall not be
registered under any other flag or at any other port or fly any other flag (other than that of its Flag State). If that registration is for a limited period, it shall be renewed at least 45 days before the date it is due to expire and
the Agent shall be notified of that renewal at least 30 days before that date.
|
|
(c) |
Nothing will be done and no action will be omitted if that might result in such registration being forfeited or imperilled or the Collateral Ship being
required to be registered under the laws of another state of registry.
|
24.10 |
Lay up
|
24.11 |
Manager
|
24.12 |
Copy of Mortgage on board
|
24.13 |
Notice of Mortgage
|
24.14 |
Conveyance on default
|
25 |
Condition and operation of Collateral Ship
|
25.1 |
Undertaking to comply
|
25.2 |
Defined terms
|
25.3 |
Repair
|
25.4 |
Modification
|
25.5 |
Removal of parts
|
25.6 |
Third party owned equipment
|
25.7 |
Maintenance of class; compliance with laws and codes
|
25.8 |
Surveys
|
25.9 |
Inspection and notice of dry-docking
|
25.10 |
Prevention of arrest
|
25.11 |
Release from arrest
|
25.12 |
Information about Collateral Ship
|
25.13 |
Notification of certain events
|
|
(a) |
any damage to the Collateral Ship where the cost of the resulting repairs is reasonably likely to exceed the relevant Major Casualty Amount;
|
|
(b) |
any occurrence which is reasonably likely to result in the Collateral Ship becoming a Total Loss;
|
|
(c) |
any requisition of the Collateral Ship for hire;
|
|
(d) |
any Environmental Incident involving the Collateral Ship and Environmental Claim being made in relation to such an incident;
|
|
(e) |
any withdrawal of any applicable operating certificate;
|
|
(f) |
the receipt of notification that any application for such a certificate has been refused;
|
|
(g) |
any requirement or recommendation made in relation to the Collateral Ship by any insurer or the relevant Classification Society or by any competent authority
which is not, or cannot be, complied with in the manner or time required or recommended; and
|
|
(h) |
any arrest or detention of the Collateral Ship or any exercise or purported exercise of a lien or other claim on the Collateral Ship or its Earnings or
Insurances.
|
25.14 |
Payment of outgoings
|
25.15 |
Evidence of payments
|
|
(a) |
the wages and allotments and the insurance and pension contributions of the Collateral Ship’s crew are being timely and regularly paid;
|
|
(b) |
all deductions from its crew’s wages in respect of any applicable Tax liability are being properly accounted for; and
|
|
(c) |
the Collateral Ship’s master has no claim for disbursements other than those incurred by him or her in the ordinary course of trading on the voyage then in
progress.
|
25.16 |
Repairers’ liens
|
25.17 |
Survey report
|
25.18 |
Lawful use
|
|
(a) |
in any way or in any activity which is unlawful under international law or the domestic laws of any relevant country;
|
|
(b) |
in carrying illicit or prohibited goods;
|
|
(c) |
in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated; or
|
|
(d) |
if there are hostilities in any part of the world (whether war has been declared or not), in carrying contraband goods,
|
25.19 |
War zones
|
26 |
Insurance
|
26.1 |
Undertaking to comply
|
26.2 |
Insurance terms
|
26.3 |
Coverage required
|
|
(a) |
against fire and usual marine risks (including excess risks) and war risks (including war protection and indemnity risks and terrorism risks) on an agreed
value basis, for at least its minimum hull cover and no less than its market value;
|
|
(b) |
against P&I risks for the highest amount then available in the insurance market for vessels of similar age, size and type as the Collateral Ship (but, in
relation to liability for oil pollution, for an amount of not less than $1,000,000,000);
|
|
(c) |
against such other risks (excluding loss of hire) and matters which the Agent notifies it that it considers reasonable for a prudent shipowner or operator to
insure against at the time of that notice (having regard to general insurance market practice and law at the time but always excluding any loss of earnings cover); and
|
|
(d) |
on terms which comply with the other provisions of this clause 26.
|
26.4 |
Placing of cover
|
|
(a) |
in the name of the Astarte Guarantor and no other person (other than the Security Agent (and any other Finance Party required by the Agent) if required by the
Agent) (unless
|
|
(b) |
if the Agent so requests, in the joint names of the Astarte Guarantor and the Security Agent (and any other Finance Party required by the Agent) (and, to the
extent reasonably practicable in the insurance market, without liability on the part of the Security Agent or such Finance Party for premiums or calls);
|
|
(c) |
in dollars or another approved currency;
|
|
(d) |
arranged through approved brokers or direct with approved insurers or protection and indemnity or war risks associations;
|
|
(e) |
in full force and effect; and
|
|
(f) |
on approved terms and with approved insurers or associations.
|
26.5 |
Deductibles
|
26.6 |
Mortgagee’s insurance
|
|
(a) |
a mortgagee’s interest insurance and a mortgagee’s additional perils (all P&I risks) cover for the benefit of the Finance Parties for an amount up to 120
per cent of the Collateral Loan; and
|
|
(b) |
any other insurance cover which the Agent reasonably requires (having regard to general insurance market practice and law at the time) in respect of any
Finance Party’s interests and potential liabilities (whether as mortgagee of the Collateral Ship or beneficiary of the Security Documents).
|
26.7 |
Fleet liens, set off and cancellations
|
|
(a) |
set off against any claims in respect of the Collateral Ship any premiums due in respect of any of such other vessels insured; or
|
|
(b) |
cancel that cover because of non-payment of premiums in respect of such other vessels,
|
26.8 |
Payment of premiums
|
26.9 |
Details of proposed renewal of Insurances
|
26.10 |
Instructions for renewal
|
26.11 |
Confirmation of renewal
|
26.12 |
P&I guarantees
|
26.13 |
Insurance documents
|
26.14 |
Letters of undertaking
|
26.15 |
Insurance Notices and Loss Payable Clauses
|
26.16 |
Insurance correspondence
|
26.17 |
Qualifications and exclusions
|
26.18 |
Independent report
|
26.19 |
Collection of claims
|
26.20 |
Employment of Collateral Ship
|
26.21 |
Declarations and returns
|
26.22 |
Application of recoveries
|
26.23 |
Settlement of claims
|
26.24 |
Change in insurance requirements
|
27 |
Chartering undertakings
|
27.1 |
Undertaking to comply
|
27.2 |
Variations
|
|
(a) |
Except with approval, the Charter in relation to the Borrower’s Ship shall not be materially varied.
|
|
(b) |
Except with approval, the Charter Documents in relation to the Astarte Guarantor shall not be materially varied.
|
27.3 |
Releases and waivers
|
|
(a) |
Except with approval, there shall be no release by the Borrower of any obligation of any other person under the Charter in relation to the Borrower’s Ship
(including by way of novation or assignment), no waiver of any breach of any such obligation and no consent to anything which would otherwise be such a breach.
|
|
(b) |
Except with approval, there shall be no release by the Astarte Guarantor (and the Astarte Guarantor shall procure that there will be no release by its
Charterer) of any obligation of any other person under the Charter Documents in relation to the Collateral Ship (including by way of novation or assignment), no waiver of any breach of any such obligation and no consent to anything
which would otherwise be such a breach.
|
27.4 |
Termination by the Borrower
|
|
(a) |
Except with approval, the Borrower shall not terminate or rescind the Charter in relation to the Borrower’s Ship or withdraw the Borrower’s Ship from service
under that Charter or take any similar action.
|
|
(b) |
Except with approval, the Astarte Guarantor shall not (and it shall procure that the Charterer will not) terminate or rescind any Charter Document in relation
to the Collateral Ship or withdraw such Ship from service under the Charter in relation to the Collateral Ship or take any similar action.
|
27.5 |
Charter performance
|
|
(a) |
The Borrower shall perform its obligations under the Charter in relation to the Borrower’s Ship and use its best endeavours to ensure that each other party to
it performs its obligations under the Charter in relation to the Borrower’s Ship.
|
|
(b) |
The Astarte Guarantor shall (and it shall procure that the Charterer will) perform its obligations under the Charter Documents in relation to the Collateral
Ship and it shall (and it shall procure that the Charterer will) use its best endeavours to ensure that each other party to them performs its obligations under the Charter Documents in relation to the Collateral Ship.
|
27.6 |
Payment of Charter Earnings
|
|
(a) |
All Earnings which the Borrower is entitled to receive under the Charter in relation to the Borrower’s Ship shall be paid to its Operating Account (without
any set-off or counter-claim and free and clear of any deductions or withholdings).
|
|
(b) |
All Earnings which the Astarte Guarantor or (as the case may be) the relevant Charterer is entitled to receive under the Charter Documents shall be paid in
the manner required by the relevant Security Documents in relation to the Collateral Ship.
|
27.7 |
Notice of assignment
|
|
(a) |
subject to paragraph (b) below, shall ensure that the Agent receives a copy of that notice acknowledged by each addressee; or
|
|
(b) |
if such Charter Documents are freely assignable, the Astarte Guarantor shall (and it shall procure that the Charterer will) use commercially reasonable
efforts to ensure that the Agent receives a copy of that notice acknowledged by each addressee,
|
28 |
Bank accounts
|
28.1 |
Undertaking to comply
|
28.2 |
Operating Account
|
|
(a) |
Each Owner shall be the holder of one Account with an Account Bank which is designated as the “Operating Account” for the purposes of the Finance Documents.
|
|
(b) |
The Earnings and all moneys payable to the relevant Owner shall be paid by the persons from whom they are due to the relevant Operating Account unless
required to be paid to the Security Agent under the relevant Finance Documents.
|
|
(c) |
The relevant Owner shall not withdraw amounts standing to the credit of an Operating Account except as permitted by paragraphs (d) or (as the case may be) (e)
below.
|
|
(d) |
If there is no continuing Event of Default, the Borrower may withdraw the following amounts from the relevant Operating Account for:
|
|
(i) |
payments then due to Finance Parties under the Finance Documents (other than payments due in respect of a prepayment); and
|
|
(ii) |
payments then due in respect of the price of goods or services purchased by the Borrower for the purpose of operating under the Building Contract and any
other related agreement.
|
|
(e) |
If there is no continuing Event of Default, the Astarte Guarantor may withdraw any amounts from the relevant Operating Account for any purpose which is
permitted (or not prohibited) by this Agreement and the relevant Post-Delivery Finance Documents.
|
28.3 |
Other provisions
|
|
(a) |
An Account may only be designated for the purposes described in this clause 28 if:
|
|
(i) |
such designation is made in writing by the Agent and acknowledged by the relevant Account Holder(s) and specifies the name and address of the Account Bank and
the number and any designation or other reference attributed to the Account;
|
|
(ii) |
an Account Security has been duly executed and delivered by the relevant Account Holder(s) in favour of the Security Agent (and any other Finance Party
required by the Agent);
|
|
(iii) |
any notice required by the Account Security to be given to an Account Bank has been given to, and acknowledged by, the Account Bank in the form required by
the relevant Account Security; and
|
|
(iv) |
the Agent, or its duly authorised representative, has received such documents and evidence it may require in relation to the Account and the relevant Account
Security including documents and evidence of the type referred to in Schedule 3
(Conditions precedent)
in relation to the Account
and the relevant Account Security.
|
|
(b) |
The rates of payment of interest and other terms regulating any Account will be a matter of separate agreement between the relevant Account Holder(s) and an
Account Bank.
|
|
(c) |
If an Account is a fixed term deposit account, the relevant Account Holder(s) may select the terms of deposits until the relevant Account Security has become
enforceable and the Security Agent directs otherwise.
|
|
(d) |
The relevant Account Holder(s) shall not close any Account or alter the terms of any Account from those in force at the time it is designated for the purposes
of this clause 28 or waive any of its rights in relation to an Account except with approval.
|
|
(e) |
The relevant Account Holder(s) shall deposit with the Security Agent all certificates of deposit, receipts or other instruments or securities relating to any
Account, notify the Security Agent of any claim or notice relating to an Account from any other party and provide the Agent with any other information it may reasonably request concerning any Account.
|
|
(f) |
Each of the Agent and the Security Agent agrees that if it is an Account Bank in respect of an Account then there will be no restrictions on creating a
Security Interest over that Account as contemplated by this Agreement and it shall not (except with the approval of the Majority Lenders) exercise any right of combination, consolidation or set-off which it may have in respect of that
Account in a manner adverse to the rights of the other Finance Parties.
|
29 |
Business restrictions
|
29.1 |
Undertaking to comply
|
29.2 |
General negative pledge
|
|
(a) |
In this clause 29.2, Quasi-Security means an arrangement or transaction described in paragraph (c) below.
|
|
(b) |
The Borrower shall not create or permit to subsist any Security Interest over any of its assets except for Permitted Security Interests.
|
|
(c) |
(Without prejudice to clauses 29.3
(Financial Indebtedness)
and 29.7
(Disposals)
),
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, an Obligor or any other Group
Member;
|
|
(ii) |
sell, transfer, factor 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,
|
|
(d) |
Paragraphs (b) and (c) above do not apply to any Security Interest or (as the case may be) Quasi-Security, those granted or expressed to be granted by any of
the Security Documents;
|
29.3 |
Financial Indebtedness
|
|
(a) |
Financial Indebtedness incurred under the Finance Documents;
|
|
(b) |
Financial Indebtedness permitted under clause 29.4
(Guarantees)
;
and
|
|
(c) |
Financial Indebtedness permitted under clause 29.5
(Loans
and credit)
.
|
29.4 |
Guarantees
|
29.5 |
Loans and credit
|
29.6 |
Bank accounts, operating leases and other financial transactions
|
|
(a) |
maintain any current or deposit account with a bank or financial institution except for the relevant Operating Account and the deposit of money, operation of
current accounts and the conduct of electronic banking operations through the relevant Operating Account;
|
|
(b) |
hold cash in any account (other than the relevant Operating Account) over or in respect of which any set-off, combination of accounts, netting or Security
Interest exists;
|
|
(c) |
enter into any obligations under operating leases relating to assets; or
|
|
(d) |
be party to any transaction, whether on or off balance sheet, that is not expressly permitted under this Agreement.
|
29.7 |
Disposals
|
29.8 |
Contracts and arrangements with Affiliates
|
29.9 |
Subsidiaries
|
29.10 |
Acquisitions and investments
|
|
(a) |
the incurrence of liabilities in the ordinary course of its business; and
|
|
(b) |
pursuant to any Finance Document or the Charter in respect of the Borrower’s Ship or the Building Contract Documents to which it is party.
|
29.11 |
Reduction of capital
|
29.12 |
Increase in capital
|
29.13 |
Distributions and other payments
|
|
(a) |
declare or pay (including by way of set-off, combination of accounts or otherwise) any dividend, charge, fee or other distribution (or interest on any unpaid
dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital) or any warrants for the time being in issue;
|
|
(b) |
repay or distribute any dividend or share premium reserve;
|
|
(c) |
pay any management, advisory or other fee to or to the order of any of the shareholders of the Top Ships Guarantor;
|
|
(d) |
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so; or
|
|
(e) |
make any payment (including by way of set-off, combination of accounts or otherwise) by way of interest, or repayment, redemption, purchase or other payment,
in respect of any shareholder loan, loan stock or similar instrument;
|
30 |
Events of Default
|
30.1 |
Each of the events or circumstances set out in this clause 30 (except clause 30.24
(Acceleration)
)
is an Event of Default.
|
30.2 |
Non-payment
|
|
(a) |
its failure to pay is caused by administrative or technical error or by a Disruption Event; and
|
|
(b) |
payment is made within three (3) Business Days of its due date.
|
30.3 |
Financial covenants
|
30.4 |
Other obligations
|
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in clause 30.2
(Non-payment),
clause 28.3
(Financial covenants)
and
the other provisions of this clause 28).
|
|
(b) |
No Event of Default under paragraph (a) above will occur if the Agent considers that the failure to comply is capable of remedy and the failure is remedied
within five Business Days of the earlier of (A) the Agent giving notice to the Borrower and (B) the Borrower or any other Obligor becoming aware of the failure to comply.
|
30.5 |
Misrepresentation
|
30.6 |
Cross default
|
|
(a) |
Any Financial Indebtedness of any Obligor (other than any Charterer, the Sub-charterer or CSM) is not paid when due nor within any originally applicable grace
period.
|
|
(b) |
Any Financial Indebtedness of any Obligor (other than any Charterer, the Sub-charterer or CSM) 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 (other than any Charterer, the Sub-charterer or CSM) is cancelled or suspended by a creditor of
that Obligor as a result of an event of default (however described).
|
|
(d) |
The counterparty to a Treasury Transaction entered into by the Top Ships Guarantor becomes entitled to terminate that Treasury Transaction early by reason of
an event of default (however described).
|
|
(e) |
An Event of Default will only occur under this clause 30.6 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling
within this clause 30.6 is more than $500,000 (or its equivalent in any other currency) in the case of the Borrower and $5,000,000 in the case of the Top Ships Guarantor (or its equivalent in any other currency).
|
|
(f) |
Any creditor of any Obligor (other than any Charterer, the Sub-charterer or CSM) becomes entitled to declare any Financial Indebtedness of that Obligor due
and payable prior to its specified maturity as a result of an event of default (however described).
|
30.7 |
Insolvency
|
|
(a) |
An Obligor (other than CSM):
|
|
(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 without the consent of the affected creditor(s) or threatens to suspend making payments on any of its debts; or
|
|
(iv) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its
capacity as such) with a view to rescheduling all or substantially all of its Financial Indebtedness.
|
|
(b) |
The value of the assets of any Obligor (other than any Charterer, the Sub-charterer or CSM) is less than its Total Debt.
|
|
(c) |
A moratorium is declared in respect of any indebtedness of any Obligor exceeding in the case of the Top Ships Guarantor $1,500,000 (or its equivalent in any
other currency) in aggregate.
|
30.8 |
Insolvency proceedings
|
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
|
(i) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of any Obligor (other than CSM);
|
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of any Obligor (other than CSM);
|
|
(iii) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Obligor
(other than CSM) or any of its assets (including the directors of any Obligor (other than CSM) requesting a person to appoint any such officer in relation to it or any of its assets); or
|
|
(iv) |
enforcement of any Security Interest over any assets of any Obligor (other than the Top Ships Guarantor and CSM) or over any assets of the Top Ships Guarantor
having a value in excess of $1,500,000 (or its equivalent in any other currency) in aggregate,
|
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition (or analogous procedure or step) which is frivolous or vexatious and is discharged, stayed or
dismissed within seven days of commencement or, if earlier, the date on which it is advertised.
|
30.9 |
Creditors’ process
|
|
(a) |
Any expropriation, attachment, sequestration, distress, execution or any other analogous process or enforcement action (including enforcement by a landlord)
affects any asset or assets of any Obligor (other than CSM) (having in the case of the Top Ships Guarantor a value in excess of $1,500,000 (or its equivalent in any other currency) in aggregate) and is not discharged within seven days.
|
|
(b) |
Any judgment or order is made against any Obligor (other than CSM) or any other Group Member and is not stayed or complied with within fifteen days.
|
30.10 |
Unlawfulness and invalidity
|
|
(a) |
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or any Transaction Security ceases to be effective.
|
|
(b) |
Any obligation or obligations of any Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or
enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents.
|
|
(c) |
Any Finance Document or any Transaction Security ceases to be in full force and effect or ceases to be legal, valid, binding, enforceable or effective or is
alleged by a party to it (other than a Finance Party) to be ineffective for any reason.
|
|
(d) |
Any Security Document does not create legal, valid, binding and enforceable security over the assets charged under that Security Document or the ranking or
priority of such security is adversely affected.
|
30.11 |
Cessation of business
|
30.12 |
Ownership of the Borrower
|
30.13 |
Expropriation
|
30.14 |
Repudiation and rescission of Finance Documents
|
30.15 |
Litigation
|
|
(a) |
any litigation, alternative dispute resolution, arbitration or administrative, governmental, regulatory or other investigations, proceedings or disputes are
commenced or threatened;
or
|
|
(b) |
any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body is made,
|
30.16 |
Material Adverse Effect
|
30.17 |
Security enforceable
|
30.18 |
Political risk
|
|
(a) |
Either (1) any Relevant Jurisdiction of an Obligor becomes involved in hostilities or civil war or (2) there is a seizure of power in any such Relevant
Jurisdiction by unconstitutional means and (in either such case) in the opinion of the Agent such event or circumstance, has or is reasonably likely to have, a Material Adverse Effect.
|
|
(b) |
No Event of Default under paragraph (a) above will occur if:
|
|
(i) |
in the opinion of the Agent it is practicable for action to be taken by the Borrower to prevent the relevant event or circumstance having a Material Adverse
Effect; and
|
|
(ii) |
the Borrower takes such action to the Agent’s satisfaction within 14 days of notice from the Agent (specifying the relevant action to be taken) to do so.
|
30.19 |
Post-Delivery Events
|
30.20 |
Sanctions
|
|
(a) |
Any of the Obligors or any Affiliate of any of them or any of their respective directors, officers, agents, employees or other persons acting on behalf of the
foregoing, becomes a Restricted Person or becomes owned or controlled by, or acts directly or indirectly on behalf of, a Restricted Person or any of such persons becomes the owner or controller of a Prohibited Person; or
|
|
(b) |
Any proceeds of the Loan are made available, directly or indirectly, to or for the benefit of a Restricted Person or otherwise is, directly or indirectly,
applied in a manner or for a purpose prohibited by applicable Sanctions; or
|
|
(c) |
Any Obligor or any of their respective Affiliates or any of their respective directors, officers, agents, employees or other persons acting on behalf of the
foregoing, is not in compliance with all applicable Sanctions.
|
30.21 |
Insurance
|
|
(a) |
The Insurances of the Collateral Ship are not placed and kept in force in the manner required by clause 26 (Insurance).
|
|
(b) |
Any insurer either:
|
|
(i) |
cancels any such Insurances; or
|
|
(ii) |
disclaims liability under them or asserts that its liability under them is or should be reduced by reason of any m is-statement or failure or default by any
person.
|
30.22 |
Collateral Ship
|
30.23 |
De-listing or suspension of trading
|
30.24 |
Acceleration
|
|
(a) |
by notice to the Borrower:
|
|
(i) |
declare that no withdrawals be made from any Account;
|
|
(ii) |
cancel the Total Commitments at which time they shall immediately be cancelled;
|
|
(iii) |
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, at which time they shall become immediately due and payable; and/or
|
|
(iv) |
declare that all or part of the Loan be payable on demand, at which time it shall immediately become payable on demand by the Agent on the instructions of the
Majority Lenders; and/or
|
|
(b) |
exercise or direct the Security Agent and/or any other beneficiary of the Security Documents to exercise any or all of its rights, remedies, powers or
discretions under the Finance Documents.
|
31 |
Changes to the Lenders
|
31.1 |
Assignments by the Lenders
|
31.2 |
Other conditions of assignment
|
|
(a) |
An assignment will only be effective:
|
|
(i) |
on receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same
obligations to the Borrower and the other Finance Parties as it would have been under if it was an Original Lender;
|
|
(ii) |
on the New Lender entering into any documentation required for it to accede as a party to any Security Document to which the Existing Lender is a party in its
capacity as a Lender and, in relation to such Security Documents, completing any filing, registration or notice requirements;
|
|
(iii) |
on the performance by the Agent of all necessary “know your customer” or similar checks under all applicable laws and regulations relating to any person that
it is required to carry out in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender; and
|
|
(iv) |
if that Existing Lender assigns equal fractions of its Commitment and participation in the Loan and each Utilisation (if any) under the Facility.
|
|
(b) |
Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the 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 the Finance Documents on or prior to the date on which the assignment becomes effective in accordance with the Finance
Documents and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
31.3 |
Fee and expenses
|
|
(a) |
all costs and expenses (including legal fees) reasonably incurred by the Agent or the Security Agent in connection with any such assignment; and
|
|
(b) |
any cost, loss or liability the Agent or the Security Agent incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of
any such assignment.
|
31.4 |
Transfer costs and expenses relating to security
|
|
(a) |
all costs and expenses (including legal fees) reasonably incurred by the Agent or the Security Agent to facilitate the accession by the New Lender to, or
assignment or transfer to the New Lender of, any Security Document and/or the benefit of any Security Document and any appropriate registration of any such accession or assignment or transfer; and
|
|
(b) |
any cost, loss or liability the Agent or the Security Agent incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of
any such accession, assignment or transfer.
|
31.5 |
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 Finance Documents, the Transaction Security or any other documents;
|
|
(ii) |
the financial condition of any Obligor;
|
|
(iii) |
the performance and observance by any Obligor or any other person of its obligations under the Finance Documents or any other documents;
|
|
(iv) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents; or
|
|
(v) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of:
|
|
(A) |
the financial condition and affairs of the Obligors and their related entities in connection with its participation in this Agreement; and
|
|
(B) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
|
(ii) |
will continue to make its own independent appraisal of the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by
the Finance Documents; and
|
|
(iii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in force.
|
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
|
(i) |
accept a re-assignment from a New Lender of any of the rights assigned under this clause 31; or
|
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under any Transaction
Document or by reason of the application of any Basel II Regulation to the transactions contemplated by the Transaction Documents or otherwise.
|
31.6 |
Procedure available for assignment
|
|
(a) |
Subject to the conditions set out in clause 31.2
(Other
conditions of assignment)
an assignment may be effected in accordance with paragraph (d) below when (a) the Agent executes an otherwise duly completed Transfer Certificate and (b) the Agent executes any document required under
paragraph (a) of clause 31.2
(Other conditions of assignment)
which it may be necessary for it to execute in each case delivered
to it by the Existing Lender and the New Lender duly executed by them and, in the case of any such other document, any other relevant person. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after
receipt by it of a Transfer Certificate and any such other document each duly completed, appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate and such other document.
|
|
(b) |
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
|
(c) |
The Obligors who are Parties and the other Finance Parties irrevocably authorise the Agent to execute any Transfer Certificate on their behalf without any
consultation with them.
|
|
(d) |
On the Transfer Date:
|
|
(i) |
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the
Transfer Certificate;
|
|
(ii) |
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the
Relevant Obligations
)
and expressed to be the subject of
the release in the Transfer Certificate (but the obligations owed by the Obligors under the Finance Documents shall not be released); and
|
|
(iii) |
the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.
|
|
(e) |
Lenders may utilise procedures other than those set out in this clause 31.6 to assign their rights under the Finance Documents (but not, without the consent
of the relevant Obligor or unless in accordance with this clause 31.6 to obtain a release by that Obligor from the obligations owed to that 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 31.2
(Other conditions of assignment)
.
|
31.7 |
Copy of Transfer Certificate to Borrower
|
31.8 |
Security over Lenders’ rights
|
|
(a) |
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
|
(b) |
any charge, assignment or other Security Interest 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 other Security
Interest for the Lender as a party to any of the Finance Documents; or
|
|
(ii) |
require any payments to be made by an 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.
|
32 |
Changes to the Obligors
|
33 |
Roles of Agent, Security Agent and Arranger
|
33.1 |
Appointment of the Agent and Security Agent
|
|
(a) |
the Agent to act as its agent under and in connection with the Finance Documents; and
|
|
(b) |
the Security Agent to act as its agent and as trustee under the Security Documents.
|
33.2 |
Security Agent as trustee
|
33.3 |
Authorisation of Agent and Security Agent
|
|
(a) |
to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent or (as
the case may be) the Security Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and
|
|
(b) |
to execute each of the Security Documents and all other documents that may be approved by the Majority Lenders for execution by it.
|
33.4 |
Instructions to Agent and the Security Agent
|
|
(a) |
The Agent and the Security Agent shall:
|
|
(i) |
subject to paragraphs (d) and (e) below, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent or (as the case
may be) the Security Agent in accordance with any instructions given to it by:
|
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
|
(B) |
in all other cases, the Majority Lenders; and
|
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above (or, if the relevant Finance Document
stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties).
|
|
(b) |
The Agent and the Security 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 Agent or (as the case may be) the Security Agent may refrain from acting unless and until it receives those instructions or that clarification.
|
|
(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 Agent or (as the case may be) the Security Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties
and will be binding on all Finance Parties.
|
|
(d) |
Paragraph (a) above shall not apply:
|
|
(i) |
where a contrary indication appears in a Finance Document;
|
|
(ii) |
where a Finance Document requires the Agent or the Security Agent to act in a specified manner or to take a specified action; and
|
|
(iii) |
in respect of any provision which protects the Agent’s or the Security Agent’s own position in its personal capacity as opposed to its role of the Agent or
the Security Agent for the Finance Parties including, without limitation, clause 33.9
(No duty to account)
to clause 33.14
(Exclusion of liability),
clause 33.19
(Confidentiality)
to clause 34.6
(Custodians and nominees)
and clauses 34.9
(Acceptance of title)
to 34.12
(Disapplication of Trustee
Acts)
.
|
|
(e) |
If giving effect to instructions given by any other Finance Party or group of Finance Parties would (in the Agent’s or (as the case may be) the Security
Agent’s opinion) have an effect equivalent to an amendment or waiver which is subject to clause 45
(Amendments and waivers),
the
Agent or (as the case may be) the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than itself) whose consent would have been required in respect of
that amendment or waiver.
|
|
(f) |
The Agent or the Security Agent may refrain from acting in accordance with any instructions of any other 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.
|
|
(g) |
Without prejudice to the provisions of clause 35
(Enforcement
of Transaction Security)
and the remainder of this clause 33, in the absence of instructions, the Agent and the Security Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
33.5 |
Legal or arbitration proceedings
|
33.6 |
Duties of the Agent and the Security Agent
|
|
(a) |
The Agent’s and the Security Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
|
(b) |
Subject to paragraph (c) below, the Agent or (as the case may be) the Security Agent shall promptly:
|
|
(i) |
(in the case of the Security Agent) forward to the Agent a copy of any document received by the Security Agent from any Obligor under any Finance Document;
and
|
|
(ii) |
forward to a Party the original or a copy of any document which is delivered to the Agent or (as the case may be) the Security Agent for that Party by any
other Party.
|
|
(c) |
Without prejudice to clause 31.7
(Copy of Transfer
Certificate to Borrower),
paragraph (b) above shall not apply to any Transfer Certificate.
|
|
(d) |
Except where a Finance Document specifically provides otherwise, neither the Agent nor the Security Agent is obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
|
|
(e) |
Without prejudice to clause 36.10
(Notification of
prescribed events),
if the Agent or the Security Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other
Finance Parties.
|
|
(f) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the
Arranger or the Security Agent for their own account) under this Agreement, it shall promptly notify the other Finance Parties.
|
|
(g) |
The Agent shall provide to the Borrower within five Business Days of a request by the Borrower (but no more frequently than once per calendar month), a list
(which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments and the address (and the department or officer, if any, for whose attention any communication is to be
made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of
information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment
to be distributed by the Agent to that Lender under the Finance Documents.
|
|
(h) |
The Agent and 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).
|
33.7 |
Role of the Arranger
|
33.8 |
No fiduciary duties
|
33.9 |
No duty to account
|
33.10 |
Business with the Group
|
33.11 |
Rights and discretions of the Agent and the Security Agent
|
|
(a) |
The Agent and 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 Lenders or other Finance Parties or any group of Lenders or other 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) |
in the case of the Security Agent, 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 Agent and the Security Agent may assume (unless it has received notice to the contrary in its capacity as agent or (as the case may be) security trustee
for the other Finance Parties) that:
|
|
(i) |
no Notifiable Debt Purchase Transaction:
|
|
(A) |
has been entered into;
|
|
(B) |
has been terminated; or
|
|
(C) |
has ceased to be with a Borrower Affiliate;
|
|
(ii) |
no Default has occurred (unless (in the case of the Agent) it has actual knowledge of a Default arising under clause 30.2
(Non-payment)
);
|
|
(iii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; an
|
|
(iv) |
any notice or request made by the Borrower (other than (in the case of the Agent) a Utilisation Request) is made on behalf of and with the consent and
knowledge of all the Obligors.
|
|
(c) |
Each of the Agent and the Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, insurance consultants, ship
managers, valuers, surveyors or other professional advisers or experts.
|
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, each of the Agent and the Security Agent may at any time engage and pay for
the services of any lawyers to act as independent counsel to it (and so separate from any lawyers instructed by the Lenders or any other Finance Party) if it, in its reasonable opinion, deems this to be necessary.
|
|
(e) |
Each of the Agent and the Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, insurance consultants, ship managers,
valuers, surveyors or other professional advisers or experts (whether obtained by it 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 Agent, the Security Agent, any Receiver and any Delegate may act in relation to the Finance Documents, the Transaction Security 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 any Finance Document expressly specifies otherwise, the Agent or the Security Agent may disclose to any other Party any information it reasonably
believes it has received as agent or security trustee under this Agreement.
|
|
(h) |
Without prejudice to the generality of paragraph (g) above, the Agent:
|
|
(i) |
may disclose; and
|
|
(ii) |
on the written request of the Borrower or the Majority Lenders shall, as soon as reasonably practicable, disclose,
|
|
(i) |
Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Security Agent nor the Arranger is 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, neither the Agent nor the Security Agent is 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.
|
|
(k) |
Neither the Agent nor the Arranger shall be obliged to request any certificate, opinion or other information under clause 20
(Information undertakings)
unless so required in writing by a Lender, in which case the Agent shall promptly make the appropriate request of the Borrower if
such request would be in accordance with the terms of this Agreement.
|
33.12 |
Responsibility for documentation and other matters
|
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Security Agent, the Arranger, an Obligor or any
other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in
connection with any Finance Document;
|
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with any Transaction Document, the Transaction Security or the Security Property;
|
|
(c) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
|
(d) |
(in the case of the Security Agent) any loss to the Security Property arising in consequence of the failure, depreciation or loss of any Charged Property or
any investments made or retained in good faith or by reason of any other matter or thing;
|
|
(e) |
the failure of any Obligor or any other party to perform its obligations under any Transaction Document or the financial condition of any such person;
|
|
(f) |
(save as otherwise provided in this clause 33) taking or omitting to take any other action under or in relation to the Security Documents;
|
|
(g) |
any other beneficiary of a Security Document failing to perform or discharge any of its duties or obligations under any Finance Document; or
|
|
(h) |
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or
prohibited by any applicable law or regulation relating to insider dealing or otherwise.
|
33.13 |
No duty to monitor
|
|
(a) |
whether or not any Default has occurred;
|
|
(b) |
as to the performance, default or any breach by any Party or any Obligor of its obligations under any Finance Document; or
|
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
33.14 |
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 Agent,
the Security Agent, any Receiver or Delegate), none of the Agent, the Security Agent, any Receiver nor any Delegate will be liable (including, without limitation, for negligence or any other category of liability whatsoever) 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
|
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance 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 Finance Document or the Security Property;
|
|
(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, losses, any diminution in value or any liability whatsoever arising
as a result of:
|
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
|
(b) |
No Party (other than the Agent, the Security Agent, that Receiver or that Delegate (as applicable)) may take any proceedings against any officer, employee or
agent of the Agent, the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Agent, the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Agent, the Security Agent, a Receiver or a Delegate may rely on this clause subject to clause 1.4
(Third party rights)
and the provisions of the Third Parties Act.
|
|
(c) |
Neither of the Agent or the Security Agent will 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 it if it 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 it for that
purpose.
|
|
(d) |
Nothing in any Finance Document shall oblige the Agent, the Security Agent or the Arranger to carry out:
|
|
(i) |
any “know your customer” or other checks in relation to any person; or
|
|
(ii) |
any check on the extent to which any transaction contemplated by any of the Finance Documents might be unlawful for any Finance Party or for any Affiliate of
any Finance Party,
|
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Agent, the Security Agent, any Receiver or any Delegate,
any liability of the Agent, the Security Agent, any Receiver or any Delegate arising under or in connection with any Finance 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 Agent, the Security Agent, Receiver or Delegate (as the case may be) 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 Agent, the Security Agent, Receiver or Delegate (as the case may be) at any time which increase the amount of that loss. In no event shall the
Agent, the Security Agent, any Receiver or any 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
Agent, the Security Agent, Receiver or Delegate (as the case may be) has been advised of the possibility of such loss or damages.
|
33.15 |
Lenders’ indemnity to the Agent and others
|
|
(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 being reduced to zero) indemnify the Agent, the Security Agent, every Receiver and every Delegate, within three Business Days of demand, against any Losses (including, without limitation, for negligence or any
other category of liability whatsoever) incurred by any of them (otherwise than by reason of the relevant Agent’s, Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct) (or, in the circumstances contemplated
pursuant to clause 39.11
(Disruption to payment systems etc,
notwithstanding the Agent’s negligence, gross negligence, or any
other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent, Security Agent, Receiver or Delegate under, or exercising any authority conferred under, the Finance Documents
(unless the relevant Agent, Security Agent, Receiver or Delegate has been reimbursed by an 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 Agent or the Security
Agent or any Receiver or Delegate pursuant to paragraph (a) above.
|
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the
Agent or the Security Agent to an Obligor.
|
33.16 |
Resignation of the Agent or the Security Agent
|
|
(a) |
The Agent or 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 Agent or 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 Agent or Security Agent.
|
|
(c) |
If the Majority Lenders have not appointed a successor Agent or Security Agent in accordance with paragraph (b) above within 20 days after notice of
resignation was given, the retiring Agent or Security Agent (after consultation with (in the case of the Agent) the Borrower or (in the case of the Security Agent) the Agent) may appoint a successor Agent or Security Agent.
|
|
(d) |
If the Agent or Security Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent or
trustee and the
|
|
(e) |
The retiring Agent or Security Agent shall make available to the successor Agent or Security Agent such documents and records and provide such assistance as
the successor Agent or Security Agent may reasonably request for the purposes of performing its functions as Agent or (as the case may be) Security Agent under the Finance Documents. The Borrower shall, within three Business Days of
demand, reimburse the retiring Agent or (as the case may be) Security Agent for the amount of all costs and expenses (including legal fees) (together with any applicable VAT) properly incurred by it in making available such documents
and records and providing such assistance.
|
|
(f) |
The Agent’s or Security Agent’s resignation notice shall only take effect upon:
|
|
(i) |
the appointment of a successor; and
|
|
(ii) |
(in the case of the Security Agent) the transfer or assignment of all the Transaction Security and the other Security Property to that successor and any
appropriate filings or registrations, any notices of transfer or assignment and the payment of any fees or duties related to such transfer or assignment which the Security Agent considers necessary or advisable have been duly completed.
|
|
(g) |
Upon the appointment of a successor, the retiring Agent or Security Agent shall be discharged from any further obligation in respect of the Finance Documents
(other than its obligations under paragraph (b) of clause 34.10
(Winding up of trust)
and paragraph (e) above) but shall remain
entitled to the benefit of clauses 15.3
((Indemnity to the Agent and the Security Agent)
and 15.4
(Indemnify concerning security)
and this clause 33 (and any agency or other fees for the account of the retiring Agent or Security Agent in its capacity as
such 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 that successor had been an
original Party.
|
|
(h) |
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor 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 Agent under the Finance Documents, either:
|
|
(i) |
the Agent fails to respond to a request under clause 13.7
(FATCA
Information)
and the Borrower or a Lender reasonably believes that the 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 Agent pursuant to clause 13.7
(FATCA Information)
indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
|
(iii) |
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application
Date,
|
33.17 |
Replacement of the Agent
|
|
(a) |
After consultation with the Borrower, the Majority Lenders may, by giving 30 days’ notice to the Agent (or, at any time the Agent is an Impaired Agent, by
giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent.
|
|
(b) |
The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Agent such
documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
|
(c) |
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this
date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of clauses 15.3
((Indemnity to the Agent and the Security Agent)
and 15.4
(Indemnity concerning security)
and this clause 33 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
|
|
(d) |
Any successor Agent 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.
|
33.18 |
Replacement of the Security Agent
|
33.19 |
Confidentiality
|
|
(a) |
In acting as agent or trustee for the Finance Parties, the Agent or (as the case may be) the Security Agent shall be regarded as acting through its agency,
trustee or other division or department directly responsible for the management of the Finance Documents which shall be treated as a separate entity from any other of its divisions or departments.
|
|
(b) |
If information is received by another division or department of the Agent or (as the case may be) Security Agent, it may be treated as confidential to that
division or department and the Agent or (as the case may be) Security Agent shall not be deemed to have notice of it.
|
|
(c) |
Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Security Agent nor the Arranger is obliged to disclose to
any other person
|
33.20 |
Agent’s relationship with the Lenders
|
|
(a) |
The Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as notified to the
Finance Parties from time to time) as the Lender acting through its Facility Office:
|
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or
delivered on that day,
|
|
(b) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or
despatched to that Lender under the Finance Documents. Such notice shall contain the address and (where communication by electronic mail or other electronic means is permitted under clause 41.6
(Electronic communication)
)
electronic mail address
and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a
notification of a substitute address, electronic mail address, department and officer (or such other information) by that Lender for the purposes of clause 41.2
(Addresses)
and clause 41.6
(Electronic communication)
and the Agent shall be entitled to
treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender or (as the case may be).
|
33.21 |
Information from the Finance Parties
|
33.22 |
Credit appraisal by the Finance Parties
|
|
(a) |
the financial condition, status and nature of each Obligor and other Group Member;
|
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Transaction Security, 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, the Transaction Security or the Security Property;
|
|
(c) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
|
(d) |
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 Finance Document, the Transaction Security, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under
or in connection with any Finance Document, the Transaction Security or the Security Property;
|
|
(e) |
the adequacy, accuracy or completeness of any information provided by the Agent, the Security Agent, the Arranger or any other 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
|
|
(f) |
the right or title of any person in or to, or the value or sufficiency of, any part of the Charged Property, the priority of any of the Transaction Security
or the existence of any Security Interest affecting the Charged Property.
|
33.23 |
Deduction from amounts payable by the Agent
|
33.24 |
Reliance and engagement letters
|
34 |
Trust and security matters
|
34.1 |
Undertaking to pay
|
|
(a) |
Each Obligor who is a Party undertakes with the Security Agent as trustee for the Finance Parties that it will, on demand by the Security Agent, pay to the
Security Agent as trustee for the Finance Parties all money from time to time owing to the other Finance Parties (in addition to paying any money owing under the Finance Documents to the Security Agent for its own account), and
discharge all other obligations from time to time incurred, by it under or in connection with the Finance Documents.
|
|
(b) |
Each payment which such an Obligor makes to another Finance Party in accordance with any Finance Document shall, to the extent of the amount of that payment,
satisfy that Obligor’s corresponding obligation under paragraph (a) above to make that payment to the Security Agent.
|
342 |
Parallel debt
|
|
(a) |
Additional definitions
|
|
(b) |
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.
|
|
(c) |
The Parallel Debt of an Obligor:
|
|
(i) |
shall become due and payable at the same time as its Corresponding Debt; and
|
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
|
(d) |
For purposes of this clause 34.2, 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).
|
|
(e) |
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,
|
|
(f) |
All amounts received or recovered by the Security Agent in connection with this clause 34.2 to the extent permitted by applicable law, shall be applied in
accordance with clause 36.1
(Order of application)
.
|
|
(g) |
This clause 34.2 shall apply, with any necessary modifications, to each Finance Document.
|
34.3 |
No responsibility to perfect Transaction Security
|
|
(a) |
ascertain whether all deeds and documents which should have been deposited with it under or pursuant to any of the Security Documents have been so deposited;
|
|
(b) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property;
|
|
(c) |
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;
|
|
(d) |
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;
|
|
(e) |
take, or to require any Obligor to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security effective or to
secure the creation of any ancillary Security Interest under any law or regulation; or
|
|
(f) |
require any further assurance in relation to any Security Document.
|
34.4 |
Insurance by Security Agent
|
|
(a) |
The Security Agent shall not be obliged:
|
|
(i) |
to insure any of the Charged Property;
|
|
(ii) |
to require any other person to maintain any insurance; or
|
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a
result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Agent requests it to do so in writing and the Security Agent fails to do so
within fourteen days after receipt of that request.
|
34.5 |
Common parties
|
34.6 |
Custodians and nominees
|
34.7 |
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 Finance 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.
|
34.8 |
Additional trustees
|
|
(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 Finance Parties;
|
|
(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.
|
|
(d) |
At the request of the Security Agent, the other Parties shall forthwith execute all such documents and do all such things as may be required to perfect such
appointment or removal and each such Party irrevocably authorises the Security Agent in its name and on its behalf to do the same.
|
|
(e) |
Such a person shall accede to this Agreement as a Security Agent to the extent necessary to carry out their role on terms satisfactory to the Security Agent.
|
|
(f) |
The Security Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of, any such person if the
Security Agent shall have exercised reasonable care in the selection of such person.
|
34.9 |
Acceptance of title
|
34.10 |
Winding up of trust
|
|
(a) |
all of the Secured Obligations and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
|
(b) |
no Finance Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any
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 33.16
(Resignation of the Agent or the Security Agent)
shall release, without recourse or warranty, all of its rights under each Security Document.
|
34.11 |
Powers supplemental to Trustee Acts
|
34.12 |
Disapplication of Trustee Acts
|
35 |
Enforcement of Transaction Security
|
35.1 |
Enforcement Instructions
|
|
(a) |
The Security Agent may refrain from enforcing the Transaction Security unless instructed otherwise by Majority Lenders.
|
|
(b) |
Subject to the Transaction Security having become enforceable in accordance with its terms, the Majority Lenders may give or refrain from giving instructions
to the Security Agent to enforce or refrain from enforcing the Transaction Security as they see fit.
|
|
(c) |
The Security Agent is entitled to rely on and comply with instructions given in accordance with this clause 35.1.
|
35.2 |
Manner of enforcement
|
35.3 |
Waiver of rights
|
35.4 |
Enforcement through Security Agent only
|
|
(a) |
The other Finance Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any right,
power, authority or discretion arising or to grant any consents or releases under the Security Documents except through the Security Agent.
|
|
(b) |
Each Finance Party (other than the Security Agent) shall, promptly upon being requested by the Agent to do so, grant a power of attorney or other sufficient
authority to the Security Agent to enable the Security Agent to enforce or have recourse to the relevant Transaction Security or to exercise any such right, power, authority or discretion or to grant any such consent or release.
|
36 |
Application of proceeds
|
36.1 |
Order of application
|
|
(a) |
in discharging any sums owing to the Security Agent (other than pursuant to clause 34.1
(Undertaking to
pay) or 34.2
(Parallel debt)
),
any Receiver or any Delegate;
|
|
(b) |
in discharging all costs and expenses incurred by any Finance Party in connection with any realisation or enforcement of the Transaction Security taken in
accordance with the terms of this Agreement;
|
|
(c) |
in payment or distribution to the Agent on its own behalf and on behalf of the other Finance Parties for application in accordance with clause 39.6
(Partial payments)
;
|
|
(d) |
if none of the 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 Obligor; and
|
|
(e) |
the balance, if any, in payment or distribution to the relevant Obligor.
|
36.2 |
Investment of cash proceeds
|
|
(a) |
all or part of any Recoveries which are in the form of cash; and
|
|
(b) |
any cash which is generated by holding, managing, exploiting, collecting, realising or disposing of any proceeds of the Security Property which are not in the
form of cash,
|
36.3 |
Currency conversion
|
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Obligations the Security Agent may:
|
|
(i) |
convert any moneys received or recovered by the Security Agent from one currency to another; and
|
|
(ii) |
notionally convert the valuation provided in any opinion or valuation from one currency to another,
|
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied:
|
|
(i) |
in the case of paragraph (a)(i) above, to the extent of the amount of the due currency purchased after deducting the costs of conversion; and
|
|
(ii) |
in the case of paragraph (a)(ii) above, to the extent of the amount of the due currency which results from the notional conversion referred to in that
paragraph.
|
36.4 |
Permitted Deductions
|
36.5 |
Good discharge
|
|
(a) |
Any distribution or payment to be made in respect of the Secured Obligations by the Security Agent may be made to the Agent on behalf of the Finance Parties.
|
|
(b) |
Any distribution or payment made as described in paragraph (a) above shall be a good discharge, to the extent of that payment or distribution, by the Security
Agent to the extent of that payment.
|
|
(c) |
The Security Agent is under no obligation to make the payments to the Agent under paragraph (a) above in the same currency as that in which the Secured
Liabilities owing to the relevant Finance Party are denominated pursuant to the relevant Finance Document.
|
36.6 |
Calculation of amounts
|
|
(a) |
notionally convert the Secured Liabilities owed to any person into a common base currency (decided in its discretion by the Security Agent), that notional
conversion to be made at the spot rate at which the Security Agent is able to purchase the notional base currency with the actual currency of the Secured Liabilities owed to that person at the time at which that calculation is to be
made; and
|
|
(b) |
assume that all amounts received or recovered as a result of the enforcement or realisation of the Security Property are applied in discharge of the Secured
Liabilities in accordance with the terms of the Finance Documents under which those Secured Liabilities have arisen.
|
36.7 |
Release to facilitate enforcement and realisation
|
|
(a) |
Each Finance Party acknowledges that, for the purpose of any enforcement action by the Security Agent or a Receiver and/or maximising or facilitating the
realisation of the Charged Property, it may be desirable that certain rights or claims against an Obligor and/or under certain of the Transaction Security, be released.
|
|
(b) |
Each other Finance Party hereby irrevocably authorises the Security Agent (acting on the instructions of the Agent) to grant any such releases to the extent
necessary to effect such enforcement action and/or realisation including, to the extent necessary for such purpose, to execute release documents in the name of and on behalf of the other Finance Parties.
|
|
(c) |
Where the relevant enforcement is by way of disposal of shares in the Borrower, the requisite release may include releases of all claims (including under
guarantees) of the Finance Parties and/or the Security Agent against the Borrower and of all Security Interests over the assets of the Borrower.
|
36.8 |
Dealings with Security Agent
|
36.9 |
Disclosure between Finance Parties and Security Agent
|
36.10 |
Notification of prescribed events
|
|
(a) |
If an Event of Default or Default either occurs or ceases to be continuing, the Agent shall, upon becoming aware of that occurrence or cessation, notify the
Security Agent.
|
|
(b) |
If the Security Agent enforces, or takes formal steps to enforce, any of the Transaction Security it shall notify each other Finance Party of that action.
|
|
(c) |
If any Finance Party exercises any right it may have to enforce, or to take formal steps to enforce, any of the Transaction Security it shall notify the
Security Agent and the Security Agent shall, upon receiving that notification, notify each other Finance Party of that action.
|
37 |
Conduct of business by the Finance Parties
|
37.1 |
Finance Parties tax affairs
|
|
(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.
|
38 |
Sharing among the Finance Parties
|
38.1 |
Payments to Finance Parties
|
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
|
(b) |
the 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 Agent and distributed in accordance with clause 39
(Payment mechanics),
without taking
account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the
Sharing Payment
)
equal to such receipt or recovery less
any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with clause 39.6
(Partial payments)
.
|
38.2 |
Redistribution of payments
|
38.3 |
Recovering Finance Party’s rights
|
38.4 |
Reversal of redistribution
|
|
(a) |
each Sharing Finance Party shall, upon request of the Agent, pay to the 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 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 Obligor.
|
38.5 |
Exceptions
|
|
(a) |
This clause 38 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 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;
|
|
(ii) |
the taking legal or arbitration proceedings was in accordance with the terms of this Agreement; and
|
|
(iii) |
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.
|
39 |
Payment mechanics
|
39.1 |
Payments to the Agent
|
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to
the 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 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 Agent) and with such bank as the Agent, in each case, specifies.
|
39.2 |
Distributions by the Agent
|
39.3 |
Distributions to an Obligor
|
39.4 |
Clawback and pre-funding
|
|
(a) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
|
(b) |
Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the 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 Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date
of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
|
(c) |
If the Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders
then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower:
|
|
(i) |
the Agent shall notify the Borrower of that Lender’s identity and the Borrower shall on demand refund it to the Agent; and
|
|
(ii) |
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower, shall on demand pay to the Agent the amount
(as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
39.5 |
Impaired Agent
|
|
(a) |
If, at any time, the Agent becomes an Impaired Agent, the Borrower or a Lender which is required to make a payment under the Finance Documents to the Agent in
accordance with clause 39.1
(Payments to the Agent)
may instead either:
|
|
(i) |
pay that amount direct to the required recipient(s); or
|
|
(ii) |
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or
the relevant part of that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” and in relation to which no Insolvency Event has occurred and is
continuing, in the name of the Borrower or the Lender making the payment (the
Paying Party
) and designated as a trust account for
the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the
Recipient Party
or
Recipient Parties
).
|
|
(b) |
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro
rata to their respective entitlements.
|
|
(c) |
A Party which has made a payment in accordance with this clause 39.5 shall be discharged of the relevant payment obligation under the Finance Documents and
shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
|
|
(d) |
Promptly upon the appointment of a successor Agent in accordance with this Agreement, each Paying Party shall (other than to the extent that that Party has
given an instruction pursuant to paragraph (e) below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to
the relevant Recipient Party or Recipient Parties in accordance with clause 39.2
(Distributions by the Agent)
.
|
|
(e) |
A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
|
|
(i) |
that it has not given an instruction pursuant to paragraph (d) above; and
|
|
(ii) |
that it has been provided with the necessary information by that Recipient Party,
|
39.6 |
Partial payments
|
|
(a) |
If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts then
due and payable by an Obligor under those Finance Documents, the Agent shall apply that payment
|
|
(i) |
first,
in or towards payment pro rata of any unpaid
amount owing to the Agent, the Security Agent or the Arranger for their own account under those Finance Documents;
|
|
(ii) |
secondly,
in or towards payment to the Lenders pro
rata of
any amount owing to the Lenders under clause 33.15
(Lenders’ indemnity to the Agent and others)
;
|
|
(iii) |
thirdly,
in or towards payment to the Lenders pro rata
of all other amounts due to them but unpaid under the Finance Documents; and
|
|
(iv) |
fourthly,
in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
|
|
(b) |
The Agent shall, if so directed by all the Lenders and with prior written notice to the Obligors, vary the order set out in paragraphs (ii) to (iv) of
paragraph (a) above.
|
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
39.7 |
No set-off by Obligors
|
39.8 |
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 Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the
rate payable on the original due date.
|
39.9 |
Currency of account
|
|
(a) |
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
|
(b) |
A repayment of all or part of the Loan or an Unpaid Sum and each payment of interest shall be made in dollars on its due date.
|
|
(c) |
Each payment in respect of the amount of any costs, expenses or Taxes or other fosses shall be made in dollars and, if they were incurred in a currency other
than dollars, the amount payable under the Finance Documents shall be the equivalent in dollars of the relevant amount in such other currency on the date on which it was incurred.
|
|
(d) |
All moneys received or held by the Security Agent or by a Receiver under a Security Document in a currency other than dollars may be sold for dollars and the
Obligor which executed that Security Document shall indemnify the Security Agent against the full cost in relation to the sale. Neither the Security Agent nor such Receiver will have any liability to that Obligor in respect of any loss
resulting from any fluctuation in exchange rates after the sale.
|
39.10 |
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 Agent (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 Agent (acting reasonably).
|
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Borrower)
specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Interbank Market and otherwise to reflect the change in currency.
|
39.11 |
Disruption to payment systems etc.
|
|
(a) |
the 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 Agent may deem necessary in the circumstances;
|
|
(b) |
the Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its reasonable 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 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 Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding
upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of clause 45
(Amendments and waivers)
;
|
|
(e) |
the 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 Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in
connection with this clause 39.11; and
|
|
(f) |
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
40 |
Set-off
|
41 |
Notices
|
41.1 |
Communications in writing
|
41.2 |
Addresses
|
|
(a) |
in the case of any Obligor who is a Party, that identified with its name in Schedule 1
(The original parties)
;
|
|
(b) |
in the case of any Obligor which is not a Party, that identified in any Finance Document to which it is a party;
|
|
(c) |
in the case of the Security Agent, the Agent and any other original Finance Party, that identified with its name in Schedule
1
(The original parties)
;
and
|
|
(d) |
in the case of each Lender or other Finance Party, that notified in writing to the Agent on or prior to the date on which it becomes a Party in the relevant
capacity,
|
41.3 |
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 when it has
been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address and, if a particular department or officer is specified as part of its address
details provided under clause 41.2
(Addresses),
if addressed to that department or officer.
|
|
(b) |
Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or the
Security Agent and then only if it is expressly marked for the attention of the department or officer identified in Schedule 1
(The
original parties)
(or any substitute department or officer as the Agent or the Security Agent shall specify for this purpose).
|
|
(c) |
All notices from or to an Obligor shall be sent through the Agent.
|
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this clause 41.3 will be deemed to have been made or delivered to each of
the 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.
|
41.4 |
Notification of address
|
41.5 |
Communication when Agent is Impaired Agent
|
41.6 |
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 Agent or the Security Agent, only if it is addressed in such a manner as the 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 or any other Finance Document 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 41.6.
|
41.7 |
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 Agent, accompanied by a certified English translation and, in this case, the English translation will prevail
unless the document is a constitutional, statutory or other official document.
|
42 |
Calculations and certificates
|
42.1 |
Accounts
|
42.2 |
Certificates and determinations
|
42.3 |
Day count convention
|
43 |
Partial invalidity
|
44 |
Remedies and waivers
|
45 |
Amendments and waivers
|
45.1 |
Required consents
|
|
(a) |
Subject to clause 45.2
(All Lender matters)
and
clause 45.3
(Other exceptions),
any term of the Finance Documents may be amended or waived only with the consent of the Majority
Lenders and the Borrower and any such amendment or waiver will be binding on all the Finance Parties and other Obligors.
|
|
(b) |
The Agent may (or, in the case of the Security Documents, instruct the Security Agent to) effect, on behalf of any Finance Party, any amendment or waiver
permitted by this clause 45.
|
|
(c) |
Without prejudice to the generality of paragraphs (c), (d) and (e) of clause 33.11
(Rights and discretions of the Agent),
the Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent
under this Agreement.
|
|
(d) |
Each Obligor agrees to any such amendment or waiver permitted by this clause 45 which is agreed to by the Borrower. This includes any amendment or waiver
which would, but for this paragraph (d), require the consent of a Guarantor.
|
45.2 |
All Lender matters
|
|
(a) |
the definition of “Majority Lenders” in clause 1.1
(Definitions)
;
|
|
(b) |
the definition of “Last Availability Date” in clause 1.1
(Definitions)
;
|
|
(c) |
an extension to the date of payment of any amount under the Finance Documents;
|
|
(d) |
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable or the rate at which they are
calculated;
|
|
(e) |
an increase in, or an extension of, any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under
the Facility;
|
|
(f) |
a change to the Borrower or any other Obligor;
|
|
(g) |
any provision which expressly requires the consent or approval of
all
the Lenders;
|
|
(h) |
clause 38
(Sharing among the Finance Parties)
;
|
|
(i) |
clause 2.2
(Finance Parties’ rights and obligations),
clause
7.1
(Illegality),
clause 31
(Changes
to the Lenders),
clause 8.9
(Application of prepayments),
this clause 45, clause 50
(Governing
law) or clause 51.1
(Jurisdiction of English
courts)
;
|
|
(j) |
the order of distribution under clause 36.1
(Order of
application)
;
|
|
(k) |
the order of distribution under clause 39.6
(Partial
payments)
;
|
|
(l) |
the currency in which any amount is payable under any Finance Document;
|
|
(m) |
an increase in any Commitment or the Total Commitments, an extension of any period within which the Facility is available for Utilisation or any requirement
that a cancellation of Commitments reduces the Commitments rateably;
|
|
(n) |
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:
|
|
(i) |
any guarantee and indemnity granted under any Finance Document (including under clause 18
(Guarantee and indemnity)
);
|
|
(ii) |
the Charged Property; or
|
|
(iii) |
the manner in which the proceeds of enforcement of the Transaction Security are distributed;
|
|
(o) |
the circumstances in which any of the Transaction Security is permitted or required to be released under any of the Finance Documents,
|
45.3 |
Other exceptions
|
|
(a) |
An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent or the Arranger in their respective capacities as such (and
not just as a Lender) may not be effected without the consent of the Agent, the Security Agent or the Arranger (as the case may be).
|
|
(b) |
Notwithstanding clauses 45.1 and 45.2 and paragraph (a) above, the Agent may make technical amendments to the Finance Documents arising out of manifest errors
on the face of the Finance Documents, where such amendments would not prejudice or otherwise be adverse to the interests of any Finance Party without any reference or consent of the Finance Parties.
|
45.4 |
Replacement of Screen Rate
|
45.5 |
Releases
|
|
(a) |
any Charged Property from the Transaction Security; or
|
|
(b) |
any Obligor from any of its guarantee or other obligations under any Finance Document.
|
45.6 |
Disenfranchisement of Defaulting Lenders
|
|
(a) |
For so long as a Defaulting Lender has any Available Commitment, in ascertaining:
|
|
(i) |
the Majority Lenders; or
|
|
(ii) |
whether:
|
|
(A) |
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments under the Facility; or
|
|
(B) |
the agreement of any specified group of Lenders,
|
|
(b) |
For the purposes of this clause 45.6, the Agent may assume that the following Lenders are Defaulting Lenders:
|
|
(i) |
any Lender which has notified the Agent that it has become a Defaulting Lender; and
|
|
(ii) |
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of “Defaulting
Lender” has occurred,
|
45.7 |
Excluded Commitments
|
|
(a) |
any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote
of Lenders under the terms of this Agreement within 10 Business Days of that request being made; or
|
|
(b) |
any Lender which is not a Defaulting Lender fails to respond to such a request (other than an amendment, waiver or consent referred to in paragraphs (b), (c),
(d) and (m) of clause 45.2
(All Lender matters)
)
or such a vote within 10 Business Days of that request being made,
|
|
(i) |
its Commitment or its participation in the Loan shall not be included for the purpose of calculating the Total Commitments or the amount of the Loan when
ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments or the amount of the Loan 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.
|
45.8 |
Replacement of a Defaulting Lender
|
|
(a) |
The Borrower may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 10 Business Days’ prior notice to the Agent and such
Lender replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) assign pursuant to clause 31
(Changes
to the Lenders)
all (and not part only) of its rights under this Agreement (and any Security Document to which that Lender is a party in its capacity as a Lender) to an Eligible Institution (a
Replacement Lender
)
which confirms its willingness to
undertake and does undertake all the obligations or all the relevant obligations of the assigning Lender in accordance with clause 31
(Changes
to the Lenders)
for a purchase price in cash payable at the time of transfer which is either:
|
|
(i) |
in an amount equal to:
|
|
(A) |
the outstanding principal amount of such Lender’s participation in the Loan;
|
|
(B) |
all accrued interest owing to such Lender;
|
|
(C) |
the Break Costs which would have been payable to such Lender pursuant to clause 11.5
(Break Costs)
had the Borrower prepaid in full that Lender’s participation in the Loan on the date of the assignment; and
|
|
(D) |
all other amounts payable to that Lender under the Finance Documents on the date of the assignment; or
|
|
(ii) |
in an amount agreed between that Defaulting Lender, the Replacement Lender and the Borrower and which does not exceed the amount described in paragraph (i)
above.
|
|
(b) |
Any assignment by a Defaulting Lender pursuant to this clause 45.8 shall be subject to the following conditions:
|
|
(i) |
the Borrower shall have no right to replace the Agent or the Security Agent;
|
|
(ii) |
neither the Agent nor the Defaulting Lender shall have any obligation to the Borrower to find a Replacement Lender;
|
|
(iii) |
the assignment must take place no later than five Business Days after the notice referred to in paragraph (a) above;
|
|
(iv) |
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant
to the Finance Documents; and
|
|
(v) |
the Defaulting Lender shall only be obliged to assign its rights pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary
“know your customer” or other similar checks under all applicable laws and regulations in relation to that assignment to the Replacement Lender.
|
|
(c) |
The Defaulting Lender shall perform the checks described in paragraph (b) (v) above as soon as reasonably practicable following delivery of a notice referred
to in paragraph (a) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.
|
45.9 |
Disenfranchisement of Borrower Affiliates
|
|
(a) |
For so long as a Borrower Affiliate:
|
|
(i) |
beneficially owns a Commitment; or
|
|
(ii) |
has entered into a sub-participation agreement relating to a Commitment or other agreement or arrangement having a substantially similar economic effect and
such agreement or arrangement has not been terminated,
|
|
(A) |
the Majority Lenders; or
|
|
(B) |
whether:
|
|
(1) |
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or
|
|
(2) |
the agreement of any specified group of Lenders,
|
|
(b) |
Each Lender shall, unless such Debt Purchase Transaction is an assignment or transfer, promptly notify the Agent in writing if it knowingly enters into a Debt
Purchase Transaction with a Borrower Affiliate (a Notifiable Debt Purchase Transaction), such notification to be substantially in the form set out in Part I of Schedule 6
(Forms of Notifiable Debt Purchase Transaction Notice)
.
|
|
(c) |
A Lender shall promptly notify the Agent if a Notifiable Debt Purchase Transaction to which it is a party:
|
|
(i) |
is terminated; or
|
|
(ii) |
ceases to be with a Borrower Affiliate,
|
|
(d) |
Each Borrower Affiliate that is a Lender agrees that:
|
|
(i) |
in relation to any meeting or conference call to which all the Lenders are invited to attend or participate, it shall not attend or participate in the same if
so requested by the Agent or, unless the Agent otherwise agrees, be entitled to receive the agenda or any minutes of the same; and
|
|
(ii) |
in its capacity as Lender, unless the Agent otherwise agrees, it shall not be entitled to receive any report or other document prepared at the behest of, or
on the instructions of, the Agent or one or more of the Lenders.
|
46 |
Confidential Information
|
46.1 |
Confidential Information
|
46.2 |
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 may potentially assign) 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 Agent or Security Agent and, in each case, to any of that person’s Affiliates, Related Funds, Representatives, professional advisers and partners;
|
|
(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 Obligors and to any of that person’s Affiliates, Related Funds, Representatives, professional advisers and
partners;
|
|
(iii) |
appointed by any Finance Party or by a person to whom paragraphs (b)(i) or (b)(ii) 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 (b) of clause 33.20
(Relationship with the Lenders)
);
|
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraphs
(b)(i) or (b)(ii) 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, arbitration, 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 31.8
(Security over Lenders’ rights)
;
|
|
(viii) |
who is a Party; or
|
|
(ix) |
with the consent of the Borrower;
|
|
(c) |
to any person appointed by that Finance Party or by a person to whom paragraphs (b)(i) or (b)(ii) 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 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 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 Obligors.
|
46.3 |
Entire agreement
|
46.4 |
Inside information
|
46.5 |
Notification of disclosure
|
|
(a) |
of the circumstances of any disclosure of Confidential Information made to 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 or the rules of any relevant stock exchange or pursuant to any applicable law or regulation pursuant to clause 46.2
(Disclosure of Confidential Information)
except where such disclosure is made to any such person during the ordinary course of its
supervisory or regulatory function; and
|
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this clause 46.
|
46.6 |
Continuing obligations
|
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents 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.
|
47 |
Confidentiality of Funding Rates
|
47.1 |
Confidentiality and disclosure
|
|
(a) |
The Agent and each Obligor who is a Party 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 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
Agent and the relevant Lender.
|
|
(c) |
The Agent 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 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 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 Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
|
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other
investigations, proceedings or disputes if the person to whom that 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 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.
|
47.2 |
Related obligations
|
|
(a) |
The 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 Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose.
|
|
(b) |
The 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 clause 47.1(c)(ii)
(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 47.
|
47.3 |
No Event of Default
|
48 |
Counterparts
|
49 |
Contractual recognition of 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.
|
50 |
Governing law
|
51 |
Enforcement
|
51.1 |
Jurisdiction of English courts
|
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or any non-contractual obligations
connected with it (including a dispute regarding the existence, validity or termination of this Agreement) (a
Dispute
).
|
|
(b) |
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
|
|
(c) |
Notwithstanding paragraph (a) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction.
To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
51.2 |
Service of process
|
|
(a) |
irrevocably appoints the person named in Schedule 1
(The
original parties)
as that Obligor’s English process agent as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document;
|
|
(b) |
agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned; and
|
|
(c) |
if any person appointed as process agent for an Obligor is unable for any reason to act as agent for service of process, that Obligor must immediately (and in
any event within ten 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.
|
Name:
|
PCH77 Shipping Company Limited
|
Original Jurisdiction
|
The Republic of the Marshall Islands
|
Registration number
(or equivalent, if any) |
92923
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Address for service of notices
|
c/o Central Mare Inc.
1, Vas. Sofias Street & Meg. Alexandrou, 151 24 Maroussi,
Greece
Attn: Andreas Louka
Email:
louka@loukapartners.com
Tel: +30 210 812 8320
|
English process agent (if not incorporated in England)
|
Top Properties (London) Limited
247 Gray’s Inn Road, London WC1X 8QZ, United Kingdom
|
Name:
|
Top Ships Inc.
|
Original Jurisdiction
|
The Republic of the Marshall Islands
|
Registration number
(or equivalent, if any) |
3571
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Address for service of notices
|
c/o Central Mare Inc.
1, Vas. Sofias Street & Meg. Alexandrou, 151 24 Maroussi,
Greece
Attn: Andreas Louka
Email:
louka@loukapartners.com
Tel: +30 210 812 8320
|
English process agent (if not incorporated in England)
|
Top Properties (London) Limited
247 Gray’s Inn Road, London WC1X 8QZ, United Kingdom
|
Name:
|
Astarte International Inc.
|
Original Jurisdiction
|
The Republic of the Marshall Islands
|
Registration number
(or equivalent, if any) |
89977
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Address for service of notices
|
c/o Central Mare Inc.
1, Vas. Sofias Street & Meg. Alexandrou, 151 24 Maroussi, Greece
Attn: Andreas Louka
Email: louka@loukapartners.com
Tel: +30 210 812 8320
|
English process agent (if not incorporated in England)
|
Top Properties (London) Limited
247 Gray’s Inn Road, London WC1X 80Z, United Kingdom
|
Name
|
Amsterdam Trade Bank N.V.
|
Commitment $
|
10,140,000
|
TOTAL $
|
10,140,000
|
Total Commitments $
|
10,140,000
|
TOTAL $
|
10,140,000
|
Name
|
Amsterdam Trade Bank N.V.
|
Facility Office, address and attention details for notices
|
Non-administrative matters:
World Trade Center
Tower I, Level 6
Strawinskylaan 1939
1077 XX Amsterdam
The Netherlands
Attn: Iraklis Tsirigotis / Vassilis Kolovos
Email:
i.tsirigotis@atbank.nl
/
v.kolovos@atbank.nl
Cc: shipping.finance@atbank.n1
Telephone No.: +31 (0) 205 209 404 / +31 (0) 205 209 204
Administrative matters:
World Trade Center
Tower I, Level 6
|
Strawinskylaan 1939
1077 XX Amsterdam
The Netherlands
Attn: Ruben Paniry
Email: shipping.finance@atbank.n1
Cc:
i.tsirigotis@atbank.nl
/
v.kolovos@atbank.nl
Telephone No.: +31 (0) 205 209 247 / +31 (0) 205 209 404 / +31 (0) 205 209 204
|
Name
|
Amsterdam Trade Bank N.V.
|
Facility Office, address and attention details for notices
|
Non-administrative matters
:
World Trade Center
Tower I, Level 6
Strawinskylaan 1939
1077 XX Amsterdam
The Netherlands
Attn: Iraklis Tsirigotis / Vassilis Kolovos
Email:
i.tsirigotis@atbank.nl
/
v.kolovos@atbank.nl
Cc: shipping.finance@atbank.n1
Telephone No.: +31 (0) 205 209 404 / +31 (0) 205 209 204
Administrative matters:
World Trade Center
Tower I, Level 6
Strawinskylaan 1939
1077 XX Amsterdam
The Netherlands
Attn: Ruben Paniry
Email:
shipping.finance@atbank.n1
Cc:
i.tsirigotis@atbank.nl
/
v.kolovos@atbank.nl
Telephone No.: +31 (0) 205 209 247 / +31 (0) 205 209 404 / +31 (0) 205 209 204
|
Name
|
Amsterdam Trade Bank N.V.
|
Address
and attention details for
notices
|
World Trade Center
Tower I, Level 6 Strawinskylaan 1939 |
1077 XX Amsterdam
The Netherlands
Attn:
Iraklis Tsirigotis / Vassilis Kolovos
Email:
i.tsirigotis@atbank.nl
/
v.kolovos@atbank.nl
|
Owner:
|
PCH77 Shipping Company Limited
|
Builder:
|
Hyundai Mipo Dockyard Co., Ltd.
|
Builder’s registered office:
|
100 Bangeojinsunhwan-Doro, Dung-Gu, Ulsan 44113, Korea
|
Hull Number:
|
8218
|
Scheduled Delivery Date:
|
31 January 2019
|
Date and description of Building Contract:
|
shipbuilding contract dated 31 October 2017 as amended and supplemented by Amendment No.1
thereto dated 14 May 2018
|
Contract Price:
|
$35,800,000
|
Date and number of Refund Guarantee:
|
20 December 2017 as amended and supplemented by Amendment No. 1 thereto dated 22 May 2018
with number 40997
|
Name and address of Refund Guarantor:
|
Swiss Re International SE Singapore Branch
12 Marina View, #16-01 Asia Square Tower 2, Singapore 018961
|
Charter description:
|
time charter dated 16 October 2017
|
Charterer:
|
Shell Tankers Singapore Private Limited
|
Classification:
|
(a)
+1A, Tanker for Oil & Chemicals, ESP, CSR, Ship Type 2 & 3, EO, BIS, TMON, CMON, ERS, LCS, SPM, COAT-PSPC(B), Inert, BWM(E(s),T), VCS(2B), CLEAN, Recyclable, ECA(SOx-A), ETC;
(b)
+KRS1 — Oil/Chemical Tanker(Double Hull) ‘ESP’ (FBC)(CSR) Crude/Product/II&III 2G/1.025SG (IBC)
SeaTrust(HCM)
IWS
IHM CLEAN1 PSPC LI EQ-SPM +KRM1 — UMA STCM BWT
IGS VECL COW
|
Classification Society:
|
(a)
DNV.GL
(main Classification Society); and
(b)
Korean
Register of Shipping (secondary Classification Society)
|
Major Casualty Amount:
|
$500,000
|
Owner:
|
Astarte International Inc.
|
Name of Ship:
|
Eco Palm Desert
|
Scheduled Delivery Date:
|
30 September 2018
|
Flag State:
|
The Republic of the Marshall Islands
|
Charter description:
|
together (a) the time charter dated 20 September 2017 between the Astarte Guarantor as owner
and the Charterer as time charterer and (b) the time charter dated 28 September 2017 between the Charterer as disponent owner and the Sub-charterer as time charterer
|
Charterer:
|
Central Tankers Chartering Inc.
|
Sub-charterer:
|
Shell Tankers Singapore Private Limited
|
Classification:
|
+100A1, Double Hull Oil and Chemical Tanker, Ship Type 2 and Ship Type 3, ESP, CSR, +LMC,
UMS, *IWS, LI, SRM4, ECO (IHM, P), NAV1, IGS, ShipRight (CM, ACS(B)) with descriptive notes COW(LR), ETA, ShipRight (BWMP(S)), SERS, SCM, VECS)
|
Classification Society:
|
Lloyds Register of Shipping
|
Major Casualty Amount:
|
$500,000
|
1 |
Original Obligors’ corporate documents
|
|
(a) |
A copy of the Constitutional Documents of each Original Obligor (other than any Charterer, the Sub-charterer and CSM).
|
|
(b) |
A copy of a resolution of the board of directors of each Original Obligor other than any Charterer, the Sub-charterer and CSM (or, if applicable, any
committee of such board empowered to approve and authorise the following matters):
|
|
(i) |
approving the terms of, and the transactions contemplated by, the Transaction Documents to which it is a party (its
Relevant Documents
)
and resolving that it execute, deliver
and perform the Relevant Documents to which it is a party;
|
|
(ii) |
authorising a specified person or persons to execute its Relevant Documents on its behalf; and
|
|
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request)
to be signed and/or despatched by it under or in connection with its Relevant Documents.
|
|
(c) |
If applicable, a copy of a resolution of the board of directors of the relevant company, establishing any committee referred to in paragraph (b) above and
conferring authority on that committee.
|
|
(d) |
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above in relation to its Relevant Documents and related
documents.
|
|
(e) |
A copy of a resolution signed by all the holders of the issued shares in each Original Obligor (other than any Charterer, the Sub-charterer and CSM),
approving the terms of, and the transactions contemplated by, its Relevant Documents.
|
|
(f) |
A copy of a resolution of the board of directors of each corporate shareholder of each Original Obligor (other than any Charterer, the Sub-charterer and CSM)
approving the terms of the resolution referred to in paragraph (e) above.
|
|
(g) |
A certificate of each Guarantor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not
cause any borrowing, guarantee, security or similar limit binding on any Original Obligor (other than any Charterer and the Sub-charterer) to be exceeded.
|
|
(h) |
A copy of any power of attorney under which any person is appointed by any Original Obligor (other than any Charterer, the Sub-charterer and CSM) to execute
any of its Relevant Documents on its behalf.
|
|
(i) |
A certificate of an authorised signatory of each relevant Original Obligor (other than any Charterer, the Sub-charterer and CSM) certifying that each copy
document relating to it specified in this Part of this Schedule is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement and that any such
resolutions or power of attorney have not been revoked.
|
|
(j) |
A goodstanding certificate from the Marshall Islands competent authority in respect of the Borrower and each Guarantor (not more than 14 days before the
proposed first Utilisation Date).
|
2 |
Legal opinions
|
|
(a) |
A legal opinion of Norton Rose Fulbright Greece addressed to the Arranger, the Security Agent and the Agent on matters of English law, substantially in the
form approved by the Agent prior to signing this Agreement.
|
|
(b) |
A legal opinion of the legal advisers to the Arranger, the Security Agent and the Agent in England and also each jurisdiction in which an Obligor is
incorporated and/or which is or is to be the Flag State of the Borrower’s Ship, or in which an Account opened at the relevant time is established substantially in the form approved by the Agent prior to signing this Agreement.
|
3 |
Other documents and evidence
|
|
(a) |
Evidence that any process agent referred to in clause 51.2 (
Service
of process
)
or any equivalent provision of any other Finance Document entered into on or before the first Utilisation Date,
if not an Original Obligor, has accepted its appointment.
|
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary (if it has notified the Borrower
accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
|
(c) |
The Fee Letters duly executed and evidence that the fees, commissions, costs and expenses then due from the Borrower pursuant to clause 12 (
Fees
) and clause 17 (
Costs and expenses
)
have been paid or will be paid by the first Utilisation Date.
|
4 |
Bank Account
|
5 |
Construction matters
|
|
(a) |
The
original and a copy, certified by an approved
person to be a true and complete copy, of the Building Contract and the Refund Guarantee.
|
|
(b) |
A Pre-Delivery Security Assignment duly executed by the Borrower.
|
|
(c) |
Duly executed notices of assignment and acknowledgement of those notices as required by the Pre-Delivery Security Assignment.
|
|
(d) |
A legal opinion addressed to the Agent, the Security Agent and the Original Lenders (and capable of being relied upon by any persons who become Lenders
pursuant to the primary syndication of the Facility) of legal advisers to the Arranger, the Security Agent
|
6 |
Charter
|
|
(a) |
The Charter in respect of the Borrower’s Ship, duly executed, on such terms (including as to the identity of the relevant Charterer, the charter rates and
their tenors) and otherwise approved by the Majority Lenders.
|
|
(b) |
Such evidence as the Agent may require as to the due incorporation of the Charterer in respect of the Borrower’s Ship and any other party to the Charter
Documents in respect of the Borrower’s Ship (other than an Obligor), their power and authority to enter into and perform those documents and the authorisation of their entry into them.
|
7 |
Share Security
|
8 |
“Know your customer” information
|
9 |
Disclosed Persons
|
10 |
Provisional Schedule
|
1 |
Confirmation
|
|
(a) |
neither the Builder nor any other party who may have a claim pursuant to the Building Contract Documents has any claims against the Borrower’s Ship or the
Borrower and that there have been no breaches of the terms of such Building Contract Documents or any default thereunder;
|
|
(b) |
there have been no:
|
|
(i) |
amendments or variations to the Building Contract Documents;
|
|
(ii) |
release of the Builder or the Refund Guarantor from any of its obligations under the Building Contract or the Refund Guarantee;
|
|
(iii) |
waiver of any breach of such obligations; or
|
|
(iv) |
any consent to anything which would otherwise be such a breach,
|
|
(c) |
no action has been taken by the Builder or the Refund Guarantor which might in any way render any of the Building Contract Documents wholly or partly
inoperative or unenforceable.
|
2 |
Construction matters
|
|
(a) |
An invoice or notification from the Builder demanding the payment of the Pre-Delivery Instalment which is to be financed by the Relevant Advance or, in the
event that the Borrower has already paid such Pre-Delivery Instalment, evidence from the Builder of receipt of such payment.
|
|
(b) |
In the event that, under the terms of the Building Contract, such Pre-Delivery Instalment is payable upon completion of a stage of construction of the
Borrower’s Ship relating to the Relevant Advance, such evidence in all respects satisfactory to the Agent that such stage of construction has been completed as is required by the Builder under the Building Contract and the provisional
schedule provided to the Agent under paragraph 10 of Part 1 of this Schedule 3 (including as to the time of the relevant stage construction completion) (including, if required thereunder, stage certificate from the relevant
classification society).
|
|
(c) |
Evidence from the Builder that any Pre-Delivery Instalments which had been due and payable prior to the Pre-Delivery Instalment which is to be financed by the
Relevant Advance, have been paid in full.
|
|
(d) |
Evidence that any part of such Pre-Delivery Instalment which is not to be financed by the Relevant Advance has been paid or will be paid simultaneously with
the Relevant Advance, to the Builder.
|
3 |
Corporate documents
|
|
(a) |
A certificate of an authorised signatory of the Borrower certifying that each copy document relating to it specified in Part 1 of this Schedule remains
correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose and that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or
amended.
|
|
(b) |
A certificate of an authorised signatory of each other Obligor which is party to any of the Original Security Documents required to be executed at or before
Delivery of the Borrower’s Ship certifying that each copy document relating to it specified in Part 1 of this Schedule remains correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose
and that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or amended.
|
|
(c) |
A goodstanding certificate from the Marshall Islands competent authority in respect of the Borrower and each Guarantor (not more than 14 days before the
proposed Utilisation Date relating to the Relevant Advance).
|
4 |
Fees and expenses
|
5
|
Survey report |
From:
|
PCH77 Shipping Company Limited
|
To:
|
Amsterdam Trade Bank N.V.
|
Date:
|
[●]
|
1 |
We refer to the Facility Agreement. This is a Utilisation Request. Terms defined in the Facility Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.
|
2 |
We wish to borrow an Advance on the following terms:
|
Proposed Utilisation Date:
|
[
●
] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
$[
●
]
|
3 |
We confirm that each condition specified in clause 4.4 (
Further
conditions precedent
)
is satisfied on the date of this Utilisation Request.
|
4 |
The purpose of this Advance is
[specify purpose complying with clause 3 of the Facility Agreement]
and its proceeds should be
credited to [
●
]
[specify account]].
|
5 |
This Utilisation Request is irrevocable.
|
Yours faithfully
|
authorised signatory for
|
||
PCH77 SHIPPING COMPANY LIMITED
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
[The Existing Lender]
(the
Existing Lender)
and
[The New Lender]
(the
New Lender
)
|
Dated:
|
1 |
We refer to the Facility Agreement. This agreement (the
Agreement
)
shall take effect as a Transfer Certificate for the purposes of the Facility Agreement. Terms defined in the Facility Agreement have
the same meaning in this Agreement unless given a different meaning in this Agreement.
|
2 |
We refer to clause 31.6 (
Procedure for assignment
)
of the Facility Agreement:
|
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Facility Agreement and the other Finance Documents
which correspond to that portion of the Existing Lender’s Commitment and participation in the Loan under the Facility Agreement as specified in the Schedule.
|
|
(b) |
The Existing Lender is released from the obligations owed by it which correspond to that portion of the Existing Lender’s Commitment and participation in the
Loan under the Facility Agreement specified in the Schedule (but the obligations owed by the Obligors under the Finance Documents shall not be released).
|
|
(c) |
On the Transfer Date 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) |
The proposed Transfer Date is [
●
].
|
|
(e) |
The Facility Office and address and attention details for notices of the New Lender for the purposes of clause 41.2 (
Addresses
) of the Facility Agreement are set out in the Schedule.
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in clause 31.5 (
Limitation of responsibility of Existing Lenders
)
of the Facility
Agreement.
|
4 |
The New Lender confirms that it [is] / [is not] a Borrower Affiliate.
|
5 |
This Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with clause 31.7 (
Copy of Transfer Certificate to Borrower
)
,
to the
Borrower (on behalf of each Obligor) of the assignment referred to in this Agreement.
|
6 |
This 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 Agreement.
|
7 |
This Agreement and any non-contractual obligations connected with it are governed by English law.
|
8 |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
By:
|
By:
|
[Agent]
|
By:
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
[The Lender]
|
Dated:
|
1 |
We refer to clause 45.9 (
Disenfranchisement of Borrower
Affiliates
)
of the Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this notice unless
given a different meaning in this notice.
|
2 |
We have entered into a Notifiable Debt Purchase Transaction.
|
3 |
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to the amount of our Commitment as set out below.
|
[Lender]
|
By:
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
[The Lender]
|
Dated:
|
1 |
We refer to clause 45.9 (
Disenfranchisement of Borrower
Affiliates
) of the
Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this notice unless
given a different meaning in this notice.
|
2 |
A Notifiable Debt Purchase Transaction which we entered into and which we
notified you of in a notice dated [
●
] has [terminated] / [ceased to be with a Borrower Affiliate].
*
|
3 |
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to the amount of our Commitment as set out below.
|
[Lender]
|
By:
|
* |
Delete as applicable
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
PCH77 Shipping Company Limited as Borrower
|
Dated:
|
[
●
]
|
1 |
We refer to the Facility Agreement. This is a Compliance Certificate. Terms defined in the Facility Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2 |
We confirm that:
|
|
(a) |
Leverage
: the ratio of Total Net Debt to Fleet Market Value in respect of the Group was [
●
]:1.00, calculated as shown in
[Appendix A] versus a maximum required ratio of 0.75:1.00
[attach relevant evidence]
; and
|
|
(b) |
Minimum liquidity
: the Group’s Cash and Cash Equivalents were [
●
] calculated as shown in [Appendix B] versus a minimum
required aggregate amount of (i) $750,000 per Fleet Vessel and (ii) $500,000 per Chartered Vessel
[attach relevant evidence]
.
|
3 |
[We confirm that no Default is continuing.] [If this statement cannot be made, the certificate should identify any Default that is continuing and the steps,
if any, being taken to remedy it.]
|
Signed by:
|
PCH77 SHIPPING COMPANY LIMITED
|
[
|
||
Auditors of
PCH77 SHIPPING COMPANY
LIMITED
]
|
THE BORROWER
|
|
PCH77 SHIPPING COMPANY LIMITED
|
By:
|
/s/ Papastratis Nikos
|
||
Nikos Papastratis
|
THE GUARANTORS
|
|
TOP SHIPS INC.
|
By:
|
/s/
Papastratis Nikos
|
||
Nikos Papastratis
|
ASTARTE INTERNATIONAL INC.
|
By:
|
/s/
Papastratis Nikos
|
||
Nikos Papastratis
|
THE ARRANGER
|
|
AMSTERDAM TRADE BANK N.V.
|
By:
|
/s/ A. Skindilias | ||
Angeliki Skindilias |
THE AGENT
|
|
AMSTERDAM TRADE BANK N.V.
|
By:
|
/s/ A. Skindilias | ||
Angeliki Skindilias |
THE SECURITY AGENT
|
|
AMSTERDAM TRADE BANK N.V.
|
By:
|
/s/ A. Skindilias | ||
Angeliki Skindilias |
THE LENDERS
|
|
AMSTERDAM TRADE BANK N.V.
|
By:
|
/s/ A. Skindilias | ||
Angeliki Skindilias |
GUARANTEE
|
Clause
|
Page
|
1
|
DEFINITIONS AND CONSTRUCTION
|
1
|
2
|
GUARANTEE AND INDEMNITY
|
3
|
3
|
GUARANTEE PERIOD
|
7
|
4
|
PAYMENTS AND TAXES
|
7
|
5
|
REPRESENTATIONS AND WARRANTIES
|
8
|
6
|
UNDERTAKINGS
|
11
|
7
|
SET-OFF
|
13
|
8
|
BENEFIT OF THIS GUARANTEE
|
13
|
9
|
NOTICES AND OTHER MATTERS
|
13
|
10
|
GOVERNING LAW AND JURISDICTION
|
15
|
EXECUTION PAGE
|
17
|
1. |
TOP SHIPS INC.
, a company incorporated under the laws
of the Republic of Marshall Islands with its registered address at Trust Company Complex, Ajeltake Road, Majuro, Marshall Islands NH96960 (the “
Guarantor
”); and
|
2. |
XIANG T88 HK INTERNATIONAL SHIP LEASE CO., LIMITED
, a
company incorporated under the laws of Hong Kong with its registered address at 1/F., Far East Consortium Building, 121 Des Voeux Road Central, Hong Kong (the “
Owner
”) which expression includes its successors in title, permitted assigns and permitted transferees.
|
(A) |
By a bareboat charterparty dated 21 December 2018 (the “
Bareboat
Charterparty
”) and made between the Owner and PCH77 SHIPPING COMPANY LIMITED (the “
Charterer
”), the Owner has agreed to let
and the Charterer has agreed to take one Class Product/Chemical Tanker currently under construction at the shipyard of Hyundai Mipo Dockyard Co., Ltd. with Hull No. 8218 to be named m.t. “ECO CALIFORNIA” on demise charter upon the terms
and conditions therein mentioned.
|
(B) |
As a condition precedent to the Bareboat Charterparty, the Guarantor has granted this Guarantee in favour of the Owner.
|
1 |
DEFINITIONS AND CONSTRUCTION
|
1.1 |
Defined expressions
|
1.2 |
Definitions
|
1.3 |
Construction
|
1.3.1 |
clause headings and the index are inserted for convenience of reference only and shall be ignored in the construction of this Guarantee;
|
1.3.2 |
the rules of interpretation contained in the Bareboat Charterparty shall apply
mutatis mutandis
to the construction of this Guarantee;
|
1.3.3 |
references to a “
regulation
” include
any present or future regulation, rule, directive, requirement, request or guideline (whether or not having the force of law) of any government entity, central bank or any self-regulatory or other supra-national authority;
|
1.3.4 |
references to any person in or party to this Guarantee shall include reference to such person’s lawful successors and assigns and references
to the Owner shall also include a transferee;
|
1.3.5 |
references to a “
guarantee
” include
references to an indemnity or any other kind of assurance whatsoever (including, without limitation, any kind of negotiable instrument, bill or note) against financial loss or other liability including, without limitation, an obligation
to purchase assets or services as a consequence of a default by any other person to pay any Indebtedness and “
guaranteed
” shall be
construed accordingly;
|
1.3.6 |
a certificate by the Owner as to any amount due or calculation made or any matter whatsoever determined in connection with this Guarantee
shall be conclusive and binding on the Guarantor except for manifest error;
|
1.3.7 |
if any document, term or other matter or thing is required to be approved, agreed or consented to by the Owner such approval, agreement or
consent must be obtained in writing unless the contrary is stated; and
|
1.3.8 |
time shall be of the essence in respect of all obligations whatsoever of the Guarantor under this Guarantee, howsoever and whensoever arising.
|
1.4 |
Third party rights
|
2 |
GUARANTEE AND INDEMNITY
|
2.1 |
Guarantor as principal debtor; indemnity
|
2.1.1 |
The Guarantor irrevocably and unconditionally:
|
|
(a) |
guarantees to the Owner the due and punctual observance and performance of all the obligations of the Security Parties under the Transaction
Documents and the due and punctual payment of all the Guaranteed Liabilities; and
|
|
(b) |
undertakes with the Owner that whenever any Security Party does not pay any amount of the Guaranteed Obligations when due, the Guarantor shall
immediately on demand pay that amount as if it were the principal obligor; and
|
|
(c) |
indemnifies the Owner immediately on demand against any cost, loss or liability suffered by the Owner if any obligation guaranteed by it (or
anything which would have been an obligation if not unenforceable, invalid or illegal) is or becomes unenforceable, invalid or illegal. The
|
2.2 |
No security taken by Guarantor
|
2.3 |
Interest
|
2.4 |
Continuing security and other matters
|
2.4.1 |
secure the ultimate balance of the Guaranteed Liabilities from time to time owing to the Owner by any Security Party notwithstanding any
settlement of account or other matter whatsoever;
|
2.4.2 |
be in addition to and shall not merge with or otherwise prejudice or affect any present or future Collateral Instrument, right or remedy now
or hereafter held by or available to the Owner; and
|
2.4.3 |
not be in any way prejudiced or affected by the existence of any such Collateral Instrument, rights or remedies or by the same becoming wholly
or in part void, voidable or unenforceable on any ground whatsoever or by the Owner dealing with, exchanging, varying or failing to perfect or enforce any of the same or giving time for payment or indulgence or compounding with any
other person liable.
|
2.5 |
Waiver of Defences
|
2.5.1 |
The Guarantor acknowledges and agrees that none of the Guaranteed Liabilities shall be reduced, released or otherwise howsoever adversely
affected by any circumstances, event, action, matter or thing whatsoever, howsoever arising, including, without limitation:
|
|
(a) |
any renewal, variation, determination or increase in any accommodation or credit given by the Owner to any Security Party;
|
|
(b) |
any time or waiver granted to or composition with any Security Party or any other person;
|
|
(c) |
any variation, extension, release, discharge, compromise, dealing with, exchange or renewal of any right or remedy which the Owner may now or
hereafter have from or against any Security Party and any other person in respect of any of the obligations and liabilities of any Security Party and any other person;
|
|
(d) |
any act or omission by the Owner or any other person in taking up, perfecting or enforcing any security or guarantee from or against any
Security Party and any other person;
|
|
(e) |
the administration, insolvency, bankruptcy, liquidation, winding-up, incapacity, limitation, disability or the discharge by operation of law
of any Security Party or any change in the constitution, name and style of any Security Party or any other person; or
|
|
(f) |
any invalidity, irregularity, unenforceability, act or omission which might have discharged or affected the liability of the Guarantor had it
been a mere surety in respect of the Guaranteed Liabilities or by anything done or omitted by any person which but for this provision might operate to exonerate or discharge the Guarantor or otherwise reduce or extinguish its liability
under this Guarantee.
|
2.5.2 |
Without prejudice to the generality of Clause 2.5.1, the Guarantor expressly confirms that it intends that its obligations under this
Guarantee and the guarantee and indemnity contained in it shall extend from time to time any variation, increase, extension or addition (in each case, however fundamentally) of or to any Transaction Document.
|
2.6 |
Additional Security
|
2.7 |
Collateral Instruments
|
2.8 |
Non-Competition
|
2.8.1 |
be subrogated to any rights, security or monies held, received or receivable by the Owner or be entitled to any right of contribution;
|
2.8.2 |
be entitled and shall not claim to rank as creditor against the assets or in the bankruptcy or liquidation of any Security Party in
competition with the Owner or from any other person liable or demand or accept any Collateral Instrument in respect of the same or dispose of the same;
|
2.8.3 |
take any step to enforce any right against any Security Party or any other person liable in respect of any Guaranteed Liabilities; or
|
2.8.4 |
claim any set off or counterclaim against any Security Party or any other person liable or claim or prove in competition with the Owner in the
liquidation of any Security Parties or any other person liable or have the benefit of, or share in, any payment from or composition with, any Security Party or any other person liable or any other Collateral Instrument now or hereafter
held by the Owner for any Guaranteed Liabilities or for the obligations or liabilities of any other person liable but so that, if so directed by the Owner, it will prove for the whole or any part of its claim in the liquidation of any
Security Party or any other person liable on terms that the benefit of such proof and of all money received by it in respect thereof shall be held on trust for the Owner and applied in or towards discharge of the Guaranteed Liabilities
in such manner as the Owner shall deem appropriate.
|
2.9 |
Suspense accounts
|
2.10 |
New accounts
|
2.11 |
Settlements conditional
|
2.12 |
Guarantor to pay and deliver up certain
property
|
2.13 |
Retention of this Guarantee
|
3 |
PAYMENTS AND TAXES
|
3.1 |
Time for payment
|
3.2 |
No set-off or counter claim
|
3.3 |
Grossing up for Taxes
|
3.4 |
Currency Indemnity
|
4 |
REPRESENTATIONS AND WARRANTIES
|
4.1 |
Continuing Representations and Warranties
|
4.1.1 |
Due incorporation
|
4.1.2 |
Insolvency
|
4.1.3 |
Power to guarantee
|
4.1.4 |
Binding obligations
|
4.1.5 |
No conflict with other obligations
|
|
(a) |
contravene any existing applicable law, statute, rule or regulation or any judgment, decree or permit to which the Guarantor is subject; or
|
|
(b) |
conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which the
Guarantor is a party or is subject or by which it or any of its assets is bound; or
|
|
(c) |
contravene or conflict with any provision of any articles of association, articles of incorporation, by-laws, statutes or other constitutional
documents of the Guarantor; or
|
|
(d) |
result in the creation or imposition of or oblige the Guarantor to create any Security Interest, other than as permitted by the Owner on any
of the undertakings, assets, rights or revenues of the Guarantor;
|
4.1.6 |
Validity and admissibility in evidence
|
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations under this Guarantee;
|
|
(b) |
to ensure that the obligations expressed to be assumed by it in this Guarantee are valid, legally binding and enforceable; and
|
|
(c) |
to make this Guarantee admissible in evidence in the jurisdiction of its incorporation,
|
4.1.7 |
No litigation
|
4.1.8 |
Financial statements correct and complete
|
4.1.9 |
Sanctions
|
4.1.10 |
Registration Requirements
|
4.1.11 |
Choice of law
|
4.1.12 |
No immunity
|
4.1.13 |
Consents obtained
|
4.1.14 |
Pari passu
|
4.1.15 |
Default lists
|
4.2 |
Initial Representations and Warranties
|
4.2.1 |
No default under other Indebtedness
|
4.2.2 |
Information
|
4.2.3 |
No withholding Taxes
|
4.2.4 |
No Default
|
4.3 |
Repetition of Representations and Warranties
|
5 |
UNDERTAKINGS
|
5.1 |
General
|
5.1.1 |
Compliance with laws
|
5.1.2 |
Sanctions
|
5.1.3 |
Notice of Termination Event
|
5.1.4 |
Consents and licences
|
5.1.5 |
Perfection and protection of Guarantee
|
5.1.6 |
Other information
|
|
(a) |
all documents dispatched by it to its shareholders generally at the same time as they are dispatched;
|
|
(b) |
as soon as reasonably practicable upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which
are current, threatened or pending against it; and
|
|
(c) |
as soon as reasonably practicable, such further information including the financial condition, business and operations of the Guarantor or the
Charterer,
|
5.1.7 |
Financial Statements
|
|
(a) |
the unaudited semi annual financial statements of the Charterer and the Guarantor (each prepared in accordance with GAAP and, in the case of
the Guarantor, on a consolidated basis) as soon as available and in no event later than 90 days after each such date;
|
|
(b) |
the annual financial statement of the Charterer, as referred to in the Guarantor’s audited consolidated annual financial statements, and the
audited financial statements of the Guarantor (each prepared in accordance with GAAP and, in the case of the Guarantor, on a consolidated basis) as soon as available and in no event later than one hundred and twenty (120) days after the
end of their respective financial year;
|
5.1.8 |
Requirements as to Financial Statements
|
|
(a) |
ensure that each set of financial statements delivered pursuant to Clause 5.1.7 shall fairly represent the financial condition of the
Charterer and the Guarantor (as the case may be) as at the date as at which those financial statements were drawn up; and
|
|
(b) |
ensure that its financial statements delivered pursuant to Clause 5.1.7 is prepared using GAAP; and
|
5.1.9 |
Notification of Default shall, and shall procure that the Charterer shall, notify the Owner of any default (and the steps, if any, being taken
to remedy it) promptly upon becoming aware of its occurrence; and promptly upon a request by the Owner, the Guarantor shall and shall procure that the Charterer shall, supply to the Owner a certificate signed by the relevant sole
director or 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).
|
5.2 |
Negative undertakings
|
5.2.1 |
No merger
|
6 |
SET-OFF
|
6.1 |
Set-off
|
7 |
BENEFIT OF THIS GUARANTEE
|
7.1 |
Benefit and burden
|
7.2 |
Changes in constitution of the Owner
|
7.3 |
Disclosure of information
|
8 |
NOTICES AND OTHER MATTERS
|
8.1 |
Notices
|
8.1.1 |
Unless otherwise specifically provided herein, every Notice under or in connection with this Guarantee shall be given in English by letter
delivered personally and/or sent by post and/or transmitted by fax.
|
8.1.2 |
In this Clause 8, “
Notice
” and or “
Notices
” includes any demand, consent, authorisation, approval, instruction, request, waiver or other communication.
|
8.2 |
Address for Notices, effective date of Notices
|
8.2.1 |
Subject to Clause 8.2.4, notices to the Guarantor shall be deemed to have been given and shall take effect when received in full legible form
by the Guarantor at the address and/or the fax number and/or email address appearing below (or at such other address, fax number or email address as the Guarantor may hereafter specify for such purpose to the Owner by notice in
writing):
|
|
Address: |
1, Vass Sofias 151 24 Marousi c/o Top Ships
|
|
Fax: |
0030 210 6141272
|
|
Email: |
atsirikos@topships.org
|
|
Attention: |
Alexandros Tsirikos
|
8.2.2 |
Notwithstanding the provisions of Clause 8.2.1 or 8.2.4, a Notice given pursuant to this Guarantee shall be deemed to have been given and
shall take effect when delivered, sent or transmitted by the Owner to a Guarantor to the address or fax number referred to in clause 8.2.1.
|
8.2.3 |
Subject to clause 8.2.4, Notices to the Owner shall be deemed to be given, and shall take effect, when received in full legible form by the
Owner at the address and/or the fax number appearing below (or at such other address or fax number as the Owner may hereafter specify for such purpose to the Guarantor by notice in writing):
|
|
Address: |
c/o Bank of Communications Financial Leasing Co., Ltd
28/F., 333 Lujiazui Ring Road, Shanghai, China
|
|
Fax: |
+86 -21-6278 8317
|
|
Email: |
fang xz@bankcomm.com
/
xux_31@bankcomm.com
|
|
Attention: |
Mr. Fang Xiuzhi / Mr. Xu Xin
|
8.2.4 |
If under clause 8.2.1 or 8.2.3 any Notice would be deemed to have been given and effective on a day which is not a Banking Day in the place of
receipt or is outside normal business hours in the place of receipt, the Notice shall be deemed to have been given and to have taken effect at the opening of business on the next Banking Day.
|
8.3 |
No implied waivers, remedies cumulative
|
8.4 |
Acknowledgment
|
8.5 |
Language
|
8.6 |
Expenses
|
8.7 |
Partial Invalidity
|
8.8 |
Counterparts
|
9 |
GOVERNING LAW AND ARBITRATION
|
9.1 |
Governing Law
|
9.1.1 |
This Guarantee and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance
with English law in accordance with the Arbitration Act in accordance with English law 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.
|
9.2 |
Arbitration
|
EXECUTED as a DEED
For and on behalf of
TOP SHIPS INC.
by Alexandros Tsirikos
Witnessed / Verified by
|
)
)
)
)
)
)
|
/s/
Alexandros Tsirikos
|
/s/ Andreas Louka
|
|
Name: Andreas Louka
|
|
Title: Advocate
|
SIGNED by Lu Zhendong
for and on behalf of
XIANG T88 HK INTERNATIONAL SHIP LEASE CO., LIMITED
Witnessed / Verified by
|
)
)
)
)
)
)
|
/s/
Lu Zhendong
|
/s/ Wang Ying
|
|
Name: Wang Ying
|
|
Title:
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
M/T STENAWECO ENERGY
|
Particulars of Vessel:
|
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 50,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
9,86
|
$3.600
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
41,10
|
$15.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
23,29
|
$8.500
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.608,22
|
$952.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
8,22
|
$3.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
296,58
|
$90.000
|
$1.271.600
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
221,92
|
$81.000
|
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.483,84
|
$1.271.600
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
164,38
|
$60.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
15,75
|
$5.750
|
|
64004
|
P&I
|
136,99
|
$50.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$125.750
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
344,52
|
$125.750
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER,ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
27,40
|
$10.000
|
|
68001
|
CABIN STORES - ACCOMODATION
|
27,40
|
$10.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
13,70
|
$5.000
|
|
68013
|
WATER SUPPLY
|
13,70
|
$5.000
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVAL-SUITABILITY INSPECTIONS
|
54,79
|
$20.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66005
|
CLEARING/FORWARDING EXPS
|
109,59
|
$40.000
|
|
66006
|
DECK STORES
|
95,89
|
$35.000
|
|
66007
|
ELECTR. DEPT-STORES
|
27,40
|
$10.000
|
$348.000
|
66008
|
ENGINE STORES
|
68,49
|
$25.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
10,96
|
$4.000
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
13,70
|
$5.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
13,70
|
$5.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
13,70
|
$5.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
68,49
|
$25.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66011
|
STATIONERY EXPS
|
27,40
|
$10.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
13,70
|
$5.000
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
13,70
|
$5.000
|
|
66012
|
TELECOMMUNICATIONS
|
134,25
|
$49.000
|
|
66013
|
TONNAGE TAX
|
54,79
|
$20.000
|
|
66014
|
VARIOUS EXPS
|
27,40
|
$10.000
|
|
Other Vessel Operating Expenses Subtotal
|
953,42
|
$348.000
|
||
66009
|
Lubricants
|
438,36
|
$160.000
|
$160.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
41,10
|
$15.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
41,10
|
$15.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
$70.000
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
|
Spares Subtotal
|
191,78
|
$70.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.135.350
|
DAILY OPEX WITHOUT DD EXPENSES
|
$5.850
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
850
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.850,27
|
$2.135,350
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.850
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
M/T STENAWECO ENERGY
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the
operation of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
M/T STENAWECO ELEGANCE
|
Particulars of Vessel:
|
|
TYPE OF VESSEL
|
Oil and Chemical Carrier
Ship Type IMO 3 |
HULL TYPE
|
Double Hull
|
IMO NUMBER
|
9776470
|
FLAG
|
Marshall Islands
|
YEAR & PLACE BUILT
|
2017 at Hyundai Vinashin Shipyard, Vietnam
|
CLASS SOCIETY
|
ABS
|
CALL SIGN
|
V7UP6
|
LOA, BREADTH, DEPTH
|
183.00 M / 32.20 M / 19.1 M
|
SDWT - DRAFT
|
50,118 MT @ 13.315 M
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 50,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
9,86
|
$3.600
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
41,10
|
$15.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
23,29
|
$8.500
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.608,22
|
$952.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
8,22
|
$3.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
296,58
|
$90.000
|
$1.271.600
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
221,92
|
$81.000
|
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.483,84
|
$1.271.600
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
164,38
|
$60.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
15,75
|
$5.750
|
|
64004
|
P&I
|
136,99
|
$50.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$125.750
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
344,52
|
$125.750
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER,ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
27,40
|
$10.000
|
|
68001
|
CABIN STORES - ACCOMODATION
|
27,40
|
$10.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
13,70
|
$5.000
|
|
68013
|
WATER SUPPLY
|
13,70
|
$5.000
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVAL-SUITABILITY INSPECTIONS
|
54,79
|
$20.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66005
|
CLEARING/FORWARDING EXPS
|
109,59
|
$40.000
|
|
66006
|
DECK STORES
|
95,89
|
$35.000
|
|
66007
|
ELECTR. DEPT-STORES
|
27,40
|
$10.000
|
$348.000
|
66008
|
ENGINE STORES
|
68,49
|
$25.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
10,96
|
$4.000
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
13,70
|
$5.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
13,70
|
$5.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
13,70
|
$5.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
68,49
|
$25.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66011
|
STATIONERY EXPS
|
27,40
|
$10.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
13,70
|
$5.000
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
13,70
|
$5.000
|
|
66012
|
TELECOMMUNICATIONS
|
134,25
|
$49.000
|
|
66013
|
TONNAGE TAX
|
54,79
|
$20.000
|
|
66014
|
VARIOUS EXPS
|
27,40
|
$10.000
|
|
Other Vessel Operating Expenses Subtotal
|
953,42
|
$348.000
|
||
66009
|
Lubricants
|
438,36
|
$160.000
|
$160.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
41,10
|
$15.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
41,10
|
$15.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
$70.000
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
|
Spares Subtotal
|
191,78
|
$70.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.135.350
|
DAILY OPEX WITHOUT DD EXPENSES
|
$5.850
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
850
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.850,27
|
$2.135,350
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.850
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
M/T STENAWECO ELEGANCE
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the operation
of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
HULL 8242 (tbn ECO MARINA DEL RAY)
|
Particulars of Vessel:
|
|
TYPE OF VESSEL
|
Oil and Chemical Tanker
Ship Type IMO 2 & 3 |
HULL TYPE
|
Double Hull
|
IMO NUMBER
|
9798349
|
FLAG
|
Marshall Islands
|
YEAR & PLACE BUILT
|
2019 at Hyundai Mipo Dockyard, South Korea
|
CLASS SOCIETY
|
DNV - GL
|
CALL SIGN
|
V7A2018
|
LOA, BREADTH, DEPTH
|
183.00 M / 32.20 M / 19.1 M
|
SDWT - DRAFT
|
49,967 MT @ 13.3 m
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 50,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
9,86
|
$3.600
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
41,10
|
$15.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
23,29
|
$8.500
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.608,22
|
$952.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
8,22
|
$3.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
296,58
|
$90.000
|
$1.271.600
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
221,92
|
$81.000
|
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.483,84
|
$1.271.600
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
164,38
|
$60.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
15,75
|
$5.750
|
|
64004
|
P&I
|
136,99
|
$50.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$125.750
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
344,52
|
$125.750
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER,ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
27,40
|
$10.000
|
|
68001
|
CABIN STORES - ACCOMODATION
|
27,40
|
$10.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
13,70
|
$5.000
|
|
68013
|
WATER SUPPLY
|
13,70
|
$5.000
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVAL-SUITABILITY INSPECTIONS
|
54,79
|
$20.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66005
|
CLEARING/FORWARDING EXPS
|
109,59
|
$40.000
|
|
66006
|
DECK STORES
|
95,89
|
$35.000
|
|
66007
|
ELECTR. DEPT-STORES
|
27,40
|
$10.000
|
$348.000
|
66008
|
ENGINE STORES
|
68,49
|
$25.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
10,96
|
$4.000
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
13,70
|
$5.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
13,70
|
$5.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
13,70
|
$5.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
68,49
|
$25.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66011
|
STATIONERY EXPS
|
27,40
|
$10.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
13,70
|
$5.000
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
13,70
|
$5.000
|
|
66012
|
TELECOMMUNICATIONS
|
134,25
|
$49.000
|
|
66013
|
TONNAGE TAX
|
54,79
|
$20.000
|
|
66014
|
VARIOUS EXPS
|
27,40
|
$10.000
|
|
Other Vessel Operating Expenses Subtotal
|
953,42
|
$348.000
|
||
66009
|
Lubricants
|
438,36
|
$160.000
|
$160.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
41,10
|
$15.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
41,10
|
$15.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
$70.000
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
|
Spares Subtotal
|
191,78
|
$70.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.135.350
|
DAILY OPEX WITHOUT DD EXPENSES
|
$5.850
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
850
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.850,27
|
$2.135,350
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.850
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
HULL 8242 (tbn ECO MARINA DEL RAY)
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the operation
of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
M/T ECO FLEET
|
Particulars of Vessel:
|
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 39,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
CREW SALARIES & FIXED OVERTIME
|
2.516,44
|
$918.500
|
||
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
||
OWNERS CREW BONUS
|
41,10
|
$15.000
|
||
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
||
CREW COMPULSORY INSURANCE
|
6,85
|
$2.500
|
||
CREW INSURANCE FOR P&I DEDUCTIBLE
|
16,44
|
$6.000
|
||
CREW PRE-JOINING TRAININGS
|
27,40
|
$10.000
|
||
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
||
CREW VARIOUS EXPENSES
|
219,18
|
$80.000
|
||
MANNING AGENT MANAGEMENT FEE
|
82,19
|
$30.000
|
||
MANNING AGENT EXPENSES
|
9,86
|
$3.600
|
||
VICTUALING - PROVISIONS
|
221,92
|
$81.000
|
$1.239.100
|
|
WATER
|
10,96
|
$4.000
|
||
Crew Subtotal
|
3.394,79
|
$1.239.100
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
273,97
|
$100.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
||
64003
|
WAR RISKS ANNUAL PREMIUM
|
8,22
|
$3.000
|
|
64004
|
P&I
|
135,62
|
$49.500
|
|
64005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
||
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$162.500
|
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
||
Insurance Subtotal
|
445,21
|
$162.500
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER.ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
41,10
|
$15.000
|
|
68001
|
CABIN STORES – ACCOMODATION
|
13,70
|
$5.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
6,85
|
$2.500
|
|
68013
|
WATER SUPPLY
|
0,00
|
$0
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVALS-SUITABILITY INSPECTIONS
|
82,19
|
$30.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66005
|
CLEANING/FORWARDING EXPS
|
68,49
|
$25.000
|
|
66006
|
DECK STORES
|
41,10
|
$15.000
|
|
66007
|
ELCTR.DEPT-STORES
|
13,70
|
$5.000
|
|
66008
|
ENGINE STORES
|
27,40
|
$10.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
4,11
|
$1.500
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
41,10
|
$15.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
27,40
|
$10.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
27,40
|
$10.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66011
|
STATIONERY EXPS
|
13,70
|
$5.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
6,85
|
$2.500
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
27,40
|
$10.000
|
|
66012
|
TELECOMMUNICATIONS
|
41,10
|
$15.000
|
|
66013
|
TONNAGE TAX
|
20,55
|
$7.500
|
$241.50
|
66014
|
VARIOUS EXPS
|
6,85
|
$2.500
|
|
Other Vessel Operating Expenses Subtotal
|
661,64
|
$241.50
|
||
66009
|
Lubricants
|
493,15
|
$180.000
|
$180.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
27,40
|
$10.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
27,40
|
$10.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
$60.000
|
Spares Subtotal
|
164,38
|
$60.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.018.100
|
|||
DAILY OPEX WITHOUT DD EXPENSES
|
$5.529
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
529
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.529,04
|
$2.018.100
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.529
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
M/T ECO FLEET
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the operation
of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
M/T STENAWECO EVOLUTION
|
Particulars of Vessel:
|
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 50,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
9,86
|
$3.600
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
41,10
|
$15.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
23,29
|
$8.500
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.608,22
|
$952.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
8,22
|
$3.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
296,58
|
$90.000
|
$1.271.600
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
221,92
|
$81.000
|
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.483,84
|
$1.271.600
|
||
Accounts Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
164,38
|
$60.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
15,75
|
$5.750
|
|
64004
|
P&I
|
136,99
|
$50.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$125.750
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
344,52
|
$125.750
|
||
Accounts Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER,ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
27,40
|
$10.000
|
|
68001
|
CABIN STORES - ACCOMODATION
|
27,40
|
$10.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
13,70
|
$5.000
|
|
68013
|
WATER SUPPLY
|
13,70
|
$5.000
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVAL-SUITABILITY INSPECTIONS
|
54,79
|
$20.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66005
|
CLEARING/FORWARDING EXPS
|
109,59
|
$40.000
|
|
66006
|
DECK STORES
|
95,89
|
$35.000
|
|
66007
|
ELECTR. DEPT-STORES
|
27,40
|
$10.000
|
$348.000
|
66008
|
ENGINE STORES
|
68,49
|
$25.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
10,96
|
$4.000
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
13,70
|
$5.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
13,70
|
$5.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
13,70
|
$5.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
68,49
|
$25.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66011
|
STATIONERY EXPS
|
27,40
|
$10.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
13,70
|
$5.000
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
13,70
|
$5.000
|
|
66012
|
TELECOMMUNICATIONS
|
134,25
|
$49.000
|
|
66013
|
TONNAGE TAX
|
54,79
|
$20.000
|
|
66014
|
VARIOUS EXPS
|
27,40
|
$10.000
|
|
Other Vessel Operating Expenses Subtotal
|
953,42
|
$348.000
|
||
66009
|
Lubricants
|
438,36
|
$160.000
|
$160.000
|
Accounts Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
41,10
|
$15.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
41,10
|
$15.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
$70.000
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
|
Spares Subtotal
|
191,78
|
$70.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.135.350
|
DAILY OPEX WITHOUT DD EXPENSES
|
$5.850
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
850
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.850,27
|
$2.135,350
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.850
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
M/T STENAWECO EVOLUTION
|
Duration of Contract Five
|
(5) years, automatically renewed.
|
|
Services and Relevant Fees:
|
● |
Accounting, Reporting, Legal and Administrative Services at cost.
|
● |
USD 550 per day per vessel for Technical and
Commercial, Crew Management, Insurance, Provisions and Bunkering. Applicable 3 months prior delivery from the yard.
|
|
Fee Annual Increase:
|
Based on total percentage increase in the U.S. Consumer Price Index over the previous year, but not less than 2% and not more than
5%.
|
|
Commission on all hires / gross freight / demurrage:
|
1.25%
|
|
Sales and Purchase Commission:
|
1% of the Sale or the Purchase Price or the Contract Price of the Newbuilding Contract.
|
|
N/B Construction – Supervision Fee:
|
7% of actual cost.
|
|
Managers’ Superintendent’s Fee beyond 10 days per annum:
|
USD 500 per day, plus actual expenses.
|
|
Notice of Termination:
|
18 months
|
|
Termination Fees:
|
Fees for 12 months.
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the
operation of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
Hull Number S874 tbn ECO BEL AIR
|
Particulars of Vessel:
|
|
TYPE OF VESSEL
|
Oil Carrier
|
HULL TYPE
|
Double Hull
|
IMO NUMBER
|
9794056
|
FLAG
|
Marshall Islands
|
YEAR & PLACE BUILT
|
2019 at Hyundai Shipyard, Korea
|
CLASS SOCIETY
|
DNV GL
|
CALL SIGN
|
V7A2272
|
LOA, BREADTH, DEPTH
|
277 M / 48 M / 23,2 M
|
SDWT - DRAFT
|
157,275 MT @ 17.15 M
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hull S874 / 157,200 DWT Suezmax Tanker
|
||||
BUDGET Estimation Proposal 2019
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
12,33
|
$4.500
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
54,79
|
$20.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
27,40
|
$10.000
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
13,70
|
$5.000
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.805,48
|
$1.024.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
13,70
|
$5.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
273,97
|
$100.000
|
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
239,73
|
$87.500
|
$1.371.000
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.756,16
|
$1.371.000
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
301,37
|
$100.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
41,10
|
$15.000
|
|
64004
|
P&I
|
301,37
|
$110.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$245.000
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
671,23
|
$245.000
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67005
|
CHEMICALS & GASES
|
54,79
|
$20.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
54,79
|
$20.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67008
|
PAINTS AT SEA
|
54,79
|
$20.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
8,22
|
$3.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
13,70
|
$5.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
13,70
|
$5.000
|
|
67016
|
SUPER.ENGIN/PORT CPTN OTHER FEES&EXPS
|
82,19
|
$30.000
|
$153.000
$346.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
419,18
|
$153.000
|
||
Other Vessel Operating Expenses Subtotal
|
947,95
|
$346.000
|
||
66009
|
Lubricants
|
547,95
|
$200.000
|
$200.000
$65.000
|
Spares Subtotal
|
178,08
|
$65.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.380.000
|
|||
DAILY OPEX WITHOUT DD EXPENSES
|
$6.521
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$6.
521
|
||
TOTAL OPEX WITH DD EXPENSE
|
6.520,55
|
$2.380.000
|
||
DAILY OPEX WITH DD EXPENSES
|
$6.521
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hull S874 tbn ECO BEL AIR
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the
operation of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
M/T STENAWECO EXCELLENCE
|
Particulars of Vessel:
|
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 50,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
9,86
|
$3.600
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
41,10
|
$15.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
23,29
|
$8.500
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.608,22
|
$952.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
8,22
|
$3.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
296,58
|
$90.000
|
$1.271.600
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
221,92
|
$81.000
|
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.483,84
|
$1.271.600
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
164,38
|
$60.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
15,75
|
$5.750
|
|
64004
|
P&I
|
136,99
|
$50.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$125.750
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
344,52
|
$125.750
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER,ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
27,40
|
$10.000
|
|
68001
|
CABIN STORES - ACCOMODATION
|
27,40
|
$10.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
13,70
|
$5.000
|
|
68013
|
WATER SUPPLY
|
13,70
|
$5.000
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVAL-SUITABILITY INSPECTIONS
|
54,79
|
$20.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66005
|
CLEARING/FORWARDING EXPS
|
109,59
|
$40.000
|
|
66006
|
DECK STORES
|
95,89
|
$35.000
|
|
66007
|
ELECTR. DEPT-STORES
|
27,40
|
$10.000
|
$348.000
|
66008
|
ENGINE STORES
|
68,49
|
$25.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
10,96
|
$4.000
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
13,70
|
$5.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
13,70
|
$5.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
13,70
|
$5.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
68,49
|
$25.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66011
|
STATIONERY EXPS
|
27,40
|
$10.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
13,70
|
$5.000
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
13,70
|
$5.000
|
|
66012
|
TELECOMMUNICATIONS
|
134,25
|
$49.000
|
|
66013
|
TONNAGE TAX
|
54,79
|
$20.000
|
|
66014
|
VARIOUS EXPS
|
27,40
|
$10.000
|
|
Other Vessel Operating Expenses Subtotal
|
953,42
|
$348.000
|
||
66009
|
Lubricants
|
438,36
|
$160.000
|
$160.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
41,10
|
$15.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
41,10
|
$15.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
$70.000
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
|
Spares Subtotal
|
191,78
|
$70.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.135.350
|
DAILY OPEX WITHOUT DD EXPENSES
|
$5.850
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
850
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.850,27
|
$2.135,350
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.850
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
M/T STENAWECO EXCELLENCE
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the
operation of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
M/T NORD VALIANT
|
Particulars of Vessel:
|
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 50,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
9,86
|
$3.600
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
41,10
|
$15.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
23,29
|
$8.500
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.608,22
|
$952.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
8,22
|
$3.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
296,58
|
$90.000
|
$1.271.600
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
221,92
|
$81.000
|
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.483,84
|
$1.271.600
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
164,38
|
$60.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
15,75
|
$5.750
|
|
64004
|
P&I
|
136,99
|
$50.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$125.750
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
344,52
|
$125.750
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER,ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
27,40
|
$10.000
|
|
68001
|
CABIN STORES - ACCOMODATION
|
27,40
|
$10.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
13,70
|
$5.000
|
|
68013
|
WATER SUPPLY
|
13,70
|
$5.000
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVAL-SUITABILITY INSPECTIONS
|
54,79
|
$20.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66005
|
CLEARING/FORWARDING EXPS
|
109,59
|
$40.000
|
|
66006
|
DECK STORES
|
95,89
|
$35.000
|
|
66007
|
ELECTR. DEPT-STORES
|
27,40
|
$10.000
|
$348.000
|
66008
|
ENGINE STORES
|
68,49
|
$25.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
10,96
|
$4.000
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
13,70
|
$5.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
13,70
|
$5.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
13,70
|
$5.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
68,49
|
$25.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66011
|
STATIONERY EXPS
|
27,40
|
$10.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
13,70
|
$5.000
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
13,70
|
$5.000
|
|
66012
|
TELECOMMUNICATIONS
|
134,25
|
$49.000
|
|
66013
|
TONNAGE TAX
|
54,79
|
$20.000
|
|
66014
|
VARIOUS EXPS
|
27,40
|
$10.000
|
|
Other Vessel Operating Expenses Subtotal
|
953,42
|
$348.000
|
||
66009
|
Lubricants
|
438,36
|
$160.000
|
$160.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
41,10
|
$15.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
41,10
|
$15.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
$70.000
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
|
Spares Subtotal
|
191,78
|
$70.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.135.350
|
DAILY OPEX WITHOUT DD EXPENSES
|
$5.850
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
850
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.850,27
|
$2.135,350
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.850
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
M/T NORD VALIANT
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the
operation of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
M/T ECO CALIFORNIA
|
Particulars of Vessel:
|
|
TYPE OF VESSEL
|
Oil and Chemicals
Ship Type 2 & 3 |
HULL TYPE
|
Double Hull
|
IMO NUMBER
|
9843780
|
FLAG
|
Marshall Islands
|
YEAR & PLACE BUILT
|
2019 at Hyundai Mipo Dockyard, Ulsan, Korea
|
CLASS SOCIETY
|
DNV-GL
|
CALL SIGN
|
V7A2010
|
LOA, BREADTH, DEPTH
|
183.00 M / 32.20 M / 19.10 M
|
SDWT - DRAFT
|
49,879 MT @ 13.30 M
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 50,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
9,86
|
$3.600
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
41,10
|
$15.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
23,29
|
$8.500
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.608,22
|
$952.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
8,22
|
$3.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
296,58
|
$90.000
|
$1.271.600
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
221,92
|
$81.000
|
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.483,84
|
$1.271.600
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
164,38
|
$60.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
15,75
|
$5.750
|
|
64004
|
P&I
|
136,99
|
$50.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$125.750
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
344,52
|
$125.750
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER,ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
27,40
|
$10.000
|
|
68001
|
CABIN STORES - ACCOMODATION
|
27,40
|
$10.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
13,70
|
$5.000
|
|
68013
|
WATER SUPPLY
|
13,70
|
$5.000
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVAL-SUITABILITY INSPECTIONS
|
54,79
|
$20.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66005
|
CLEARING/FORWARDING EXPS
|
109,59
|
$40.000
|
|
66006
|
DECK STORES
|
95,89
|
$35.000
|
|
66007
|
ELECTR. DEPT-STORES
|
27,40
|
$10.000
|
$348.000
|
66008
|
ENGINE STORES
|
68,49
|
$25.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
10,96
|
$4.000
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
13,70
|
$5.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
13,70
|
$5.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
13,70
|
$5.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
68,49
|
$25.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66011
|
STATIONERY EXPS
|
27,40
|
$10.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
13,70
|
$5.000
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
13,70
|
$5.000
|
|
66012
|
TELECOMMUNICATIONS
|
134,25
|
$49.000
|
|
66013
|
TONNAGE TAX
|
54,79
|
$20.000
|
|
66014
|
VARIOUS EXPS
|
27,40
|
$10.000
|
|
Other Vessel Operating Expenses Subtotal
|
953,42
|
$348.000
|
||
66009
|
Lubricants
|
438,36
|
$160.000
|
$160.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
41,10
|
$15.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
41,10
|
$15.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
$70.000
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
|
Spares Subtotal
|
191,78
|
$70.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.135.350
|
DAILY OPEX WITHOUT DD EXPENSES
|
$5.850
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
850
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.850,27
|
$2.135,350
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.850
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
M/T ECO CALIFORNIA
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the operation
of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
M/T ECO REVOLUTION
|
Particulars of Vessel:
|
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 39,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
CREW SALARIES & FIXED OVERTIME
|
2.516,44
|
$918.500
|
||
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
||
OWNERS CREW BONUS
|
41,10
|
$15.000
|
||
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
||
CREW COMPULSORY INSURANCE
|
6,85
|
$2.500
|
||
CREW INSURANCE FOR P&I DEDUCTIBLE
|
16,44
|
$6.000
|
||
CREW PRE-JOINING TRAININGS
|
27,40
|
$10.000
|
||
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
||
CREW VARIOUS EXPENSES
|
219,18
|
$80.000
|
||
MANNING AGENT MANAGEMENT FEE
|
82,19
|
$30.000
|
||
MANNING AGENT EXPENSES
|
9,86
|
$3.600
|
||
VICTUALING - PROVISIONS
|
221,92
|
$81.000
|
$1.239.100
|
|
WATER
|
10,96
|
$4.000
|
||
Crew Subtotal
|
3.394,79
|
$1.239.100
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
273,97
|
$100.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
||
64003
|
WAR RISKS ANNUAL PREMIUM
|
8,22
|
$3.000
|
|
64004
|
P&I
|
135,62
|
$49.500
|
|
64005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
||
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$162.500
|
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
||
Insurance Subtotal
|
445,21
|
$162.500
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER.ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
41,10
|
$15.000
|
|
68001
|
CABIN STORES – ACCOMODATION
|
13,70
|
$5.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
6,85
|
$2.500
|
|
68013
|
WATER SUPPLY
|
0,00
|
$0
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVALS-SUITABILITY INSPECTIONS
|
82,19
|
$30.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66005
|
CLEANING/FORWARDING EXPS
|
68,49
|
$25.000
|
|
66006
|
DECK STORES
|
41,10
|
$15.000
|
|
66007
|
ELCTR.DEPT-STORES
|
13,70
|
$5.000
|
|
66008
|
ENGINE STORES
|
27,40
|
$10.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
4,11
|
$1.500
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
41,10
|
$15.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
27,40
|
$10.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
27,40
|
$10.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66011
|
STATIONERY EXPS
|
13,70
|
$5.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
6,85
|
$2.500
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
27,40
|
$10.000
|
|
66012
|
TELECOMMUNICATIONS
|
41,10
|
$15.000
|
|
66013
|
TONNAGE TAX
|
20,55
|
$7.500
|
$241.500
|
66014
|
VARIOUS EXPS
|
6,85
|
$2.500
|
|
Other Vessel Operating Expenses Subtotal
|
661,64
|
$241.50
|
||
66009
|
Lubricants
|
493,15
|
$180.000
|
$180.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
27,40
|
$10.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
27,40
|
$10.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
$60.000
|
Spares Subtotal
|
164,38
|
$60.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.018.100
|
|||
DAILY OPEX WITHOUT DD EXPENSES
|
$5.529
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
529
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.529,04
|
$2.018.100
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.529
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
M/T ECO REVOLUTION
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and
expenses resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within
such deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the
operation of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
1
st
January 2019
|
Name of Vessel(s):
|
Hull Number S875 tbn ECO BEVERLY HILLS
|
Particulars of Vessel:
|
|
TYPE OF VESSEL
|
Oil Carrier
|
HULL TYPE
|
Double Hull
|
IMO NUMBER
|
9794068
|
FLAG
|
Marshall Islands
|
YEAR & PLACE BUILT
|
2019 at Hyundai Shipyard, Korea
|
CLASS SOCIETY
|
DNV GL
|
CALL SIGN
|
V7A2273
|
LOA, BREADTH, DEPTH
|
277 M / 48 M / 23,2 M
|
SDWT - DRAFT
|
157,275 MT @ 17.15 M
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hull S875 / 157,200 DWT Suezmax Tanker
|
||||
BUDGET Estimation Proposal 2019
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
12,33
|
$4.500
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
54,79
|
$20.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
27,40
|
$10.000
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
13,70
|
$5.000
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.805,48
|
$1.024.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
13,70
|
$5.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
273,97
|
$100.000
|
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
239,73
|
$87.500
|
$1.371.000
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.756,16
|
$1.371.000
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
301,37
|
$100.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
41,10
|
$15.000
|
|
64004
|
P&I
|
301,37
|
$110.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$245.000
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
671,23
|
$245.000
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67005
|
CHEMICALS & GASES
|
54,79
|
$20.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
54,79
|
$20.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67008
|
PAINTS AT SEA
|
54,79
|
$20.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
8,22
|
$3.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
13,70
|
$5.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
13,70
|
$5.000
|
|
67016
|
SUPER.ENGIN/PORT CPTN OTHER FEES&EXPS
|
82,19
|
$30.000
|
$153.000
$346.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
419,18
|
$153.000
|
||
Other Vessel Operating Expenses Subtotal
|
947,95
|
$346.000
|
||
66009
|
Lubricants
|
547,95
|
$200.000
|
$200.000
$65.000
|
Spares Subtotal
|
178,08
|
$65.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.380.000
|
|||
DAILY OPEX WITHOUT DD EXPENSES
|
$6.521
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$6.
521
|
||
TOTAL OPEX WITH DD EXPENSE
|
6.520,55
|
$2.380.000
|
||
DAILY OPEX WITH DD EXPENSES
|
$6.521
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
1
st
January 2019
|
Hull S875 tbn ECO BEVERLY HILLS
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the operation
of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement:
|
11
th
January 2019
|
Name of Vessel(s):
|
M/T ECO PALM DESERT
|
Particulars of Vessel:
|
|
TYPE OF VESSEL
|
Oil and Chemicals
Ship Type IMO 2 & 3 |
HULL TYPE
|
Double Hull
|
IMO NUMBER
|
9828912
|
FLAG
|
Marshall Islands
|
YEAR & PLACE BUILT
|
2018 at Hyundai Vinashin Shipyard, Vietnam
|
CLASS SOCIETY
|
Lloyd’s Register
|
CALL SIGN
|
V7BP9
|
LOA, BREADTH, DEPTH
|
183 M / 32,20 M / 19,10 M
|
SDWT - DRAFT
|
49,932 MT @ 13.30 M
|
ANNEX “B” (DETAILS OF CREW) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
11
th
January 2019
|
Rank
|
Number
|
Nationality
|
Master
|
1
|
Filipino
|
Chief Officer
|
1
|
Filipino
|
Second Officer
|
1
|
Filipino
|
Third Officer
|
1
|
Filipino
|
Chief Engineer
|
1
|
Filipino
|
Second Engineer
|
1
|
Filipino
|
Third Engineer
|
1
|
Filipino
|
Electrician
|
1
|
Filipino
|
Pumpman
|
1
|
Filipino
|
Bosun
|
1
|
Filipino
|
Able Seaman
|
3
|
Filipino
|
Ordinary Seaman
|
2
|
Filipino
|
Deck Cadet
|
1
|
Filipino
|
Oiler
|
1
|
Filipino
|
Wiper
|
1
|
Filipino
|
Engine Cadet
|
1
|
Filipino
|
Cook
|
1
|
Filipino
|
Mess Boy
|
2
|
Filipino
|
CREW TOTAL
|
22
|
ANNEX “C” (ANNUAL MANAGEMENT BUDGET)
TO THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
11
th
January 2019
|
Hyundai Vinashin Shipyard MR Oil and Chemical Tanker 50,000 DWT
|
||||
Proposed Budget for first year of operations
|
||||
Accounts
Code
|
Crew
|
Daily Amount
|
Annual Amount
|
Annual Summary
|
68002
|
CREW AGENTS/SUBMANAGERS EXPENSES
|
9,86
|
$3.600
|
|
68003
|
CREW AGENTS/SUBMANAGERS FEES
|
82,19
|
$30.000
|
|
68004
|
CREW BONUS (TANK CLEANING, VETTING BONUS, ETC)
|
41,10
|
$15.000
|
|
68014
|
CREW INDEMNITIES
|
0,00
|
$0
|
|
68005
|
CREW COMPULSORY INSURANCE & CREW INSURANCE FOR P&I DEDUCTIBLE
|
23,29
|
$8.500
|
|
68006
|
CREW PRE-JOINING MEDICAL EXPS
|
9,59
|
$3.500
|
|
68021
|
CREW MISC CLAIMABLE MATTERS
|
0,00
|
$0
|
|
68007
|
ADDITIONAL CREW OVERTIME
|
0,00
|
$0
|
|
08008
|
CREW SALARIES & FIXED OVERTIME & OWNERS’ CREW BONUS INCLUDING ADDITIONAL OVERLAPPING USD 20,000
|
2.608,22
|
$952.000
|
|
68009
|
CREW TRANSPORTATION EXPS
|
232,88
|
$85.000
|
|
68010
|
CREW UNIFORMS/WORKING CLOTHES
|
8,22
|
$3.000
|
|
68011
|
CREW PRE-JOINING TRAININGS & CREW VARIOUS EXPENSES
|
296,58
|
$90.000
|
$1.271.600
|
68019
|
GREEK CREW MEDICAL EXPS
|
0,00
|
$0
|
|
68018
|
GREEK CREW MISC EXPS
|
0,00
|
$0
|
|
68017
|
GREEK CREW TRANSPORTATION EXPS
|
0,00
|
$0
|
|
68016
|
GREEK CREW WAGES
|
0,00
|
$0
|
|
68012
|
PROVISIONS
|
221,92
|
$81.000
|
|
68020
|
SHIPOWNERS’ CONTRIBUTIONS
|
0,00
|
$0
|
|
68022
|
CREW LEAVE PAY
|
0,00
|
$0
|
|
Crew Subtotal
|
3.483,84
|
$1.271.600
|
||
Accounts
Code
|
Insurance
|
|||
64001
|
HULL & MACHINERY
|
164,38
|
$60.000
|
|
64002
|
INSURANCE LOSS OF HIRE
|
0,00
|
$0
|
|
69003
|
WAR RISKS ANNUAL PREMIUM
|
15,75
|
$5.750
|
|
64004
|
P&I
|
136,99
|
$50.000
|
|
65005
|
FD D
|
27,40
|
$10.000
|
|
64006
|
MARINE INTEREST
|
0,00
|
$0
|
|
64007
|
PURCHASERS INTEREST INSURANCE
|
0,00
|
$0
|
$125.750
|
64008
|
BACK CALLS-(INSURANCE) SUPPLEMENTARY
|
0,00
|
$0
|
|
Insurance Subtotal
|
344,52
|
$125.750
|
||
Accounts
Code
|
Repairs and Maintenance
|
|||
67001
|
AUX.MACITINERY REPAIRS/MAINTENANCE
|
27,40
|
$10.000
|
|
67003
|
BOILER REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67005
|
CHEMICALS & GASES
|
41,10
|
$15.000
|
|
67013
|
DECK SPARE PARTS - REPAIR/MAINTENANCE
|
27,40
|
$10.000
|
|
67006
|
DIESEL GENERATORS - REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67017
|
MAIN ENGINE REPAIRS/MAINTENANCE
|
41,10
|
$15.000
|
|
67008
|
PAINTS AT SEA
|
27,40
|
$10.000
|
|
67010
|
RADIO ROOM NAVIGATION MAINTENANCE
|
13,70
|
$5.000
|
|
67011
|
REPAIRS - MAINTENANCE
|
41,10
|
$15.000
|
|
67012
|
SLOPS & GARBAGE REMOVAL
|
0,00
|
$0
|
|
67016
|
SUPER,ENGIN/PORT CPTN OTHER FEES&EXPS
|
54,79
|
$20.000
|
$135.000
|
67019
|
VESSELS IT HARDWARE EQUIPMENT
|
13,70
|
$5.000
|
|
Repairs and Maintenance Subtotal
|
369,86
|
$135.000
|
||
Accounts
Code
|
Other Vessel Operating Expenses
|
|||
66010
|
SAFETY ITEMS
|
27,40
|
$10.000
|
|
68001
|
CABIN STORES - ACCOMODATION
|
27,40
|
$10.000
|
|
68015
|
GALLEY-KITCHEN EQUIPMENT
|
13,70
|
$5.000
|
|
68013
|
WATER SUPPLY
|
13,70
|
$5.000
|
|
66002
|
ACCRUALS-OPERATING EXPS
|
0,00
|
$0
|
|
66001
|
APPROVAL-SUITABILITY INSPECTIONS
|
54,79
|
$20.000
|
|
66004
|
CHARTS/N.PUBLICATIONS
|
27,40
|
$10.000
|
|
66023
|
CLASS AND STATUT CERTIFICATES/INSPECTION
|
41,10
|
$15.000
|
|
66005
|
CLEARING/FORWARDING EXPS
|
109,59
|
$40.000
|
|
66006
|
DECK STORES
|
95,89
|
$35.000
|
|
66007
|
ELECTR. DEPT-STORES
|
27,40
|
$10.000
|
$348.000
|
66008
|
ENGINE STORES
|
68,49
|
$25.000
|
|
66022
|
FLAG CERTIFICATES/INSPECTION
|
10,96
|
$4.000
|
|
66026
|
OTHER CONSULTANCY DOCUMENTATION SERVICES
|
13,70
|
$5.000
|
|
66021
|
PORT DUES RELATED TO PROTECTING AGENTS
|
13,70
|
$5.000
|
|
66018
|
PROTECTING AGENTS FEES/EXPENSES
|
13,70
|
$5.000
|
|
66027
|
QUALITY DPT CERTIFICATES/INSPECTION
|
68,49
|
$25.000
|
|
66024
|
SAFETY EQUIP MAR CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66025
|
SAFETY EQUIP TEC CERTIFICATES/INSPECTION
|
27,40
|
$10.000
|
|
66011
|
STATIONERY EXPS
|
27,40
|
$10.000
|
|
66019
|
SUBSCRIPTIONS & MEMBERSHIPS
|
13,70
|
$5.000
|
|
66020
|
TECHNICAL CONSULTANCY DOCUMENTATION SERV
|
13,70
|
$5.000
|
|
66012
|
TELECOMMUNICATIONS
|
134,25
|
$49.000
|
|
66013
|
TONNAGE TAX
|
54,79
|
$20.000
|
|
66014
|
VARIOUS EXPS
|
27,40
|
$10.000
|
|
Other Vessel Operating Expenses Subtotal
|
953,42
|
$348.000
|
||
66009
|
Lubricants
|
438,36
|
$160.000
|
$160.000
|
Accounts
Code
|
Spares
|
|||
67002
|
AUX.MACHINERY SPARE PARTS
|
41,10
|
$15.000
|
|
67004
|
BOILER SPARES
|
27,40
|
$10.000
|
|
67014
|
DECK SPARE PARTS
|
41,10
|
$15.000
|
|
67007
|
DIESEL GENERATORS SPARE PARTS
|
27,40
|
$10.000
|
|
67015
|
MAIN ENGINE SPARE PARTS
|
41,10
|
$15.000
|
$70.000
|
67009
|
RADIO ROOM NAVIGATION-EQUIPMENT SPARES
|
13,70
|
$5.000
|
|
Spares Subtotal
|
191,78
|
$70.000
|
||
Extraordinary Expenses
|
0,00
|
|||
Less corresponding claims
|
0,00
|
|||
TOTAL OPEX WITHOUT DD EXPENSES
|
$2.135.350
|
DAILY OPEX WITHOUT DD EXPENSES
|
$5.850
|
|||
DO Adjustments (5y / 2.5y amortization)
|
0,00
|
$5.
850
|
||
TOTAL OPEX WITH DD EXPENSE
|
5.850,27
|
$2.135,350
|
||
DAILY OPEX WITH DD EXPENSES
|
$5.850
|
ANNEX “D” (ASSOCIATED VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “SHIPMAN 98’ |
Date of Agreement: |
11
th
January 2019
|
M/T ECO PALM DESERT
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and expenses
resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within such
deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the
operation of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per ANNEX D of this
agreement.
|
Top Ships Inc.
|
|||||
By:
|
/s/ Alexandros Tsirikos
|
||||
Name:
|
Alexandros Tsirikos
|
||||
Title:
|
DIRECTOR
|
Central Mare Inc.
|
|||||
By:
|
/s/ Stylianos Giamanis
|
||||
Name:
|
STYLIANOS GIAMANIS
|
||||
Title:
|
PRESIDENT/TREASURER/DIRECTOR
|
CENTRAL SHIPPING INC
|
TRUST COMPANY COMPLEX AJELTAKE ROAD, AJELTAKE ISLAND MAJURO, MARSHALL ISLANDS MU 96960
|
Subject: |
Offer letter for the provision of management services
|
Trust Company Complex Ajeltake Road, Ajeltake Island Majuro, Marshall Islands MH 96960
Phone: 30 210 8128260
|
CENTRAL SHIPPING INC
|
TRUST COMPANY COMPLEX AJELTAKE ROAD, AJELTAKE ISLAND MAJURO, MARSHALL ISLANDS MU 96960
|
Type of management services:
|
Technical, Operations, Insurance, Bunkering, Crew, Provisions, Accounting & Reporting, Commercial, Chartering,
Sale and Purchase, Newbuilding supervision, Legal and administrative services.
|
Duration of Contract:
|
Five (5) years, automatically renewed.
|
Services and Relevant Fees:
|
●
USD
550 per day per vessel for Technical, Commercial, Crew Management, Insurance, Provisions and Bunkering.
Applicable 3 months prior delivery from the yard.
●
Accounting,
Reporting, Legal and Administrative Services at cost.
|
Fee Annual Increase:
|
Based on total percentage increase in the U.S. Consumer Price Index over the previous year, but not less than 2% and
not more than 5%. Applicable for the signing of this agreement for all vessels in Annex “A” and will apply to all vessels acquired by Top Ships Inc subsequent to the date of this offer letter and for as long as this management agreement is
in place.
|
Commission on all hires / gross freight / demurrage:
|
1.25%
|
Sales and Purchase Commission:
|
1% of the Sale or the Purchase Price, or the contract price of the Newbuilding Contract.
|
N/B Construction - Supervision Fee:
|
7% of actual cost.
|
Managers' Superintendent’s Fee
|
USD 500 per day, plus actual expenses.
|
Trust Company Complex Ajeltake Road, Ajeltake Island Majuro, Marshall Islands MH 96960
Phone: 30 210 8128260
|
CENTRAL SHIPPING INC
|
TRUST COMPANY COMPLEX AJELTAKE ROAD, AJELTAKE ISLAND MAJURO, MARSHALL ISLANDS MU 96960
|
beyond 10 days per annum:
|
|
Financial Consultancy Fee on derivative agreements, loan financing and refinancing:
|
0.20% on the total transaction amount.
|
Annual Performance Incentive Fee:
|
At your discretion.
|
Notice of Termination:
|
18 months
|
Termination Fees:
|
Fees for 12 months.
|
1.
|
Manager shall be entitled to receive additional remuneration for any increase in administrative costs and
expenses resulting from the introduction of a new, or a change in the interpretation of applicable laws and regulations, or concerning ship management services.
|
2.
|
Owners to pay the deductible of any insurance claim relating to the vessels, or for any claim that is within
such deductible range. All insurance related rebates to be for the benefit of the Manager.
|
3.
|
Owners to pay any tax, dues, or ransom in a case of piracy, or fines imposed on vessel or Manager, due to the
operation of the vessel.
|
4.
|
The above management fees are agreed on the basis of the number of the associated vessels as per Annex “A” of this
agreement and will apply to all vessels acquired by Top Ships Inc subsequent to the date of this offer letter and for as long as this management agreement is in place.
|
Trust Company Complex Ajeltake Road, Ajeltake Island Majuro, Marshall Islands MH 96960
Phone: 30 210 8128260
|
CENTRAL SHIPPING INC
|
TRUST COMPANY COMPLEX AJELTAKE ROAD, AJELTAKE ISLAND MAJURO, MARSHALL ISLANDS MU 96960
|
Yours Faithfully
|
|
/s/ Stylianos Giamanis
|
|
Stylianos Giamanis
|
|
Central Shipping Inc.
|
Accepted:
Top Ships Inc.
|
Signature: /s/ Alexandros Tsirikos
|
|
Name: Alexandros Tsirikos
|
|
Title: CFO
|
|
Date: 1/1/2019
|
Trust Company Complex Ajeltake Road, Ajeltake Island Majuro, Marshall Islands MH 96960
Phone: 30 210 8128260
|
CENTRAL SHIPPING INC
|
TRUST COMPANY COMPLEX AJELTAKE ROAD, AJELTAKE ISLAND MAJURO, MARSHALL ISLANDS MU 96960
|
M/T Stenaweco Energy
|
||
M/T Stenaweco Evolution
|
||
M/T Eco Fleet
|
||
M/T Eco Revolution
|
||
M/T Stenaweco Excellence
|
||
M/T Nord Valiant
|
||
M/T Stenaweco Elegance
|
||
M/T Eco Palm Desert
|
||
Hull Number H8218 (TBN M/T Eco California)
|
||
Hull Number H8242 (TBN M/T Eco Marina Del Ray)
|
||
Hull Number S874 (TBN M/T Eco Bel Air)
|
||
Hull Number S875 (TBN M/T Eco Beverly Hills)
|
Trust Company Complex Ajeltake Road, Ajeltake Island Majuro, Marshall Islands MH 96960
Phone: 30 210 8128260
|
28 Business restrictions
|
78
|
29 Events of Default
|
81
|
Section 9 - Changes to Parties
|
87
|
30 Changes to the Lenders
|
87
|
31 Changes to the Obligors
|
90
|
Section 10 - The Finance Parties
|
91
|
32 Roles of Agent, Security Agent and Arranger
|
91
|
33 Trust and security matters
|
102
|
34 Enforcement of Transaction Security
|
106
|
35 Application of proceeds
|
107
|
36 Conduct of business by the Finance Parties
|
110
|
37 Sharing among the Finance Parties
|
110
|
Section 11 - Administration
|
112
|
38 Payment mechanics
|
112
|
39 Set-off
|
115
|
40 Notices
|
116
|
41 Calculations and certificates
|
118
|
42 Partial invalidity
|
118
|
43 Remedies and waivers
|
118
|
44 Amendments and waivers
|
118
|
45 Confidential Information
|
124
|
46 Confidentiality of Funding Rates
|
126
|
47 Counterparts
|
127
|
48 Contractual recognition of bail-in
|
127
|
Section 12 - Governing Law and Enforcement
|
128
|
49 Governing law
|
128
|
50 Enforcement
|
128
|
Schedule 1 The original parties
|
129
|
Schedule 2 Ship information
|
133
|
Schedule 3 Conditions precedent
|
135
|
Schedule 4 Utilisation Request
|
140
|
Schedule 5 Form of Transfer Certificate
|
141
|
Schedule 6 Forms of Notifiable Debt Purchase Transaction Notice
|
144
|
Schedule 7 Form of Compliance Certificate
|
146
|
(1) |
TOP SHIPS INC
.
(the
Borrower
);
|
(2) |
ASTARTE INTERNATIONAL INC
.
(the
Guarantor
);
|
(3) |
AMSTERDAM TRADE BANK N
.
V
.
as mandated lead arranger (the
Arranger
)
;
|
(4) |
THE FINANCIAL INSTITUTIONS
listed in
Schedule 1 as lenders (the
Original Lenders
);
|
(5) |
AMSTERDAM TRADE BANK N
.
V
.
as agent of the other Finance Parties (the
Agent
);
and
|
(6) |
AMSTERDAM TRADE BANK N
.
V
.
as security trustee for the
Finance Parties (the
Security Agent
).
|
1. |
Definitions and interpretation
|
1.1 |
Definit
i
ons
|
|
(a) |
a bank or financial institution which has a rating for its long-term unsecured and non-credit
-
enhanced debt obligations of
“
A-
”
or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or
“
Baa1
”
or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency
;
or
|
|
(b) |
any other bank or financial institution approved by the Agent and the Borrower
.
|
|
(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) |
any law or regulation in force as at the date hereof implementing the Basel II Accord
,
(including the relevant provisions of CRD IV and CRR) to the extent only that such law or regulation re-enacts and/or implements the requirements of the Basel II Accord but excluding any provision of
such law or regulation implementing the Basel III Accord; and
|
|
(b) |
any Basel II Approach adopted by a Finance Party or any of
its
Affiliates
.
|
|
(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
” other than,
in
each such case, the agreements, rules, guidance and
standards set out
in
Reformed Basel III.
|
|
(a) |
the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a
Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the relevant principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the relevant principal amount or Unpaid Sum received by it on deposit with
a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of that Interest Period.
|
|
(a) |
in relation to an Original Lender
,
the amount set
opposite its name under the heading
“Commitment”
in Schedule 1
(The original parties)
and the amount of any other Commitment assigned to it under this Agreement; and
|
|
(b) |
in relation to any other Lender, the amount of any Commitment assigned to it under this Agreement,
|
|
(a) |
any member of the Group or any of its advisers; or
|
|
(b) |
another Finance Party
,
if
the information was obtained by that Finance Party directly or indirectly from any member of the Group 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 45
(Confidential Information);
or
|
|
(B) |
is identified in writing or orally if given orally at the time of delivery as non-confidential by any member of the Group 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
|
|
(ii) |
any Funding Rate.
|
|
(a) |
purchases by way of assignment or transfer;
|
|
(b) |
enters into any sub-participation in respect of
;
or
|
|
(c) |
enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of
,
|
|
(a) |
which has failed to make its participation in a Loan available (or has notified the Agent or the Borrower (which has notified the Agent) that it will not make
its participation in a Loan available) by the Utilisation Date of that Loan in accordance with clause 5.4
(Lenders’ participation);
|
|
(b) |
which has otherwise rescinded or repudiated a Finance Document; or
|
|
(c) |
with respect to which an Insolvency Event has occurred and is continuing,
unless, in the case of paragraph (a) above: |
|
(i) |
its failure to pay is caused by:
|
|
(A) |
administrative or technical error
;
or
|
|
(B) |
a Disruption Event
;
and,
|
|
(ii) |
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question
.
|
|
(a) |
a mater
i
al 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
|
|
(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
preventing that, or any other Party
:
|
|
(i) |
from performing its paymen
t
obligat
i
ons under the Finance Documents
;
or
|
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents
,
|
|
(a) |
in relation to the Borrower, all money at any time payable to the Borrower for or in relation to its operat
i
on or otherwise including div
i
dends or damages for breach and payments for
termination or variation of any contractual commitment or otherwise; and
|
|
(b) |
in relation to the Collateral Ship and a person, all money at any time payable to that person for or in relation to the use or operation of the Collateral
Ship, including freight, hire and passage moneys, money payable to that person for the provision of services by or from the Collateral Ship or under any charter commitment, requisition for hire compensation, remuneration for salvage and
towage services
,
demurrage and detention moneys and damages for breach and payments for termination or variation of any charter
commitment.
|
|
(a) |
enforcement
,
clean-up
,
removal or other governmental or regulatory action or orders or claims instituted or made pursuant to any Environmental Laws or resulting from a Spill; or
|
|
(b) |
any claim made by any other person relating to a Spill.
|
|
(a) |
any Fleet Vessel or its owner
,
operator or manager is
liable for Environmental Claims arising from the Spill (other than Environmental Claims arising and fully satisfied before the date of this Agreement); and/or
|
|
(b) |
any Fleet Vessel is arrested or attached
i
n connection
with any such Environmental Claim.
|
|
(a) |
in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that
date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement;
or
|
|
(b) |
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
|
(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 regulat
i
on 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) |
moneys borrowed and debit balances at banks or other financial institutions;
|
|
(b) |
any amount raised under any acceptance under any acceptance credit or bill discounting 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 respect of any lease or hire purchase contract which would, in accordance with GAAP be treated as a finance or capital lease;
|
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition
under GAAP);
|
|
(f) |
any Treasury Transaction (and, when calculating the value of that Treasury 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 Treasury Transaction, that amount) shall be taken into account);
|
|
(g) |
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;
|
|
(h) |
in respect of the Borrower only, any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Reduction
Date or are otherwise classified as borrowings under GAAP);
|
|
(i) |
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering
into
the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the
supply of assets or services and payment is due more than 180 days after the date of supply;
|
|
(j) |
any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) of a type not
referred to in any other paragraph of this definition having the commercial effect of a borrowing or otherwise classified as borrowings under GAAP;
and
|
|
(k) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above
.
|
|
(a) |
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for
payment;
|
|
(b) |
the Agent otherwise rescinds or repudiates a Finance Document;
|
|
(c) |
(if the Agent is also a Lender) it is a Defaulting Lender under paragraphs (a) or (b) of the definition of
“Defaulting
Lender
”
; or
|
|
(d) |
an Insolvency Event has occurred and is continuing with respect to the Agent,
unless, in the case of paragraph (a) above
:
|
|
(i) |
its failure to pay is caused by:
|
|
(A) |
administrative or technical error
;
or
|
|
(B) |
a Disruption Event; and
|
|
(ii) |
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
|
(a) |
each Finance Party, each Receiver, any Delegate and any attorney, agent or other person appointed by them under the Finance Documents;
|
|
(b) |
each Affiliate of those persons; and
|
|
(c) |
any officers, directors, employees, advisers, representatives or agents of any of the above persons.
|
|
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
|
(d) |
institutes or has instituted against
it,
by a
regulator,
supervisor or any similar official with primary
insolvency,
rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or
similar official;
|
|
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition
instituted
or presented against
it,
such proceeding or petition is instituted or presented by a person or
entity not described in paragraph (d) above and:
|
|
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding up or liquidation; or
|
|
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
|
(f) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
|
(g) |
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in
paragraph (d) above);
|
|
(h) |
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other enforcement action
or legal process levied, enforced, taken or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within
30 days thereafter;
|
|
(i) | causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or |
|
(j) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
|
(a) |
all policies and contracts of insurance; and
|
|
(b) |
all entries in a protection and indemnity or war risks or other mutual insurance association,
|
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the relevant Interest Period; and
|
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant Interest Period,
|
|
(a) |
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency,
reorganisation and other laws generally affecting the rights of creditors;
|
|
(b) |
the time barring of claims under the Limitation Act 1980 and the Foreign Limitation Periods Act 1984, the possibility that an undertaking to assume liability
for, or indemnify a person against, non-payment of UK stamp duty may be void and defences of set-off or counterclaim; and
|
|
(c) |
similar principles, rights and defences under the laws of any Relevant Jurisdiction.
|
|
(a) |
any Original Lender; and
|
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with clause 30
(Changes to the Lenders),
|
|
(a) |
the applicable Screen Rate as of 11:00 a.m. on the relevant Quotation Day for a period equal in length to the Interest Period of that Loan or Unpaid Sum; or
|
|
(b) |
as otherwise determined pursuant to clause 11.1 (
Unavailability
of Screen Rate),
|
|
(a) |
the business or financial condition of an Obligor; or
|
|
(b) |
the ability of an Obligor to perform its obligations under the Finance Documents
;
or
|
|
(c) |
the legal
i
ty
,
val
i
dity or enforceabil
i
ty of
,
or the effect
i
veness or rank
i
ng of any Security Interest granted or purporting to be granted pursuant to any
of
,
the Finance Documents or the rights or remed
i
es 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 the calendar
month in which that period is to end (if there is one) or on the immediately preceding Business Day (if there is not);
|
|
(b) |
if there is no numer
i
cally corresponding day in the
calendar month in which tha
t
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) |
the Share Security;
|
|
(b) |
the Account Security in relation to each Operating Account;
|
|
(c) |
the Mortgage;
|
|
(d) |
the General Assignment;
|
|
(e) |
the Charter Assignment; and
|
|
(f) |
any Manager’s Undertaking if required under clause 23.9
(Manager).
|
|
(a) |
any ship repairer’s or outfitter’s possessory lien in respect of the Collateral Ship for an amount not exceeding the Major Casualty Amount;
|
|
(b) |
any lien on the Collateral Ship for master’s, officer’s or crew’s wages outstanding in the ordinary course of its trading;
|
|
(c) |
any lien on the Collateral Ship for salvage or general average; and
|
|
(d) |
any other lien on the Collateral Ship arising by operation of law for claims incurred in the ordinary course of the operation
,
repair or maintenance of the Collateral Ship and which are outstanding for not longer than thirty (30) days or for an aggregate amount not exceeding the Major
Casualty Amount.
|
|
(a) |
granted by the Finance Documents
;
or
|
|
(b) |
approved by the Majority Lenders; or
|
|
(c) |
a Permitted Maritime Lien; or
|
|
(d) |
granted by the Post-Delivery Facility Agreement and any Post-Delivery Finance Documents
.
|
|
(a) |
its Original Jurisdiction;
|
|
(b) |
any jurisdiction where any Charged Property owned by it is situated;
|
|
(c) |
any jurisd
i
ction where it conducts its bus
i
ness
;
and
|
|
(d) |
any jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
|
(b) |
formally designated, nominated or recommended as the replacement for the Screen Rate by:
|
|
(i) |
the administrator of that Screen Rate; or
|
|
(ii) |
any Relevant Nominating Body,
|
|
(c) |
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the
appropriate successor to the Screen Rate; or
|
|
(d) |
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to the Screen Rate.
|
|
(a) |
made or to be made on the same day that a maturing Loan is due to be repaid;
|
|
(b) |
the aggregate amount of which is equal or less than the amount of the maturing Loan; and
|
|
(c) |
made or to be made for the purpose of refinancing a maturing Loan.
|
|
(a) |
is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person) or otherwise a target of Sanctions;
|
|
(b) |
is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of or, such country or territory which is, or
whose government is, subject to Sanctions broadly prohibiting dealings with such government, country or territory;
|
|
(c) |
is directly or indirectly owned by or controlled by a person referred to in (a) and/or (b) above; or
|
|
(d) |
owns or controls a person referred to in (a) and/or (b) above.
|
|
(a) |
the United States of America;
|
|
(b) |
the United Nations Security Council;
|
|
(c) |
the United Kingdom;
|
|
(d) |
the European Union or any of its member states;
|
|
(e) |
any country to which any Obligor or any Affiliate of any of them is bound; or
|
|
(f) |
the respective governmental institutions and agencies of any of the foregoing, including without limitation
,
the Office of Foreign Assets Control of the US Department of Treasury (OFAC), the United States Department of State and Her Majesty’s Treasury (HMT) (together
Sanctions Authorities
).
|
|
(a) |
the methodology, formula or other means of determining that Screen Rate has
,
in the opinion of the Majority Lenders, and the Borrower materially changed; or
|
|
(A) |
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is
i
nsolvent
;
or
|
|
(B) |
information is published
i
n any order, decree, notice,
petition or filing, however described, of or filed with a court, tribunal,
exchange, regulatory authority or similar administrative,
regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent, provided that, in each case, at that time, there is no successor administrator to continue to provide that Scree Rate; or
|
|
(ii) |
the administrator of that Screen Rate publicly announces that it has ceased or will cease
,
to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate; or
|
|
(iii) |
the supervisor of the administrator of that Screen Rate publicly announces that the Screen Rate has been or will be permanently or indefinitely discontinued;
or
|
|
(c) |
the administrator of the Screen Rate determines that the Screen Rate should be calculated in accordance with its reduced submissions or other contingency or
fallback policies or arrangements and either:
|
|
(i) |
the circumstance(s) or event(s) leading to such determination are not (in the op
i
nion of the Majority Lenders and the Borrower) temporary
;
or
|
|
(ii) |
that Screen Rate is calculated in accordance with any such policy or arrangement for a period no less than 15 Business Days; or
|
|
(d) |
in the opinion of the Majority Lenders and the Borrower, the Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under
this Agreement.
|
|
(a) |
the Original Security Documents; and
|
|
(b) |
any other document as may be executed to guarantee and/or secure any amounts owing to the Finance Parties under this Agreement or any other Finance Document.
|
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Finance Parties and all proceeds of that Transaction
Security;
|
|
(b) |
all obligations expressed to be undertaken by any Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the
Finance Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Finance Parties; and
|
|
(c) |
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 Finance Parties.
|
|
(a) |
directly or indirectly controlled by such person
;
or
|
|
(b) |
of whose dividends or distributions on ordinary voting share capital such person is beneficially entitled to receive more than 50 per cent,
|
|
(a) |
actual, constructive, compromised or arranged total loss
;
or
|
|
(b) |
requisition for title
,
confiscation or other compulsory
acquisition by a government entity
;
or
|
|
(c) |
hijacking, theft, condemnation, capture, seizure, arrest or detention for more than 90 days or in the case of p
i
racy for more than 180 days
.
|
|
(a) |
in the case of an actual total loss, the date it happened or
,
if
such date is not known
,
the date on which the Collateral Ship was last reported
;
|
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss, the earliest of:
|
|
(i) |
the date notice of abandonment of the Collateral Ship is given to its insurers; or
|
|
(ii) |
if the insurers do not admit such a claim
,
the date later
determined by a competent court of law to have been the date on which the total loss happened
;
or
|
|
(iii) |
the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the Collateral Sh
i
p’s insurers
;
|
|
(c) |
in the case of a requisition for title, confiscation or compulsory acquisition, the date it happened; and
|
|
(d) |
in the case of hijacking, theft
,
condemnation, capture
,
se
i
zure
,
arrest or detention, the date 90 days after the date upon which it happened or in the case of piracy, the date falling 180 days after the date it happened
.
|
|
(a) |
each of the Finance Documents
;
and
|
|
(b) |
each Charter Document.
|
|
(a) |
the proposed Transfer Date specified in the Transfer Certificate; and
|
|
(b) |
the date on which the Agent executes the Transfer Certificate
.
|
|
(a) |
the Borrower if it is resident for tax purposes in the US; or
|
|
(b) |
an Obligor 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, imposed in a member state of
the European Union in substitution for, or levied
in
addition to
,
such tax referred to in paragraph (a) above
,
or imposed elsewhere
.
|
|
(a) |
in relation to any Bail-In Legislation described
in
the
EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial
institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert
all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any
obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
|
(ii) |
any similar or analogous powers under
that
Bail-In
Legislation.
|
1.2 |
Construction
|
|
(a) |
Unless a contrary indication appears, a reference
in
any
of the Finance Documents to
:
|
|
(i) |
Sections, clauses and Schedules are to be construed as references to the Sections and clauses of, and the Schedules to, the relevant Finance Document and
references to a Finance Document include its Schedules;
|
|
(ii) |
a
Finance Document
or any other agreement or
instrument is a reference to that Finance Document or other agreement or
instrument
as
it
may from time to time be amended, restated, novated or replaced, however fundamentally;
|
|
(iii) |
words importing the plural shall include the singular and vice versa;
|
|
(iv) |
a time of day is to London time;
|
|
(v) |
any person includes its successors in title, permitted assignees or transferees
;
|
|
(vi) |
a document in agreed form means:
|
|
(A) |
where a Finance Document has already been executed by all of the relevant parties, such Finance Document in its executed form;
|
|
(B) |
prior to the execution of a Finance Document, the form of such Finance Document separately agreed in writing between the Agent and the Borrower as the form in
which that Finance Document is to be executed or another form approved at the request of the Borrower or, if not so agreed or approved, is in the form specified by the Agent;
|
|
(vii) |
approved by the Majority Lenders or approved by the Lenders
means
approved
in
writing by the Agent acting on the instructions of the Majority Lenders or, as the case may be, all of the Lenders (on
such conditions as they may respectively impose) and otherwise
approved
means approved in writing by the Agent (on such conditions
as the Agent may impose) and
approval
and
approve
shall be construed accordingly;
|
|
(vii) |
assets
includes
present and future properties
,
revenues and rights of every
description;
|
|
(ix) |
charter commitment
means, in relation to a vessel, any
charter or contract for the use, employment or operation of that vessel or the carriage of people and/or cargo or the provision of services by or from
it
and includes any agreement for pooling or sharing income derived from any such charter or contract;
|
|
(x) |
control
of an entity means
:
|
|
(A) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
|
(1) |
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 that entity; or
|
|
(2) |
appoint or remove all, or the majority, of the directors or other equivalent officers of that entity; or
|
|
(3) |
give directions with respect to the operating and financial policies of that entity with which the directors or other equivalent officers of that entity are
obliged to comply; or
|
|
(B) |
the holding beneficially of more than 50 per cent of the issued share capital of that entity (excluding any part of that issued share capital that carries no
right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over share capital shall be disregarded in determining the beneficial ownership of such share
capital);
|
|
(xi) |
the term
disposal or dispose
means a sale
,
transfer or other disposal (including by way of lease or loan but not including by way of loan of money) by a person of all or part of
its assets, whether by one transaction or a series of transactions and whether at the same time or over a period of time
,
but not the
creation of a Security Interest;
|
|
(xii) |
the
equivalent
of an amount specified in a
particular currency (the
specified currency amount
)
shall be construed as a reference to the amount of the other relevant currency which can be purchased with the specified currency amount in the London fore
i
gn exchange market at or about 11 a
.
m
.
on the date the calculation falls to be made for spot delivery
,
as
conclusively determined by the Agent (with the relevant exchange rate of any such purchase being the
Agent’s spot rate of exchange
);
|
|
(xiii) |
a
government entity
means any government, state or
agency of a state;
|
|
(xiv) |
a
group of Lenders
or a
group of Finance Parties
includes all the Lenders or (as the case may be) all the Finance Parties;
|
|
(xv) |
a
guarantee
means (other than in clause 18
(Guarantee and indemnity))
any guarantee
,
letter of credit
,
bond
,
indemnity
or similar assurance against loss
,
or any obl
i
gation
,
direct or indirect
,
actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where
,
in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;
|
|
(xvi) |
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;
|
|
(xvii) |
an
obligation
means any duty
,
obligat
i
on or l
i
ability o
f
any kind
;
|
|
(xviii) |
something being in the
ordinary course of business
of
a person means something that is in the ordinary course of that person’s current day-to-day operational business (and not merely anything which that person is entitled to do under its Constitutional Documents);
|
|
(xix) |
pay
or
repay
in
clause 28
(Business restrictions)
includes by way of set-off, combination of accounts or otherwise;
|
|
(xx) |
a
person
includes any individual, firm, company,
corporation, government entity or any assoc
i
ation
,
trust, jo
i
nt venture
,
consort
i
um, partnership or other entity (whether or not having separate legal personality)
;
|
|
(xxi) |
a
regulation
includes any regulation, rule
,
official direct
i
ve, request or
guideline (whether or not having the force of law but if not having the force of law
,
one with which a person habitually complies) of
any governmental, intergovernmental or supranational body, agency
,
department or regulatory
,
self-regulatory or other authority or organisation and, in relation to any Lender
,
includes (without limitation) any Basel II Regulation or Basel III Regulation or any law or regulation which implements Reformed Basel III
,
in each case which is applicable to that Lender;
|
|
(xxii) |
right
means any right
,
privilege
,
power or remedy
,
any proprietary interest in any asset and any other interest or remedy of any kind
,
whether actual or contingent
,
present or future, arising under contract or law, or in equity;
|
|
(xxiii) |
trustee, fiduciary
and
fiduciary duty
has in each case the meaning given to such term under applicable law;
|
|
(xxiv) |
(i) the
liquidation
,
winding up
,
dissolution
,
or administration
of
person or (ii) a
receiver or administrative receiver or administrator
in the context of insolvency proceedings or security
enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous proceedings or any equivalent and analogous person or appointee (respectively) under the law of the jurisdiction in which such
person is established or incorporated or any jurisdiction in which such person carries on business including (in respect of proceedings) the seeking or occurrences of l
i
quidation
,
winding-up, reorganisation
,
dissolution
,
admin
i
strat
i
on
,
arrangement
,
adjustment
,
protection or rel
i
ef of debtors
;
and
|
|
(xxv) |
a provision of law is a reference to that provision as amended or re-enacted
.
|
|
(b) |
The determination of the extent to which a rate is “
for a
period equal in length
”
to an Interest Per
i
od shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
|
|
(c) |
Where in this Agreement a provision includes a monetary reference level in one currency
,
unless a contrary indication appears
,
such reference level is intended to apply equally to its
equivalent in other currencies as of the relevant time for the purposes of applying such reference level to any other currencies
.
|
|
(d) |
Section
,
clause and Schedule head
i
ngs are for ease of reference only
.
|
|
(e) |
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.
|
|
(f) |
A Default is continuing if it has not been remedied or waived
.
|
1.3 |
Currency symbols and definitions
|
1.4 |
Third party rights
|
|
(a) |
Unless expressly provided to the contrary in a Finance Document for the benefit of a Finance Party or another Indemnified Person, a person who is not a party
to a Finance Document has no right under the Contracts (Rights of Third Parties) Act 1999 (the
Third Parties Act
)
to enforce or enjoy the benefit of any term of the relevant Finance Document.
|
|
(b) |
Any Finance Document may be rescinded or var
i
ed by the
part
i
es to it without the consent of any person who is not a party to
i
t (unless otherwise prov
i
ded by this Agreement)
.
|
|
(c) |
An Indemnified Person who is not a party to a Finance Document may only enforce its rights under that Finance Document through a Finance Party and if and to
the extent and in such manner as the Finance Party may determine.
|
1.5 |
Finance Documents
|
1.6 |
Conflict of documents
|
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 w
i
th
the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be 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 a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent
on its behalf) is a debt owing to that Finance Party by that Obligor.
|
|
(c) |
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents
.
|
2.3 |
Reduction of Total Commitments
|
|
(a) |
by $3,000,000 for as long as the Eco Bel Air Ship or the Eco Beverly Hills Ship is not subject to committed arrangements for its post-delivery financing in
form and substance approved by the Lenders. It is only after the Lenders confirm that they have approved any such arrangements for both these ships and only whilst such arrangements remain effective that the said $3,000
,
000 shall be available for Utilisation in accordance with this Agreement; and
|
|
(b) |
by an amount equal to any prepayment made under clause 7.7
(Mandatory
prepayment),
|
3. |
Purpose
|
3.1 |
Purpose
|
3.2 |
Refinancing
|
3.3 |
Subsequent Loans
|
3.4 |
Monitoring
|
4. |
Conditions of Utilisation
|
4.1 |
Initial conditions precedent
|
4.2 |
Conditions precedent before first Utilisation
|
4.3 |
Notice of satisfaction of conditions
|
4.4 |
Further conditions precedent
|
|
(a) |
in the case of a Rollover Loan
,
on the date of the
Utilisation Request and on the proposed Utilisation Date, no Default is continuing or would result from the proposed Loan;
|
|
(b) |
in the case of any other Utilisation
,
on the date of the
Utilisat
i
on Request and on the proposed Utilisation Date
,
no Default is continuing or would result from the proposed Utilisation;
|
|
(c) |
on the date of the f
i
rst Utilisation Request and on the
proposed Utilisat
i
on Date
,
all of
the representations set out in clause 19
(Representations)
(except the Ship Representations) are true
;
and
|
|
(d) |
where the proposed Utilisation Date is to be the first day of the Mortgage Period, the Ship Representations are true on the proposed Utilisation Date
.
|
4.5 |
Maximum number of Loans
|
4.6 |
Waiver of conditions precedent
|
5. |
Utilisation
|
5.1 |
Delivery of a Utilisation Request
|
5.2 |
Completion of a Utilisation Request
|
|
(a) |
A Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
|
(i) |
the proposed Utilisation Date is a Business Day falling on or before the Last Availability Date;
|
|
(ii) |
the currency and amount of the Utilisation comply with clause 5.3
(Currency and amount);
|
|
(iii) |
the proposed Interest Period complies with clause 10
(Interest
Periods);
and
|
|
(iv) |
it identifies the purpose for the Utilisation and that purpose complies with clause 3
(Purpose)
.
|
|
(b) |
Only one Loan may be requested in each Utilisation Request.
|
5.3 |
Currency and amount
|
|
(a) |
The currency specified in a Utilisation Request must be dollars.
|
|
(b) |
The amount of the proposed Loan must be a minimum of $500,000 or, if
less,
the amount of the Active Facility less the aggregate amount of the outstanding Loans and must not exceed (when aggregated with the outstanding Loans) the Active Facility.
|
5.4 |
Lenders’ participation
|
|
(a) |
If the conditions set out in this Agreement have been met and subject to clause 6.1
(Repayment),
each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
|
(b) |
The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately
prior to making that Loan.
|
|
(c) |
The Agent shall promptly notify each Lender of the amount of each Loan and the amount of its participation in that Loan and, if different, the amount of that
participation to be made available in accordance with clause 38.1
(Payment to the Agent),
in each case by 11:00 a.m. on the
relevant Quotation Day.
|
|
(d) |
The Agent shall pay all amounts received by it in respect of each Loan (and
its
own participation
in
it, if any) to the Borrower or for its account,
in
each case in accordance with the instructions contained in the Utilisation Request.
|
6. |
Repayment
|
6.1 |
Repayment
|
|
(a) |
The Borrower shall, subject to paragraph (c) below, repay each Loan on the last day of its Interest Period
.
|
|
(b) |
Without prejudice to the Borrower
’
s obligation under
paragraph (a) above, if one or more Loans are to be made available to the Borrower on the same day that a maturing Loan is due to be repaid by the Borrower and the proportion borne by each Lender’s participation in the maturing Loan to
the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans shall be treated as of applied in or towards repayment of the maturing Loan so that:
|
|
(i) |
if the amount of the maturing Loan exceeds the aggregate amount of the new Loans
:
|
|
(A) |
the Borrower will only be required to make a payment under clause 38.1
(Payments to the Agent)
in an amount equal to that excess;
and
|
|
(B) |
each Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that
Lender’s participation in the maturing Loan and that Lender will not be required to make a payment under clause 38.1
(Payments to the Agent)
in respect of its participation in the new Loans; and
|
|
(ii) |
if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans
:
|
|
(A) |
the Borrower will not be required to make a payment under clause 38.1
(Payments to the Agent);
and
|
|
(B) |
each Lender will be required to make a payment under clause 38.1
(Payments to the Agent)
in
respect of its participation in the new Loans only to the extent that its participation
in the new Loans exceeds that Lender’s participation in the maturing Loan and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards
repayment of that Lender
’
s participation in the maturing Loan
.
|
|
(c) |
At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be
automatically extended to the Reduction Date and will be treated as separate Loans (the
Separate Loans
).
|
|
(d) |
The Borrower may prepay that Loan by giving not less than five Business Days
’
prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as
practicable on receipt.
|
|
(e) |
Interest
in
respect of a Separate Loan will accrue for
successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent (for the account of that Defaulting Lender) on the last day of each
such Interest Period.
|
|
(f) |
The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to
(e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.
|
|
(g) |
All Loans shall be repaid in full on the Reduction Date
.
|
7. |
Illegality, prepayment and cancellation
|
7.1 |
Illegality
|
|
(a) |
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
|
(b) |
upon the Agent notifying the Borrower, the Available Commitment of that Lender will be immediately cancelled; and
|
|
(c) |
to the extent that the Lender’s participation has not been assigned pursuant to clause 7.6
(Replacement of Lender),
the Borrower shall repay that Lender’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has notified the
Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s correspond
i
ng Comm
i
tment shall be cancelled in the amount of the
participation repaid.
|
7.2 |
Voluntary cancellation
|
7.3 |
Voluntary prepayment
|
7.4 |
Right of cancellation and prepayment in relation to a single Lender
|
|
(a) |
If:
|
|
(i) |
any sum payable to any Lender by an Obligor is required to be increased under clause 13.2
(Tax gross-up);
or
|
|
(ii) |
any Lender claims indemnification from the Borrower under clause 13.3
(Tax indemnity)
or clause 14.1
(Increased costs),
|
|
(b) |
On receipt of a notice referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
|
(c) |
On the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above in relation to a Lender (or,
if
earlier
,
the date specified by the
Borrower in that notice), the Borrower shall repay that Lender’s participation in the relevant Loan together with all interest and other amounts accrued under the Finance Documents which is then owing to it.
|
7.5 |
Right of cancellation in relation to a Defaulting Lender
|
|
(a) |
If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender give the Agent 15 Business
Days’ notice of cancellation of the Available Commitment of that Lender
.
|
|
(b) |
On such notice becoming effective, the Available Commitment of the Defaulting Lender shall immediately be reduced to zero and the Agent shall as soon as
practicable after receipt of such notice, notify all the Lenders.
|
7.6 |
Replacement of Lender
|
|
(a) |
If:
|
|
(i) |
the Borrower becomes obliged to repay any amount in accordance with clause 7.1
(Illegality)
to any Lender; or
|
|
(ii) |
any of the circumstances set out in paragraph (a) of clause 7.4
(Right of cancellation and prepayment in relation to a single Lender)
apply to a Lender,
|
|
(A) |
the outstanding principal amount of such Lender’s participation in the Loan;
|
|
(B) |
all accrued interest owing to such Lender;
|
|
(C) |
the Break Costs which would have been payable to such Lender pursuant to clause 11.5
(Break Costs)
had the Borrower prepaid in full that Lender
’
s participation in the Loan on the date
of the assignment; and
|
|
(D) |
all other amounts payable to that Lender under the Finance Documents on the date of the assignment.
|
|
(b) |
The replacement of a Lender pursuant to this clause 7.6 shall be subject to the following conditions:
|
|
(i) |
the Borrower shall have no right to replace the Agent or the Security Agent;
|
|
(ii) |
neither the Agent nor any Lender shall have any obligation to find a Replacement Lender;
|
|
(iii) |
in
no event shall the Lender replaced under this clause
7.6 be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and
|
|
(iv) |
the Lender shall only be obliged to assign its rights pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary “know your
customer” or other similar checks under all applicable laws and regulations in relation to that assignment.
|
|
(c) |
A Lender shall perform the checks described in paragraph (b)(iv) above as soon as reasonably practicable following delivery of a notice referred to in
paragraph (a) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks
.
|
7.7 |
Mandatory prepayment
|
|
(a) |
Each time that the Borrower, after the date of this Agreement, raises equity capital from its shareholders (other than by means of converting any then current
Financial Indebtedness into common shares in the Borrower or preferred shares in the Borrower not paying any cash dividend) or otherwise, it shall make a prepayment of the Loans in an aggregate amount in dollars equal to the lesser of
(i) the aggregate of the Loans outstanding at the time and (ii) the higher of (A) 25 per cent of the equity capital so raised and (B) the amount by which the Family Trading Facility is reduced by the proceeds of any such equity capital
so raised.
|
|
(b) |
Each time that the Borrower, after the date of this Agreement, incurs any Financial Indebtedness (other than (i) from its shareholders, (ii) debt finance
incurred for the sole purpose of refinancing any existing indebtedness of the Group and secured by means of a mortgage over a Fleet Vessel and (iii) debt finance incurred for the purposes of clause 28.13
(Capital Expenditure))
,
it shall make a
prepayment of the Loans in an aggregate amount equal to the lesser of (i) the aggregate of the Loans outstanding at the time and (ii) the Financial Indebtedness so incurred.
|
|
(c) |
Any prepayment made in accordance with paragraphs (a) or (b) above, shall be applied pro rata against the Loans outstanding at the time.
|
7.8 |
Automatic cancellation
|
8. |
Restrictions
|
8.1 |
Notices of cancellation and prepayment
|
8.2 |
Interest and other amounts
|
8.3 |
Reborrowing
|
8.4 |
Prepayment in accordance with Agreement
|
8.5 |
No reinstatement of Commitments
|
8.6 |
Agent’s receipt of notices
|
8.7 |
Application of cancellations
|
8.8 |
Application of prepayments
|
|
(a) |
Any prepayment required as a result of a cancellation in full of an individual Lender’s Commitment under clause 7
.
1
(Illegality)
or clause 7.4
(Right of cancellation and prepayment in relation to
a
single
Lender)
shall be applied in prepaying the relevant Lender’s participation in each of the Loans
.
|
|
(b) |
Any other prepayment shall be applied pro rata to each Lender’s participation in each of the Loans.
|
8.9 |
Removal of Lender from security
|
9. |
Interest
|
9.1 |
Calculation of interest
|
|
(a) |
Margin
;
and
|
|
(b) |
LIBOR for the relevant Interest Period.
|
9.2 |
Payment of interest
|
9.3 |
Default interest
|
|
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document to a Finance Party on its due date
,
interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which
,
subject to paragraph (c) below, is 2 per cent per annum higher than the rate which would have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).
|
|
(b) |
Any
interest
accruing under this clause 9
.
3 shall be immediately payable by the Obligor on demand by the Agent.
|
|
(c) |
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan
:
|
|
(i) |
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan;
and
|
|
(ii) |
the rate of interest applying to the overdue amount during that first Interest Period shall be 2 per cent per annum higher than the rate which would have
applied if the overdue amount had not become due.
|
|
(d) |
Default interest payable under this clause 9
.
3 (if unpaid)
arising on an overdue amount will be compounded w
i
th the overdue amount at the end of each Interest Period applicable to that overdue
amount but will remain immediately due and payable.
|
9.4 |
Notification of rates of interest
|
|
(a) |
The Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.
|
|
(b) |
The Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.
|
10. |
Interest Periods
|
10.1 |
Interest Periods
|
|
(a) |
Subject to the other provisions of this clause 10, the Interest Period for a Loan shall start on its Utilisation Date and shall have a duration of three
months.
|
|
(b) |
The Interest Period for a Loan (other than the first Loan to be utilised) shall end on the last day of the then current Interest Period for the previous
Loan(s) utilised.
|
|
(c) |
No Interest Period for a Loan shall extend beyond the Reduction Date.
|
|
(d) |
A Loan has one Interest Period only
.
|
10.2 |
Non-Business Days
|
11. |
Changes to the calculation of interest
|
11.1 |
Unavailability of Screen Rate
|
|
(a) |
If no Screen Rate is available for LIBOR for an Interest Period, LIBOR shall be the Interpolated Screen Rate for a period equal in length to that Interest
Period.
|
|
(b) |
If no Screen Rate is available for LIBOR for
:
|
|
(i) |
dollars
;
or
|
|
(ii) |
the relevant Interest Period and it is not possible to calculate the Interpolated Screen Rate,
|
11.2 |
Market disruption
|
11.3 |
Cost of funds
|
|
(a) |
If this clause 11
.
3 applies, the rate of interest on each
Lender’s share of that Loan for the Interest Period shall be the percentage rate per annum which
i
s the sum of:
|
|
(i) |
the Margin;
|
|
(ii) |
the rate notified to the Agent by that Lender as soon as practicable and in any event within ten Business Days of the first day of that Interest Period (or,
if earlier
,
on the date falling ten Business Days before the date on which interest is due to be paid in respect of that Interest
Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
|
(b) |
If this clause 11
.
3 applies and the Agent or the Borrower
so require, the Agent and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
|
|
(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall
,
with the prior consent of all the Lenders and the Borrower, be binding on all Parties.
|
|
(d) |
If this clause 11
.
3 applies pursuant to clause 11
.
2
(Market disruption)
and
:
|
|
(i) |
a Lender
’
s Funding Rate is less than LIBOR; or
|
|
(ii) |
a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above
,
|
11.4 |
Notification to Borrower
|
11.5 |
Break Costs
|
|
(a) |
The Borrower shall, within five Business Days of demand by a Finance Party, pay to that Finance Party
i
ts Break Costs attributable to all or any part of a Loan or Unpaid Sum be
i
ng paid by
the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
|
|
(b) |
Each Lender shall
,
as soon as reasonably practicable
after a demand by the Agent,
provide a certificate confirming the amount and basis of calculation of its Break Costs for any Interest
Period in which they accrue
.
|
12. |
Fees
|
12.1 |
Commitment commission
|
|
(a) |
The Borrower shall pay to the Agent (for the account of each Lender) a fee in dollars computed at the rate of 2.25 per cent per annum on that Lender’s
Available Commitment calculated from the date of this Agreement (the
start date
).
|
|
(b) |
The Borrower shall pay the accrued commitment commission on the date falling three Months after the start date, on the earlier of (a) the last day of each
successive period of three Months thereafter or (b) the last day of the current Interest Period in respect of a Loan, on the Reduction Date and
,
if cancelled in full
,
on the cancelled amount of the relevant Lender’s Available Commitment at the time the cancellation is
effective.
|
|
(c) |
No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a
Defaulting Lender.
|
12.2 |
Arrangement fee
|
12.3 |
Termination fee
|
13. |
Tax gross-up and indemnities
|
13.1 |
Definitions
|
|
(a) |
In this Agreement:
|
|
(b) |
Unless a contrary indication appears, in this clause 13 a reference to
“
determines
”
or
“
determined
”
means a
determination made in the absolute discretion of the person making the determination.
|
13.2 |
Tax gross-up
|
|
(a) |
Each Obligor shall make all payments to be made by it under any Finance Document without any Tax Deduction, unless a Tax Deduction is required by law.
|
|
(b) |
The Borrower shall, promptly upon becoming aware that an Obliger must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction), notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the 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 under the relevant Finance Document 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 Obliger 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 Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing
authority.
|
13.3 |
Tax indemnity
|
|
(a) |
Each Obligor who is a Party shall (within five Business Days of demand by the Agent) 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 13.2
(Tax
gross-up);
or
|
|
(B) |
relates to a FATCA Deduction required to be made by a Party or any Obligor which is not a Party.
|
|
(c) |
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given,
rise to the claim, following which the Agent shall notify the Borrower
.
|
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this clause 13.3, notify the Agent.
|
13.4 |
Indemnities on after Tax basis
|
|
(a) |
If and to the extent that any sum payable to any Protected Party by the Borrower under any Finance Document by way of indemnity or reimbursement proves to be
insufficient, by reason of any Tax suffered thereon, for that Protected Party to discharge the corresponding liability to a third party, or to reimburse that Protected Party for the cost incurred by it in discharging the corresponding
liability to a third party, the Borrower shall pay that Protected Party such additional sum as (after taking into account any Tax suffered by that Protected Party on such additional sum) shall be required to make up the relevant
deficit.
|
|
(b) |
If and to the extent that any sum (the
Indemnity Sum
)
constituting (directly or indirectly) an indemnity to any Protected Party but paid by the Borrower to any person other than that
Protected Party, shall be treated as taxable in the hands of the Protected Party, the Borrower shall pay to that Protected Party such sum (the
Compensating Sum
)
as (after taking into account any Tax suffered by that Protected Party on the Compensating Sum)
shall reimburse that Protected Party for any Tax suffered by
it
in respect of the Indemnity Sum.
|
|
(c) |
For the purposes of paragraphs (a) and (b) above, a sum shall be deemed to be taxable in the hands of a Protected Party if it falls to be taken into account
in computing the profits or gains of that Protected Party for the purposes of Tax and, if so, that Protected Party shall be deemed to have suffered Tax on the relevant sum at the rate of Tax applicable to that Protected Party’s profits
or gains for the period in which the payment of the relevant sum falls to be taken into account for the purposes of such Tax.
|
13.5 |
Stamp taxes
|
13.6 |
Value added tax
|
|
(a) |
All amounts expressed in a Finance Document to be payable 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 to a Finance Document other than the
Recipient (the
Subject 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 Subject 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 paragraph (i) applies) promptly pay to the Subject 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 Subject 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 it 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 thereof 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 13.6 to any party shall
,
at
any time when such party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term
“
representative member
”
to have the
same meaning as in the Value Added Tax Act 1994).
|
|
(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.
|
13.7 |
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;
|
|
(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 paragraph (a)(i) 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 paragraph (a)(iii) 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 paragraphs (a)(i) or (a)(ii) 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 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 date on which any other Lender becomes a Party as a Lender, that date; or
|
|
(iii) |
where the Borrower is not a US Tax Obligor, the date of a request from the Agent,
|
|
(A) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
|
(B) |
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or
that other law or regulation
.
|
|
(f) |
The 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 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 Agent unless it is unlawful for the
Lender to do so (in which case the Lender shall promptly notify the Agent)
.
The Agent shall provide any such updated withholding
certificate, withholding statement, document, authorisation or waiver to the Borrower
.
|
|
(h) |
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraphs
(e) or (g) above without further verification
.
The Agent shall not be liable for any action taken by it under or in connection with
paragraphs (e), (f) or (g) above.
|
13.8 |
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 the Borrower and the Agent and the Agent shall notify the other Finance Parties.
|
14. |
Increased Costs
|
14.1 |
Increased costs
|
|
(a) |
Subject to clause 14
.
3
(Exceptions),
the Borrower shall, within five Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Cost
incurred by that Finance Party or any of its Affiliates which:
|
|
(i) |
arises as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii)
compliance with any law or regulation made after the date of this Agreement; and/or
|
|
(ii) |
is a Basel III Increased Cost; and/or
|
|
(iii) |
is a Reformed Basel III Increased Cost.
|
|
(b) |
In this Agreement
Increased Costs
means:
|
|
(i) |
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital
;
|
|
(ii) |
an additional or increased cost; or
|
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
14.2 |
Increased cost claims
|
|
(a) |
A Finance Party intending to make a claim pursuant to clause 14.1
(Increased costs)
shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower
.
|
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Agent and/or the Borrower through the Agent, provide a certificate confirming the
amount of its Increased Costs and the basis of calculation of such amount.
|
14.3 |
Exceptions
|
|
(a) |
Clause 14.1
(Increased costs)
does not apply to the
extent any Increased Cost is:
|
|
(i) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
|
(ii) |
attributable to a FATCA Deduction required to be made by a Party;
|
|
(iii) |
compensated for by clause 13
.
3
(Tax indemnity)
(or would have been compensated for under clause 13.3
(Tax indemnity)
but was not so compensated solely because any of the exclusions in paragraph (b) of clause 13.3
(Tax indemnity)
applied);
|
|
(iv) |
compensated for by the payment to a Lender under clause 15.10
(Mandatory Cost);
and
|
|
(v) |
attributable to the wilful breach by the relevant Finance Party or
its
Affiliates of any law or regulation.
|
|
(b) |
In paragraph (a) above, a reference to a Tax Deduction has the same meaning given to the term in clause 13.1
(Definitions).
|
15. |
Other indemnities
|
15.1 |
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; and/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
.
|
15.2 |
Other indemnities
|
|
(a) |
the occurrence of any Event of Default;
|
|
(b) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any and all Losses arising as a result
of clause 37
(Sharing among the Finance Parties)
;
|
|
(c) |
funding
,
or making arrangements to fund
,
its participation in a Utilisation requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one
or more of the provisions of th
i
s Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
|
(d) |
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower
.
|
15.3 |
Indemnity to the Agent and the Security Agent
|
|
(a) |
any and all Losses (together with a
n
y applicable VAT)
incurred by the Agent or the Security Agent (act
i
ng reasonably) as a result of
:
|
|
(i) |
investigating any event which it reasonably believes is a Default
;
|
|
(ii) |
acting or relying on any notice
,
request or instruction
which it reasonably believes to be genuine
,
correct and appropriately authorised;
|
|
(iii) |
instructing lawyers, accountants, tax advisers
,
insurance
consultants, ship managers, valuers, surveyors or other professional advisers or experts as permitted under the Finance Documents; or
|
|
(iv) |
any action taken by the Agent or the Security Agent or any of its or their representatives, agents or contractors in connection with any powers conferred by
any Security Document to remedy any breach of any Obligor
’
s obligations under the Finance Documents, and
|
|
(b) |
any and all Losses (including, without limitation,
in
respect of liability for negligence or any other category of liability whatsoever) (together with any applicable VAT) incurred by the Agent or the Security Agent (otherwise than by reason of the Agent’s or the Security Agent’s gross
negligence or wilful misconduct) (or
,
in the case of any cost
,
loss or liability pursuant to clause 38
.
11
(Disruption to payment systems etc.)
notwithstanding the Agent’s or the Security Agent’s negligence, gross negligence or any other category of liability whatsoever but not including
any claim based on the fraud of the Agent in acting as Agent or the Security Agent under the Finance Documents
.
|
15.4 |
Indemnity concerning security
|
|
(a) |
The Borrower shall (or shall procure that another Obligor will) promptly indemnify each Indemnified Person against any and all Losses (together with any appl
i
cable VAT) incurred by it as a result of:
|
|
(i) |
any failure by the Borrower to comply with
i
ts
obligations under clause 17
(Costs and expenses)
or any similar provision in any other Finance Document;
|
|
(ii) |
acting or relying on any notice
,
request or instruction
which it reasonably believes to be genuine
,
correct and appropriately authorised
;
|
|
(iii) |
the taking
,
holding, protection or enforcement of the
Transaction Security
;
|
|
(iv) |
the exercise or purported exercise of any of the rights, powers
,
discretions, authorities and remedies vested in the Security Agent and/or any other Finance Party and each Receiver and each Delegate by the Finance Documents or by law (otherwise
,
in each case
,
than by reason of the relevant Security Agent’s and/or
|
|
(v) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
|
(vi) |
any claim (whether relating to the environment or otherwise) made or asserted against the Indemnified Person which would not have arisen but for the execution
or enforcement of one or more Finance Documents (unless and to the extent it is caused by the gross negligence or wilful misconduct of that Indemnified Person);
|
|
(vii) |
instructing lawyers, accountants
,
tax advisers, insurance
consultants, ship managers
,
valuers, surveyors or other professional advisers or experts as permitted under the Finance Documents; or
|
|
(viii) |
(in the case of the Security Agent and/or any other Finance Party, any Receiver and any Delegate) acting as Security Agent and/or as holder of any of the
Transaction Security, Receiver or Delegate under the Finance Documents or which otherwise relates to the Charged Property (otherwise,
in
each
case, than by reason of the relevant Security Agent’s and/or other Finance Party
’
s, Receiver
’
s or Delegate’s gross negligence or wilful misconduct).
|
|
(b) |
The Security Agent may
,
in priority to any payment to the
other Finance Parties
,
indemnify
itself
out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this clause 15.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the
Transaction Security for all moneys payable to it.
|
15.5 |
Continuation of indemnities
|
15.6 |
Third Parties Act
|
|
(a) |
Each Indemnified Person may rely on the terms of clause 15.4
(Indemnity
concerning security)
and clauses 13
(Tax gross-up and
indemnities)
and 15.7
(Interest)
insofar as it relates to interest
on, or the calculation of, any amount demanded by that Indemnified Person under clause 15.4
(Indemnity concerning security),
subject
to clause 1.4
(Third party rights)
and the provisions of the Third Parties Act.
|
|
(b) |
Where an Indemnified Person (other than a Finance Party) (the
Relevant
Beneficiary
)
who is:
|
|
(i) |
appointed by a Finance Party under the Finance Documents;
|
|
(ii) |
an officer, director, employee, adviser, representative or agent of any of the above persons or that Finance Party,
|
|
(A) |
the Borrower shall at the same time as the relevant Third Party Claim is due to the Relevant Beneficiary pay to that Finance Party a sum in the amount of that
Third Party Claim;
|
|
(B) |
payment of such sum to that Finance Party shall, to the extent of that payment, satisfy the corresponding obligations of the Borrower to pay the Third Party
Claim to the Relevant Beneficiary; and
|
|
(C) |
if the Borrower pays the Third Party Claim direct to the Relevant Beneficiary, such payment shall, to the extent of that payment, satisfy the corresponding
obligations of the Borrower to that Finance Party under sub-paragraph (A) above.
|
15.7 |
Interest
|
15.8 |
Exclusion of liability
|
15.9 |
Sanctions
|
|
(a) |
Each Obligor shall, within five Business Days of demand by a Finance Party, indemnify such Finance Party against any cost, loss or liability incurred by it as
a result of any civil penalty or fine against, and all costs and expenses (including counsel fees and disbursements) incurred in connection with the defence thereof by, the Agent or the relevant Finance Party as a result of conduct of
any Obligor or any of its partners, directors, officers, employees, agents or advisors, that violates any applicable Sanctions.
|
|
(b) |
The indemnity in clause 15.9(a) shall cover any Losses incurred by each Finance Party in any jurisdiction arising or asserted under or in connection with any
law relating to any applicable Sanctions.
|
15.10 |
Mandatory Cost
|
|
(a) |
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the
same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
|
(b) |
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other
requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other
governmental authority or agency which replaces all or any of their functions),
|
16. |
Mitigation by the Lenders
|
16.1 |
Mitigation
|
|
(a) |
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in the
Facility ceasing to be available or any amount becoming payable under or pursuant to
,
or cancelled pursuant to
,
any of clause 7
.
1
(Illegality),
clause 13
(Tax gross-up and indemnities),
clause
14
(Increased costs)
or clause 15
.
10
(Mandatory Cost)
including (but not limited to) assigning its rights under the Finance Documents to another Affiliate or Facility
Office.
|
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
16.2 |
Limitation of liability
|
|
(a) |
The Borrower shall promptly indemnify each Finance Party for all costs and expenses incurred by that Finance Party as a result of steps taken by it under
clause 16.1
(Mitigation)
.
|
|
(b) |
A Finance Party is not obliged to take any steps under clause 16
.
1
(Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
17. |
Costs and expenses
|
17.1 |
Transaction expenses
|
|
(a) |
this Agreement and any other documents referred to in this Agreement and the Security Documents;
|
|
(b) |
any other Finance Documents executed or proposed to be executed after the date of this Agreement
;
or
|
|
(c) |
any Security Interest expressed or intended to be granted by a Finance Document.
|
17.2 |
Amendment costs
|
|
(a) |
an Obligor requests an amendment, waiver or consent; or
|
|
(b) |
an amendment is required pursuant to clause 38.10
(Change of
currency)
,
|
17.3 |
Enforcement, preservation and other costs
|
|
(a) |
the enforcement of, or the preservation of any rights under
,
any
Finance Document and the Transaction Security and any proceedings instituted by or against any Indemnified Person as a consequence of taking or holding the Security Documents or enforcing those rights; or
|
|
(b) |
any inspection carried out under clause 24.9
(Inspection and
notice of dry-docking)
or any survey carried out under clause 24
.
17
(Survey report)
at the times provided under each such clause that the relevant costs must be borne by the Borrower
.
|
18. |
Guarantee and indemnity
|
18.1 |
Guarantee and indemnity
|
|
(a) |
guarantees
to
the Security Agent (as trustee for the
Finance Parties) and the other Finance Parties punctual performance by each other Obligor of all such Obligor’s obligations under the Finance Documents;
|
|
(b) |
undertakes with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties that whenever another Obligor (other than the Charterer)
does not pay any amount when due under or in connection with any Finance Document, it shall immediately on demand pay that amount as if it was the principal obligor; and
|
|
(c) |
agrees with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties 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 another Obligor (other than the Charterer) not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by such
Obligor 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 the Guarantor would have had to pay under this clause 18.1 if the amount
claimed had been recoverable on the basis of a guarantee.
|
18.2 |
Continuing guarantee
|
18.3 |
Reinstatement
|
18.4 |
Waiver of defences
|
|
(a) |
any
time,
waiver or consent granted to, or composition
with, any Obligor or other person;
|
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any other Obligor;
|
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over
assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other
|
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an 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
.
|
18.5 |
Guarantor’s intent
|
18.6 |
Immediate recourse
|
18.7 |
Appropriations
|
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance 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 in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor’s liability under this clause 18.
|
18.8 |
Deferral of Guarantor’s rights
|
|
(a) |
Until all amounts which may be or become payable by the Obligors (other than the Charterer) under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Agent otherwise directs, the Guarantor will not exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being
payable, or liability arising, under this clause 18:
|
|
(i) |
to be indemnified by another Obliger;
|
|
(ii) |
to claim any contribution from any other guarantor of any Obliger’s obligations under the Finance Documents;
|
|
(iii) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or
of any other guarantee or security taken pursuant to, or
in
connection with, the Finance Documents by any Finance Party;
|
|
(iv) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has
given a guarantee, undertaking or indemnity under this clause 18;
|
|
(v) |
to exercise any right of set-off against any other Obligor; and/or
|
|
(vi) |
to claim or prove as a creditor of any other Obligor in competition with any Finance Party
.
|
|
(b) |
If the Guarantor receives any benefit, payment or distribution in relation to such rights it will promptly pay an equal amount to the Agent for application in
accordance with clause 38
(Payment mechanics).
This only applies until all amounts which may be or become payable by the Obligors
under or in connection with the Finance Documents have been irrevocably paid in full.
|
18.9 |
Additional security
|
19. |
Representations
|
19.1 |
Status
|
|
(a) |
Each Obligor is a corporation, duly incorporated and validly existing under the law of its Original Jurisdiction.
|
|
(b) |
Each Obligor has power and authority to own its assets and to carry on its business as it is now being conducted within the scope of its purpose.
|
19.2 |
Binding obligations
|
|
(a) |
the obl
i
gations expressed to be assumed by each Obligor in
each Transaction Document to which it is, or is to be, a party are or, when entered into by it, will be legal, valid, binding and enforceable obligations; and
|
|
(b) |
(without limiting the generality of paragraph (a) above) each Security Document to which an Obligor is
,
or will be
,
a party, creates or will create the Security Interests which that
Security Document purports to create and those Security Interests are or will be valid and effective.
|
19.3 |
Non-conflict
|
|
(a) |
any law or regulation applicable to any Obligor;
|
|
(b) |
the Constitutional Documents of any Obligor; or
|
|
(c) |
any agreement or other instrument binding upon any Obligor or its assets,
|
19.4 |
Power and authority
|
|
(a) |
Each Obligor has the power to enter into
,
perform and
deliver and comply with its obligations under
,
and has taken all necessary actions to authorise its entry into, performance and
delivery of, and compliance with, each Transaction Document to which it is, or is to be, a party and each of the transactions contemplated by those documents
.
|
|
(b) |
No limitation on any Obligor
’
s powers to borrow
,
create security or give guarantees will be exceeded as a result of any transaction under, or the entry into of, any Transaction Document
to which such Obligor is, or is to be, a party.
|
19.5 |
Validity and admissibility in evidence
|
|
(a) |
All Authorisations required
:
|
|
(i) |
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations under each Transaction Document to which it is a party;
|
|
(ii) |
to make each Transaction Document to which it is a party admissible in evidence in its Relevant Jurisdictions
;
and
|
|
(iii) |
to ensure that the Transaction Security has the priority and ranking contemplated in the Security Documents,
|
|
(b) |
All Authorisations necessary for the conduct of the business, trade and ordinary activities of each Obligor have been obtained or effected and are in full
force and effect, if failure to obtain or effect those Authorisations is reasonably likely to have a Material Adverse Effect.
|
19.6 |
Governing law and enforcement
|
|
(a) |
The choice of governing law of any Transaction Document will be recognised and enforced in each Obligor
’
s Relevant Jurisdictions
.
|
|
(b) |
Any judgment obtained in relation to any Transaction Document in the jurisdiction of the governing law of that Transaction Document will be recognised and
enforced in the relevant Obligor’s Relevant Jurisdictions.
|
19.7 |
No misleading information
|
|
(a) |
Any factual information contained in the Information Package is true and accurate in all material respects as at the date of the relevant report or document
containing the information or (as the case may be) as at the date the information is expressed to be given
.
|
|
(b) |
Any financial projection or forecast contained in the Information Package has been prepared on the basis of recent historical information and on the basis of
reasonable assumptions and was fair (as at the date of the relevant report or document containing the projection or forecast) and arrived at after careful consideration.
|
|
(c) |
The expressions of opinion or intention provided by or on behalf of an Obligor for the purposes of the Information Package were made after careful
consideration and (as at the date of the relevant report or document containing the expression of opinion or intention) were fair and based on reasonable grounds
.
|
|
(d) |
No event or circumstance has occurred or arisen and no information has been omitted from the Information Package and no information has been given or withheld
that results in the information, opinions, intentions, forecasts or projections contained in the Information Package being untrue or misleading in any material respect.
|
|
(e) |
For the purposes of this clause 19.7,
Information Package
means
any information provided by any Obligor to any of the Finance Parties in connection with the Transaction Documents or the transactions referred to in them.
|
19.8 |
Pari passu ranking
|
19.9 |
Ranking and effectiveness of security
|
|
(a) |
the Transaction Security has (or will have when the relevant Security Documents have been executed) the priority which it is expressed to have in the Security
Documents;
|
|
(b) |
the Charged Property is not subject to any Security Interest other than Permitted Security Interests; and
|
|
(c) |
the Transaction Security will constitute perfected security on the assets described in the Security Documents.
|
19.10 |
Centre of main interests and establishments
|
19.11 |
Ownership of Charged Property
|
19.12 |
No insolvency
|
19.13 |
No filing or stamp taxes
|
19.14 |
Deduction of Tax
|
19.15 |
Tax compliance
|
|
(a) |
No Obligor (other than the Charterer) is materially overdue
in
the
filing of any Tax returns or overdue in the payment of any amount in respect of Tax exceeding $500,000 (or its equivalent in any other currency).
|
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against any Obligor (other than the Charterer) with respect to Taxes
such that a liability of, or claim against, any Obligor (other than the Charterer) is reasonably likely to arise for an amount for which adequate reserves have not been provided and which are reasonably expected to have a Material
Adverse Effect.
|
|
(c) |
Each Obligor (other than the Charterer) is resident for Tax purposes only in its Original Jurisdiction
.
|
19.16 |
Other Tax matters
|
19.17 |
Pension exposure
|
19.18 |
No Default
|
|
(a) |
No Default
is
continuing or is reasonably expected to
result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
|
(b) |
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination
or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on any Obligor or to which any Obligor’s assets are subject which
is likely to have a Material Adverse Effect.
|
19.19 |
No proceedings
|
|
(a) |
Except as advised in writing to the Agent prior to the date of this Agreement,
no litigation
,
arbitration or administrative proceedings or investigations of, or before, any court,
arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of any Obligor’s knowledge and belief (having made due and careful enquiry)) been started or
threatened against any 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 is reasonably
likely to have a Material Adverse Effect has (to the best of any Obliger’s knowledge and belief (having made due and careful enquiry)) been made against any Obligor or any other Group Member
.
|
19.20 |
No breach of laws
|
|
(a) |
No Obligor or other Group Member has breached any law or regulation.
|
|
(b) |
No labour dispute is current or, to the best of any Obligor’s knowledge and belief (having made due and careful enquiry), threatened against any Obligor or
other Group Member which is reasonably expected to have a Material Adverse Effect.
|
19.21 |
Anti-corruption law
|
19.22 |
Security and Financial Indebtedness
|
|
(a) |
No Security Interest exists over all or any of the present or future assets of any Obligor in breach of this Agreement.
|
|
(b) |
No Obligor has any Financial Indebtedness outstanding in breach of this Agreement.
|
19.23 |
Shares
|
|
(a) |
The shares of the Guarantor are fully paid and not subject to any option to purchase or similar rights.
|
|
(b) |
The Constitutional Documents of the Guarantor do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Security
Documents.
|
|
(c) |
There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share
or loan capital of the Guarantor (including any option or right of pre-emption or conversion).
|
19.24 |
Ownership of Guarantor
|
19.25 |
Listing
|
19.26 |
Accounting Reference Date
|
19.27 |
No adverse consequences
|
|
(a) |
It is not necessary under the laws of the Relevant Jurisdictions of any Obligor:
|
|
(i) |
in order to enable any Finance Party to enforce its rights under any Finance Document to which it is, or is to be, a party; or
|
|
(ii) |
by reason of the execution of any Finance Document or the performance by any Obligor of its obligations under any Finance Document,
|
|
(b) |
No Finance Party is or will be deemed to be resident, domiciled or carrying on business in any Relevant Jurisdiction of any Obligor by reason only of the
execution, performance and/or enforcement of any Finance Document.
|
19.28 |
Copies of documents
|
19.29 |
No breach, etc of any shipbuilding contract or related refund guarantee
|
|
(a) |
No Group Member nor (so far as the Obligors are aware) any other person is in breach of any shipbuilding contract to which it is a party nor has anything
occurred which entitles or may entitle any party to rescind or terminate it or decline to perform their obligations under it or which would render it illegal, invalid or unenforceable.
|
|
(b) |
No dispute has occurred under any shipbuilding contract relating to the construction of any vessel of any Group Member or any Obligor’s Affiliate by the
relevant Builder or under any refund guarantee issued
in
respect of the obligations of the relevant Builder under that shipbuilding
contract.
|
19.30 |
No immunity
|
19.31 |
Address commission
|
19.32 |
Sanctions
|
|
(a) |
No Obligor, nor any of its Affiliates nor any of their respective directors, officers, employees
,
agents or representatives
:
|
|
(i) |
has breached any Sanctions;
|
|
(ii) |
is a Restricted Person; or
|
|
(iii) |
has received notice of or is aware of any claim, action, suit
,
proceeding
or investigation against it with respect to Sanctions.
|
|
(b) |
No proceeds of the Loan:
|
|
(i) |
shall be made available, directly or indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or indirectly, applied in a
manner or for a purpose prohibited by applicable Sanctions; or
|
|
(ii) |
will be used by any Obliger:
|
|
(A) |
to finance equipment or sectors under embargo decisions of the United Nations or the World Bank; or
|
|
(B) |
in breach of the provisions of any Sanctions
.
|
19.33 |
No Money Laundering
|
19.34 |
Environmental matters
|
|
(a) |
No Environmental Law app
l
icable to any Fleet Vessel and/or
any Obligor or other Group Member has been violated.
|
|
(b) |
All consents, licences and approvals required under such Environmental Laws have been obtained and are currently in force
.
|
|
(c) |
No Environmental Claim has been made or
,
to the best of
any Obligor
‘
s knowledge and belief (having made due and careful enquiry), is threatened or pending against any Obligor or other Group
Member or any Fleet Vessel where that claim might have a Material Adverse Effect and there has been no Environmental Incident which has given, or is reasonably expected to give, rise to such a claim
.
|
19.35 |
No breach of any Charter Document
|
19.36 |
Collateral Ship status
|
|
(a) |
registered in the name of the Guarantor through the relevant Registry as a ship under the laws and flag of the relevant Flag State;
|
|
(b) |
operationally seaworthy and in every way fit for service;
|
|
(c) |
classed with the relevant Classification free of all requirements and recommendations of the relevant Classification Society; and
|
|
(d) |
insured in the manner required by the Finance Documents
.
|
19.37 |
Collateral Ship’s employment
|
|
(a) |
have been delivered, and accepted for service
,
under the
relevant Charter
;
and
|
|
(b) |
save for the relevant Charter, be free of any other charter commitment which, if entered into after that date, would require approval under the Finance
Documents
.
|
19.38 |
Times when representations are made
|
|
(a) |
All of the representations and warranties set out in this clause 19 are deemed to be made on the dates of:
|
|
(i) |
this Agreement;
|
|
(ii) |
the first Utilisation Request; and
|
|
(iii) |
the first Utilisation.
|
|
(b) |
The Repeating Representations are deemed to be made on the dates of each subsequent Utilisation Request and each subsequent Utilisation Date and the first day
of each Interest Period.
|
|
(c) |
Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances
existing at the date the representation or warranty is deemed to be made.
|
20. |
Information undertakings
|
20.1 |
Undertaking to comply
|
20.2 |
Definitions
|
20.3 |
Financial statements
|
|
(a) |
The Borrower shall supply to the Agent as soon as the same become available, but in any event within 120 days after the end of each Financial Year (but
commencing with the Financial Year ending 31 December 2018) the audited consolidated financial statements of the Borrower for that Financial Year.
|
|
(b) |
The Borrower shall supply to the Agent as soon as the same become available, but in any event within 90 days after the end of the first financial half-year of
each of its Financial Years (but commencing with the financial half-year ending 30 June 2019):
|
|
(i) |
the unaudited (or audited if available) financial statements of the Borrower for that financial half-year; and
|
|
(ii) |
the unaudited (or audited if available) consolidated financial statements of the Borrower for that financial half-year.
|
20.4 |
Provision and contents of Compliance Certificate
|
|
(a) |
The Borrower shall supply a Compliance Certificate to the Agent with each set of Annual Financial Statements and each set of Semi-Annual Financial Statements,
in each case, delivered pursuant to clause 20.3
(Financial statements).
|
|
(b) |
Each Compliance Certificate shall set out (in reasonable detail) computations as to compliance with clause 21
(Financial covenants).
|
|
(c) |
Each Compliance Certificate shall be signed by a duly authorised signatory of the Borrower.
|
20.5 |
Requirements as to financial statements
|
|
(a) |
The Borrower shall procure that each set of Annual Financial Statements and Semi-annual Financial Statements includes a profit and loss account, a balance
sheet and a
|
|
(b) |
Each set of financial statements delivered pursuant to clause 20
.
3
(Financial statements)
shall:
|
|
(i) |
be prepared in accordance with GAAP; and
|
|
(ii) |
fairly present, and be certified by a director of the relevant company as fairly presenting, its financial condition and operations as at the date as at which
those financial statements were drawn up and, in the case of the Annual Financial Statements, shall be accompanied by any letter addressed to the management of the relevant company by the Auditors and accompanying those Annual Financial
Statements; and
|
|
(iii) |
in the case of Annual Financial Statements, not be the subject of any qualification in the Auditors’ opinion.
|
20.6 |
Year-end
|
20.7 |
Information: miscellaneous
|
|
(a) |
whilst an Event of Default is continuing and as soon as practicable after the time when they are dispatched, copies of all documents dispatched by any Obligor
to its creditors generally (or any class of them);
|
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending
against any Obligor or other Group Member, and which
,
if adversely determined, might 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 Obligor or other Group Member and which is reasonably likely to have a Material Adverse Effect;
|
|
(d) |
promptly upon becoming aware of them, the details of any claim, action, suit, proceeding or investigation with respect to Sanctions against any Obligor or any
of
its
Affiliates or any of its directors, officers, employees, agents or representatives;
|
|
(e) |
promptly, such information as the Agent or the Security Agent may reasonably require about the Charged Property and compliance of the Obligors with the terms
of any Security Documents; and
|
|
(f) |
promptly on request, such further information regarding the financial condition, assets and operations of any Obligor as any Finance Party through the Agent
may reasonably request,
|
20.8 |
Notification of Default
|
|
(a) |
The Borrower shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon any Obligor 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 Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors 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)
.
|
20.9 |
Sufficient copies
|
20.10 |
“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 an Obligor or the compos
i
tion
of the shareholders of an Obligor after the date of this Agreement; or
|
|
(iii) |
a proposed assignment by a Lender of any of its rights under this Agreement to a party that is not already a Lender prior to such assignment,
|
|
(b) |
Each Finance Party shall, promptly upon the request of the Agent or the Security Agent, supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Agent or the Security Agent (for itself) in order for it to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws
and regulations pursuant to the transactions contemplated in the Finance Documents.
|
21. |
Financial covenants
|
21.1 |
Financial definitions
|
|
(a) |
cash in hand or on deposit with any bank; and
|
|
(b) |
any other instrument, security or investment approved by the Majority Lenders,
|
|
(a) |
Fleet Vessels; and
|
|
(b) |
JV Vessels, as adjusted to reflect the relevant ownership percentage in such JV Vessels of the relevant Group Member,
|
|
(a) |
the Group’s liabilities in respect of principal under any Financial Indebtedness (provided however that any principal under any Financial Indebtedness
incurred
only by the Borrower which is not secured by security provided over an asset of the Group, shall not be taken into account); and
|
|
(b) |
all liabilities of all Joint Ventures in respect of principal under any Financial Indebtedness secured by security provided over a JV Vessel, each such
liability adjusted to reflect the relevant Group Member’s ownership percentage in such JV Vessel.
|
21.2 |
Financial condition
|
|
(a) |
Leverage ratio:
the ratio of Total Net Debt to Fleet
Market Value shall, at all times during and in respect of each Measurement Period, be not higher than 0.75:1.00.
|
|
(b) |
Minimum liquidity
:
at all times the Cash and Cash Equivalents shall not be less than the aggregate of:
|
|
(i) |
$750,000 multiplied by the number of the Fleet Vessels; and
|
|
(ii) |
$500,000 multiplied by the number of the Chartered Vessels.
|
21.3 |
Financial testing
|
22. |
General undertakings
|
22.1 |
Undertaking to comply
|
22.2 |
Use of proceeds
|
22.3 |
Authorisations
|
|
(a) |
obtain, comply with and do all that is necessary to maintain
i
n
full force and effect; and
|
|
(b) |
supply certified copies to the Agent of,
|
|
(i) |
enable it to perform its obligations under the Transaction Documents
;
|
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence of any Transaction Document; and
|
|
(iii) |
carry on its business where failure to do so has, or
i
s
reasonably likely to have
,
a Material Adverse Effect.
|
22.4 |
Compliance with laws
|
22.5 |
Anti-corruption law
|
|
(a) |
No Obligor shall (and shall ensure that no other Group Member will) directly or indirectly use the proceeds of the Facility for any purpose which would breach
the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions.
|
|
(b) |
Each Obligor shall
:
|
|
(i) |
conduct its businesses in compliance with applicable anti-corruption laws; and
|
|
(ii) |
maintain policies and procedures designed to promote and achieve compliance with such laws
.
|
22.6 |
Bribery and corruption
|
|
(a) |
No Obligor nor any of its agents, employees, directors or officers has engaged or shall engage (and shall ensure that none of its Affiliates nor any of
its
agents
,
employees
,
directors or officers has engaged or will engage) in any Relevant Jurisdiction in:
|
|
(i) |
Corrupt Practices, Fraudulent Practices, Collusive Practices or Coercive Practices, including the procurement or the execution of any contract for goods or
works relating to its functions;
|
|
(ii) |
Money Laundering or acted in breach of any applicable law relating to Money Laundering; or
|
|
(iii) |
the Financing of Terrorism
.
|
|
(b) |
Without prejudice to the generality of clause 22
.
6(a):
|
|
(i) |
No Obligor nor any of its agents, employees, directors or officers will (and shall ensure that none of its Affiliates nor any of its agents, employees,
directors or officers will) directly or indirectly use the proceeds of the Facility for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other
jurisdictions;
|
|
(ii) |
each Obligor shall (and shall ensure that each of
its
Affiliates)
and any of their agents, employees
,
directors or officers
:
|
|
(A) |
conducts its businesses in compliance with the Bribery Act 2010 and the United States Foreign Corrupt Practices Act of 1977; and
|
|
(B) |
maintains policies and procedures designed to promote and achieve compliance with such laws.
|
|
(c) |
For the purposes of this clause 22.6 and clause 19.33
(No
Money Laundering),
the following definitions shall apply:
|
|
(i) |
the conversion or transfer of property
,
knowing it
i
s der
i
ved from a crim
i
nal offence
,
for the purpose of
concealing or disguising its illegal origin or of assisting any person who is involved in the commission of the crime to evade the legal consequences of its actions;
|
|
(ii) |
the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property knowing that it is
derived from a criminal offence
;
or
|
|
(iii) |
the acquisition, possession or use of property knowing at the time of its receipt that
i
t is derived from a criminal offence.
|
22.7 |
Tax compliance
|
|
(a) |
Each Obliger (other than the Charterer) shall (and shall ensure that each other Group Member will) pay and discharge all Taxes imposed upon it or its assets
within the time period allowed without incurring penalties in excess of $500
,
000 (or its equivalent in any other currency) in aggregate,
unless and only to the extent that:
|
|
(i) |
such payment is being contested in good faith;
|
|
(ii) |
adequate reserves are being maintained for those Taxes and the costs requ
i
red to contest them which have been d
i
sclosed in its latest financial statements delivered to the Agent under clause
20
.
3
(Financial statements);
and
|
|
(iii) |
such payment can be lawfully withheld
.
|
|
(b) |
Except as approved by the Majority Lenders, each Obligor (other than the Charterer) shall maintain its residence for Tax purposes in its Original Jurisdiction
and ensure that it is not resident for Tax purposes in any other jurisdiction.
|
22.8 |
Change of business
|
22.9 |
Merger
|
22.10 |
Pension exposure
|
22.11 |
Further assurance
|
|
(a) |
Each Obligor shall promptly do all such acts or execute all such documents (including assignments
,
transfers, mortgages
,
charges
,
notices and instructions) as the Agent may reasonably specify (and in such form as the Agent or the Security Agent may reasonably require in favour of the Security Agent or its nominee(s))
:
|
|
(i) |
to perfect the Security Interests created or intended to be created by that Obligor under
,
or ev
i
denced by, the Security 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
i
ntended to be
,
the subject of the Security Documents) or for the exercise of any rights, powers and remedies of the Security Agent and/or any other Finance Parties provided by or pursuant to the Finance Documents or by
law;
|
|
(ii) |
to confer on the Security Agent and/or any other Finance Parties Security Interests 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 Security Documents;
|
|
(iii) |
to facilitate the realisation of the assets which are
,
or
are intended to be
,
the subject of the Secur
i
ty Documents
;
and/or
|
|
(iv) |
to facilitate the accession by a New Lender to any Security Document following an assignment in accordance with clause 30.1
(Assignments by the Lenders).
|
|
(b) |
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 Agent
and/or any other Finance Parties by or pursuant to the Finance Documents
.
|
22.12 |
Negative pledge in respect of Charged Property and Obligor shares
|
22.13 |
Sanctions
|
|
(a) |
Each Obligor shall, and shall procure that any Affiliate of each Obliger shall, ensure that none of the
i
r respect
i
ve directors, off
i
cers
,
agents
,
employees or persons acting on behalf of the forego
i
ng
,
is a Restricted Person or acts d
i
rectly or indirect
l
y on behalf of a Restricted Person
.
|
|
(b) |
No Obligor shall
,
and shall procure that none of its
Affiliates shall
,
use any revenue or benefit derived from any activity or dealing with a Restricted Person in discharging any
obligation due or owing to the Finance Parties
.
|
|
(c) |
Each Obligor shall not
,
and shall procure that each of
its Affiliates will not
,
credit proceeds from any activity or dealing with a Restricted Person to any bank account held with any
Finance Party in its name or in the name of any other person
.
|
|
(d) |
Each Obligor shall
,
and shall ensure that each of its
Affiliates take measures to ensure compliance with Sanctions.
|
|
(e) |
Each Obligor shall, and shall procure that each of its Affiliates shall, to the extent permitted by law, promptly upon becoming aware of them, supply to the
Agent details of any claim
,
action, suit, proceedings or investigation against it with respect to Sanctions by any Sanct
i
ons Authority
.
|
|
(f) |
Without prejudice to this clause 22
.
13 and clause 29
.
20
(Sanctions),
each Obligor
shall
,
and shall procure that each of its Affiliates and the Collateral Ship shall, not do any business relating to Iran or any Iranian
owned or incorporated, unless the Agent approves so in writing
.
|
22.14 |
Environmental matters
|
|
(a) |
The Agent will be notified as soon as reasonably practicable of any Environmental Claim being made against any Obligor or other Group Member or any Fleet
Vessel which, if successful to any extent
,
is reasonably expected to have a Material Adverse Effect and of any Environmental Incident
wh
i
ch may give rise to such a claim and will be kept regularly and promptly informed in reasonable detail of the nature of
,
and response to, any such Environmental Incident and the defence to any such claim.
|
|
(b) |
Environmental Laws (and any consents, licences or approvals obtained under them) applicable to Fleet Vessels will not be violated.
|
23. |
Dealings with Collateral Ship
|
23.1 |
Undertaking to comply
|
23.2 |
Sale or other disposal of Collateral Ship
|
23.3 |
Chartering
|
|
(a) |
a bareboat or demise charter or passes possession and operational control of the Collateral Ship to another person;
|
|
(b) |
of a fixed duration exceeding 13 calendar months;
|
|
(c) |
on terms as to payment or amount of hire which are materially less beneficial to it than the terms which at that time could reasonably be expected to be
obtained on the open market for vessels of the same age and type as the Collateral Ship under charter commitments of a similar type and period
;
or
|
|
(d) |
to another Obligor or Group Member
.
|
|
(e) |
Further
,
without pre
j
ud
i
ce to the r
i
ghts of the F
i
nance Parties under the provisions of this clause 23
.
3 and any other prov
i
sions of the F
i
nance Documents
,
the Guarantor shall
advise the Agent promptly of any proposed charter comm
i
tment in respect of the Collateral Ship of a fixed duration exceeding 13 calendar
months
,
and
:
|
|
(i) |
deliver a copy of each such charter commitment to the Agent forthwith after it has been entered into;
|
|
(ii) |
forthwith following a demand made by the Agent (acting on the instructions of the Majority Lenders):
|
|
(A) |
execute a charter assignment in the form similar to the relevant Charter Assignment of any such charter commitment in favour of the Security Agent and any
notice of assignment required in connection therewith; and
|
|
(B) |
procure the service of any such notice of assignment on the relevant charterer and, unless expressly freely assignable, the acknowledgement of such notice by
the relevant charterer
;
|
|
(iii) |
deliver to the Agent such documents and evidence of the type referred to in Schedule 3
(Conditions precedent)
of the Post-Delivery Facility Agreement, in relation to any such charter assignment or any other related matter referred to in this clause 23.3(e) as the Agent (acting on the
instructions of the Majority Lenders in their sole discretion) shall require; and
|
|
(iv) |
pay on the Agent’s demand all documented legal costs and other costs incurred by the Agent and/or any other Finance Party in connection with or in relation to
any such charter assignment or any other related matter referred to in this clause 23.3(e)
.
|
23.4 |
Sharing of Earnings
|
23.5 |
Payment of Earnings
|
|
(a) |
The Guarantor
’
s Earnings from the Collateral Ship shall be
paid in the way required by the General Assignment.
|
|
(b) |
If any Earnings in respect of the Collateral Ship are held by brokers or other agents, they shall be paid to the Security Agent, if it requires this after the
Earnings have become payable to it under the General Assignment.
|
23.6 |
Evidence of payments
|
23.7 |
Collateral Ship’s name and registration
|
|
(a) |
The Collateral Ship’s name shall only be changed with the prior written consent of the Agent.
|
|
(b) |
The Collateral Ship shall be registered with the relevant Registry under the laws of its Flag State
.
Except with approval, the Collateral Ship shall not be registered under any other flag or at any other port or fly any other flag (other than that of its Flag State). If that
registration is for a limited period, it shall be renewed at least 45 days before the date it is due to expire and the Agent shall be notified of that renewal at least 30 days before that date
.
|
|
(c) |
Nothing will be done and no action will be omitted if that might result in such registration being forfeited or imperilled or the Collateral Ship being
required to be registered under the laws of another state of registry.
|
23.8 |
Lay up
|
23.9 |
Manager
|
23.10 |
Copy of Mortgage on board
|
23.11 |
Notice of Mortgage
|
23.12 |
Conveyance on default
|
24. |
Condition and operation of Collateral Ship
|
24.1 |
Undertaking to comply
|
24.2 |
Defined terms
|
24.3 |
Repair
|
24.4 |
Modification
|
24.5 |
Removal of parts
|
24.6 |
Third party owned equipment
|
24.7 |
Maintenance of class; compliance with laws and codes
|
24.8 |
Surveys
|
24.9 |
Inspection and notice of dry-docking
|
24.10 |
Prevention of arrest
|
24.11 |
Release from arrest
|
24.12 |
Information about Collateral Ship
|
24.13 |
Notification of certain events
|
|
(a) |
any damage to the Collateral Ship where the cost of the resulting repairs is reasonably likely to exceed the relevant Major Casualty Amount
;
|
|
(b) |
any occurrence which is reasonably likely to result in the Collateral Ship becoming a Total Loss
;
|
|
(c) |
any requisition of the Collateral Ship for hire;
|
|
(d) |
any Environmental Incident involving the Collateral Ship and Environmental Claim being made in relation to such an incident;
|
|
(e) |
any withdrawal of any appl
i
cable operating certificate;
|
|
(f) |
the receipt of notification that any application for such a certificate has been refused
;
|
|
(g) |
any requirement or recommendation made in relation to the Collateral Ship by any insurer or the relevant Classification Society or by any competent authority
which is not, or cannot be
,
complied with in the manner or time required or recommended; and
|
|
(h) |
any arrest or detention of the Collateral Ship or any exercise or purported exercise of a lien or other claim on the Collateral Ship or its Earnings or
Insurances.
|
24.14 |
Payment of outgoings
|
24.15 |
Evidence of payments
|
|
(a) |
the wages and allotments and the insurance and pension contributions of the Collateral Ship
’
s crew are being timely and regularly paid
;
|
|
(b) |
all deductions from its crew’s wages in respect of any applicable Tax liability are being properly accounted for; and
|
|
(c) |
the Collateral Ship’s master has no claim for disbursements other than those incurred by him or her in the ordinary course of trading on the voyage then in
progress.
|
24.16 |
Repairers’ liens
|
24.17 |
Survey report
|
24.18 |
Lawful use
|
|
(a) |
in any way or in any activity which is unlawful under international law or the domestic laws of any relevant country;
|
|
(b) |
in carrying illicit or prohibited goods;
|
|
(c) |
in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated; or
|
|
(d) |
if there are hostilities in any part of the world (whether war has been declared or not), in carrying contraband goods,
|
24.19 |
War zones
|
25. |
Insurance
|
25.1 |
Undertaking to comply
|
25.2 |
Insurance terms
|
25.3 |
Coverage required
|
|
(a) |
against fire and usual marine r
i
sks (including excess
risks) and war risks (including war protection and indemnity risks and terrorism risks) on an agreed value basis
,
for at least its
minimum hull cover and no less than its market value;
|
|
(b) |
against P&I risks for the highest amount then available in the insurance market for vessels of similar age
,
size and type as the Collateral Sh
i
p (but, in relation to liability for
oil pollution, for an amount of not less than $1,000,000,000);
|
|
(c) |
against such other risks (excluding loss of hire) and matters which the Agent notifies it that it considers reasonable for a prudent shipowner or operator to
insure against at the time of that notice (having regard to general insurance market practice and law at the time but always excluding any loss of earnings cover)
;
and
|
|
(d) |
on terms which comply with the other provisions of this clause 26.
|
25.4 |
Placing of cover
|
|
(a) |
in the name of the Guarantor and no other person (other than the Security Agent (and any other Finance Party required by the Agent) if required by the Agent)
(unless such
|
|
(b) |
if the Agent so requests, in the joint names of the Guarantor and the Security Agent (and any other Finance Party required by the Agent) (and
,
to the extent reasonably practicable in the insurance market, without liability on the part of the Security Agent or such Finance Party
for premiums or calls);
|
|
(c) |
in
dollars or another approved currency;
|
|
(d) |
arranged through approved brokers or direct with approved insurers or protection and indemnity or war risks associations;
|
|
(e) |
in full force and effect; and
|
|
(f) |
on approved terms and with approved insurers or associations
.
|
25.5 |
Deductibles
|
25.6 |
Mortgagee’s insurance
|
|
(a) |
a mortgagee’s interest insurance and a mortgagee’s additional perils (all P&I risks) cover for the benefit of the Finance Parties for an amount up to 120
per cent of the Collateral Loan; and
|
|
(b) |
any other insurance cover which the Agent reasonably requires (having regard to general insurance market practice and law at the time) in respect of any
Finance Party’s interests and potential liabilities (whether as mortgagee of the Collateral Ship or beneficiary of the Security Documents).
|
25.7 |
Fleet liens, set off and cancellations
|
|
(a) |
set off against any claims in respect of the Collateral Ship any premiums due in respect of any of such other vessels insured; or
|
|
(b) |
cancel that cover because of non-payment of premiums in respect of such other vessels,
|
25.8 |
Payment of premiums
|
25.9 |
Details of proposed renewal of Insurances
|
25.10 |
Instructions for renewal
|
25.11 |
Confirmation of renewal
|
25.12 |
P&I guarantees
|
25.13 |
Insurance documents
|
25.14 |
Letters of undertaking
|
25.15 |
Insurance Notices and Loss Payable Clauses
|
25.16 |
Insurance correspondence
|
25.17 |
Qualifications and exclusions
|
25.18 |
Independent report
|
25.19 |
Collection of claims
|
25.20 |
Employment of Collateral Ship
|
25.21 |
Declarations and returns
|
25.22 |
Application of recoveries
|
25.23 |
Settlement of claims
|
25.24 |
Change in insurance requirements
|
26. |
Chartering undertakings
|
26.1 |
Undertaking to comply
|
26.2 |
Variations
|
26.3 |
Releases and waivers
|
26.4 |
Termination of Charter
|
26.5 |
Charter performance
|
26.6 |
Payment of Charter Earnings
|
26.7 |
Notice of assignment
|
|
(a) |
subject to paragraph (b) below, shall ensure that the Agent receives a copy of that notice acknowledged by the relevant addressee; or
|
|
(b) |
if such Charter Documents are freely assignable, the Guarantor shall (and it shall procure that the Charterer will) use commercially reasonable efforts to
ensure that the Agent receives a copy of that notice acknowledged by the relevant addressee,
|
27. |
Bank accounts
|
27.1 |
Undertaking to comply
|
27.2 |
Operating Account
|
|
(a) |
The Borrower and the Guarantor shall each be the holder of one Account with an Account Bank which is designated as the “Operating Account” for the purposes of
the Finance Documents.
|
|
(b) |
The Earnings of the Guarantor shall be paid by the persons from whom they are due to the Operating Account of the Guarantor and any dividends and capital
returns payable by the Guarantor to the Borrower shall be paid to the Operating Account of the Borrower unless, in each case, required to be paid to the Security Agent under the relevant Finance Documents.
|
|
(c) |
The Borrower shall not withdraw amounts standing to the credit of its Operating Account except as permitted by paragraph (e) below.
|
|
(d) |
The Guarantor shall not withdraw amounts standing to the credit of its Operating Account except as permitted by paragraph (e) below.
|
|
(e) |
If there is no continuing Event of Default, the Borrower may withdraw the following amounts from the relevant Operating Account for:
|
|
(i) |
payments then due to Finance Parties under the Finance Documents (other than payments due in respect of a prepayment (unless it is a voluntary prepayment
under clause 7.3
(Voluntary prepayment));
and
|
|
(ii) |
payments in the ordinary course of its business which are permitted (or not prohibited) by this Agreement and/or the other Finance Documents.
|
|
(f) |
If there is no continuing Event of Default, the Guarantor may withdraw any amounts from the relevant Operating Account for any purpose which is permitted (or
not prohibited) by this Agreement and the relevant Post-Delivery Finance Documents.
|
27.3 |
Other provisions
|
|
(a) |
An Account may only be designated for the purposes described in this clause 27 if
:
|
|
(i) |
such designation is made in writing by the Agent and acknowledged by the relevant Account Holder(s) and specifies the name and address of the Account Bank and
the number and any designation or other reference attributed to the Account;
|
|
(ii) |
an Account Security has been duly executed and delivered by the relevant Account Holder(s) in favour of the Security Agent (and any other Finance Party
required by the Agent);
|
|
(iii) |
any notice required by the Account Security to be given to an Account Bank has been given to, and acknowledged by, the Account Bank in the form required by
the relevant Account Security; and
|
|
(iv) |
the Agent, or its duly authorised representative, has received such documents and evidence it may require in relation to the Account and the relevant Account
Security including documents and evidence of the type referred to in Schedule 3
(Conditions precedent)
in relation to the Account
and the relevant Account Security.
|
|
(b) |
The rates of payment of interest and other terms regulating any Account will be a matter of separate agreement between the relevant Account Holder(s) and an
Account Bank.
|
|
(c) |
If an Account is a fixed term deposit account, the relevant Account Holder(s) may select the terms of deposits until the relevant Account Security has become
enforceable and the Security Agent directs otherwise.
|
|
(d) |
The relevant Account Holder(s) shall not close any Account or alter the terms of any Account from those in force at the time it is designated for the purposes
of this clause 27 or waive any of its rights in relation to an Account except with approval.
|
|
(e) |
The relevant Account Holder(s) shall deposit with the Security Agent all certificates of deposit, receipts or other instruments or securities relating to any
Account, notify the Security Agent of any claim or notice relating to an Account from any other party and provide the Agent with any other information it may reasonably request concerning any Account.
|
|
(f) |
Each of the Agent and the Security Agent agrees that if it is an Account Bank in respect of an Account then there will be no restrictions on creating a
Security Interest over that Account as contemplated by this Agreement and it shall not (except with the approval of the Majority Lenders) exercise any right of combination, consolidation or set-off which it may have in respect of that
Account in a manner adverse to the rights of the other Finance Parties.
|
28. |
Business restrictions
|
28.1 |
Undertaking to comply
|
28.2 |
General negative pledge
|
|
(a) |
In this clause 28.2, Quasi-Security means an arrangement or transaction described in paragraph (c) below.
|
|
(b) |
The Borrower shall not create or permit to subsist any Security Interest over any of its shares in the Guarantor.
|
|
(c) |
(Without prejudice to clauses 28.3
(Financial Indebtedness)
and 28.7
(Disposals)),
the Borrower shall not:
|
|
(i) |
sell, transfer, factor or otherwise dispose of any of its receivables on recourse terms;
|
|
(ii) |
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
|
|
(iii) |
enter into any other preferential arrangement having a similar effect,
|
|
(d) |
Paragraphs (b) and (c) above do not apply to any Security Interest or (as the case may be) Quasi-Security, those granted or expressed to be granted by any of
the Security Documents;
|
28.3 |
Financial Indebtedness
|
|
(a) |
Financial Indebtedness incurred under the Finance Documents;
|
|
(b) |
Financial Indebtedness incurred under the Family Trading Facility or any other shareholders’ loan, provided always that such Financial Indebtedness:
|
|
(i) |
is not guaranteed by any Group Member (other than the Borrower) nor is it secured by means of a Security Interest over an asset of a Group Member (including a
Fleet Vessel);
|
|
(ii) |
is subject to a duly executed subordination agreement between the Finance Parties and the relevant creditor(s) in an agreed form;
|
|
(iii) |
without prejudice to the generality of sub-paragraph (ii) above:
|
|
(A) |
is fully subordinate in all respects to this Agreement;
|
|
(B) |
does not provide under its terms for any cash repayment or prepayment obligations of the relevant Group Member prior to the Reduction Date (other than the
prepayment obligation/right set out in clause 28.12
(Family Trading Facility));
|
|
(C) |
does not provide for the payment of interest in cash or preferred shares which provide for the payment of cash dividends, in each case prior to the Reduction
Date; and
|
|
(D) |
does not provide for its conversion into preferred shares of the Borrower or of any other Group Member on terms which provide for such preferred shares paying
a cash dividend to their holders, in each case prior to the Reduction Date;
|
|
(c) |
Financial Indebtedness permitted under clause 28.4
(Guarantees);
and
|
|
(d) |
Financial Indebtedness permitted under clause 28.5
(Loans
and credit).
|
28.4 |
Guarantees
|
28.5 |
Loans and credit
|
28.6 |
Bank accounts, operating leases and other financial transactions
|
|
(a) |
maintain any current or deposit account with a bank or financial institution except for the relevant Operating Account and the deposit of money, operation of
current accounts and the conduct of electronic banking operations through the relevant Operating Account;
|
|
(b) |
hold cash in any account (other than the relevant Operating Account) over or in respect of which any set-off, combination of accounts, netting or Security
Interest exists;
|
|
(c) |
enter into any obligations under operating leases relating to assets; or
|
|
(d) |
be party to any transaction
,
whether on o
r
off balance sheet
,
that is not
expressly permitted under this Agreement.
|
28.7 |
Disposals
|
28.8 |
Contracts and arrangements with Affiliates
|
28.9 |
Acquisitions and investments
|
|
(a) |
the incurrence of liabilities in the ordinary course of its business
;
and
|
|
(b) |
pursuant to any Finance Document.
|
28.10 |
Reduction of capital
|
28.11 |
Increase in capital
|
28.12 |
Family Trading Facility
|
28.13 |
Capital Expenditures
|
|
(a) |
any cash at hand of the Group accumulated over time in the ordinary course of business shall be excluded from any assessment to be made as regards the
existence or not of committed financing instruments
;
and
|
|
(b) |
an increase in the amount available under the Family Trading Facility shall be deemed to satisfy the requirement of having committed financing instruments in
place.
|
28.14 |
Distributions and other payments
|
|
(a) |
declare or pay (
i
ncluding by way of set-off, combination
of accounts or otherwise) any dividend
,
charge
,
fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind (other than in the form of common or preferred shares of the Borrower, provided any such
common or preferred shares do not provide for the payment of cash dividends prior to the Reduction Date)) on or in respect of its share capital (or any class of its share capital) or any warrants for the time being in issue, provided
however that the Borrower shall be entitled to declare, but not to pay to its shareholders,
a cash dividend for the Fiscal Year ending
on 31 December 2019
;
|
|
(b) |
repay or distribute any dividend or share premium reserve
;
|
|
(c) |
pay any management
,
advisory or other fee to or to the
order of any its shareholders
,
unless such fee has been disclosed in writing to the Agent prior to the date of this Agreement;
|
|
(d) |
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so; or
|
|
(e) |
make any payment (including by way of set-off, combination of accounts or otherwise) by way of interest
,
or repayment, redemption, purchase or other payment
,
in respect of any shareholder
loan
,
loan stock or similar instrument, other than in accordance with clause 28
.
3(b);
|
29. |
Events of Default
|
29.1 |
Each of the events or circumstances set out
i
n this
clause 29 (except clause 29
.
24
(Acceleration)
) is an Event of Default.
|
29.2 |
Non-payment
|
|
(a) |
its failure to pay is caused by administrative or technical error or by a Disruption Event; and
|
|
(b) |
payment is made within three (3) Business Days of its due date
.
|
29.3 |
Financial covenants
|
29.4 |
Other obligations
|
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in clause 29.2
(Non-payment),
clause 29.3
(Financial covenants)
and
the other provisions of this clause 29).
|
|
(b) |
No Event of Default under paragraph (a) above will occur if the Agent considers that the failure to comply
is
capable of remedy and the failure is remedied within five Business Days of the earlier of (A) the Agent giving notice to the Borrower and (B) the Borrower or any other Obligor
becoming aware of the failure to comply.
|
29.5 |
Misrepresentation
|
29.6 |
Cross default
|
|
(a) |
Any Financial Indebtedness of any Obligor (other than the Charterer) is not paid when due nor within any originally applicable grace period.
|
|
(b) |
Any Financial Indebtedness of any Obligor (other than the Charterer) 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 (other than the Charterer) is cancelled or suspended by a creditor of that Obligor as a result of
an event of default (however described).
|
|
(d) |
The counterparty to a Treasury Transaction entered into by the Borrower becomes entitled to terminate that Treasury Transaction early by reason of an event of
default (however described).
|
|
(e) |
An Event of Default will only occur under this clause 29.6 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling
within this clause 29.6 is more than $5,000,000 (or its equivalent in any other currency).
|
|
(f) |
Any creditor of any Obligor (other than the Charterer) becomes entitled to declare any Financial Indebtedness of that Obligor due and payable prior to its
specified maturity as a result of an event of default (however described).
|
29.7 |
Insolvency
|
|
(a) |
An 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 without the consent of the affected creditor(s) or threatens to suspend making payments on any of its debts; or
|
|
(iv) |
by reason of actual or anticipated financial difficulties
,
commences
negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling all or substantially all of its Financial Indebtedness.
|
|
(b) |
The value of the assets of any Obligor (other than the Charterer) is less than its Total Debt.
|
|
(c) |
A moratorium is declared in respect of any indebtedness of any Obligor exceeding
$1,500
,
000 (or
its equivalent in any other currency) in aggregate
.
|
29.8 |
Insolvency proceedings
|
|
(a) |
Any co
r
porate action, legal proceedings or other procedure
or s
t
ep is taken in re
l
ation to
:
|
|
(i) |
the suspension of payments, a moratorium of any indebtedness
,
winding-up,
dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor;
|
|
(ii) |
a composition, compromise
,
assignment or arrangement with
any creditor of any Obligor;
|
|
(iii) |
the appointment of a liquidator, receiver, administrative receiver
,
administrator, compulsory manager or other similar officer in respect of any Obligor or any of its assets (including the d
i
rectors
of any Obliger requesting a person to appoint any such officer in relat
i
on to it or any of
i
ts assets)
;
or
|
|
(iv) |
enforcement of any Security Interest over any assets of any Obligor (having in the case of the Borrower a value in excess of $1,500
,
000 (or its equivalent in any other currency) in aggregate),
|
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition (or analogous procedure or step) which is frivolous or vexatious and is discharged, stayed or
dismissed with
i
n seven days of commencement or
,
if earl
i
er
,
the
date on wh
i
ch
i
t
i
s advert
i
sed
.
|
29.9 |
Creditors’ process
|
|
(a) |
Any expropriation, attachment, sequestration, distress, execution or any other analogous process or enforcement action (including enforcement by a landlord)
affects any asset or assets of any Obligor (other than the Charterer) (having in the case of the Borrower a value in excess of $1,500,000 (or its equivalent in any other currency) in aggregate) and is not discharged within seven days.
|
|
(b) |
Any judgment or order is made against any Obligor (other than the Charterer) or any other Group Member and
i
s not stayed or complied w
i
th w
i
thin fifteen days
.
|
29.10 |
Unlawfulness and invalidity
|
|
(a) |
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or any Transaction Security ceases to be effective.
|
|
(b) |
Any obligation or obligations of any Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or
enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents
.
|
|
(c) |
Any Finance Document or any Transaction Security ceases to be in full force and effect or ceases to be legal, valid, binding
,
enforceable or effective or is alleged by a party to it (other than a Finance Party) to be ineffective for any reason
.
|
|
(d) |
Any Security Document does not create legal, valid, binding and enforceable security over the assets charged under that Security Document or the ranking or
priority of such security is adversely affected.
|
29.11 |
Cessation of business
|
29.12 |
Ownership of the Guarantor
|
29.13 |
Expropriation
|
29.14 |
Repudiation and rescission of Finance Documents
|
29.15 |
Litigation
|
|
(a) |
any litigation, alternative dispute resolution, arbitration or administrative, governmental, regulatory or other investigations, proceedings or disputes are
commenced or threatened; or
|
|
(b) |
any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body is made,
|
29.16 |
Material Adverse Effect
|
29.17 |
Security enforceable
|
29.18 |
Political risk
|
|
(a) |
Either (1) any Relevant Jurisdiction of an Obligor becomes involved in hostilities or civil war or (2) there is a seizure of power in any such Relevant
Jurisdiction by unconstitutional means and (in either such case) in the opinion of the Agent such event or circumstance, has or is reasonably likely to have, a Material Adverse Effect.
|
|
(b) |
No Event of Default under paragraph (a) above will occur if
:
|
|
(i) |
in the opinion of the Agent it is practicable for action to be taken by the Borrower to prevent the relevant event or circumstance having a Material Adverse
Effect
;
and
|
|
(ii) |
the Borrower takes such action to the Agent’s satisfaction within 14 days of notice from the Agent (specifying the relevant action to be taken) to do so
.
|
29.19 |
Post-Delivery Events
|
29.20 |
Sanctions
|
|
(a) |
Any of the Obligors or any Affiliate of any of them or any of their respective directors
,
officers, agents, employees or other persons acting on behalf of the foregoing, becomes a Restricted Person or becomes owned or controlled by, or acts directly or indirectly on behalf of, a Restricted
Person or any of such persons becomes the owner or controller of a Prohibited Person; or
|
|
(b) |
Any proceeds of the Loan are made available
,
directly or
indirectly, to or for the benefit of a Restricted Person or otherwise is, directly or indirectly
,
applied in a manner or for a purpose
prohibited by applicable Sanctions; or
|
|
(c) |
Any Obligor or any of their respective Affiliates or any of their respective directors, officers, agents, employees or other persons acting on behalf of the
foregoing, is not in compliance with all applicable Sanctions.
|
29.21 |
Insurance
|
|
(a) |
The Insurances of the Collateral Ship are not placed and kept
in
force in the manner required by clause 25
(Insurance)
.
|
|
(b) |
Any insurer either:
|
|
(i) |
cancels any such Insurances; or
|
|
(ii) |
disclaims liability under them or asserts that its liability under them is or should be reduced by reason of any mis-statement or failure or default by any
person.
|
29.22 |
De-listing or suspension of trading
|
29.23 |
Total Loss or sale
|
29.24 |
Acceleration
|
|
(a) |
by notice to the Borrower:
|
|
(i) |
declare that no withdrawals be made from any Account;
|
|
(ii) |
cancel the Total Commitments at which time they shall immediately be cancelled;
|
|
(iii) |
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately
due and payable
,
at which time they shall become immediately due and payable; and/or
|
|
(iv) |
declare that all or part of the Loans be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of
the Majority Lenders; and/or
|
|
(b) |
exercise or direct the Security Agent and/or any other beneficiary of the Security Documents to exercise any or all of its rights
,
remedies
,
powers or discretions under the Finance Documents
.
|
30. |
Changes to the Lenders
|
30.1 |
Assignments by the Lenders
|
30.2 |
Other conditions of assignment
|
|
(a) |
An assignment will only be effective:
|
|
(i) |
on receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same
obligations to the Borrower and the other Finance Parties as it would have been under if
it
was an Original Lender
;
|
|
(ii) |
on the New Lender entering into any documentation required for it to accede as a party to the Subordination Deed and any Security Document to which the
Existing Lender is a party in
its
capacity as a Lender and, in
relation
to such Security Documents, completing any filing, registration or notice requirements;
|
|
(iii) |
on the performance by
the
Agent of all necessary
“
know your customer” or similar checks under all applicable laws and regulations relating to any person that it is required to carry out in
relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender; and
|
|
(iv) |
if that Existing Lender assigns equal fractions of its Commitment and participation in the Loans and each Utilisation (if any) under the Facility
.
|
|
(b) |
Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the 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 the Finance
Documents on or prior to the date on which the assignment becomes effective in accordance with the Finance Documents and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a
Lender.
|
30.3 |
Fee and expenses
|
|
(a) |
all costs and expenses (including legal fees) reasonably incurred by the Agent or the Security Agent in connection with any such assignment; and
|
|
(b) |
any cost
,
loss or liability the Agent or the Security
Agent incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any such assignment.
|
30.4 |
Transfer costs and expenses relating to security
|
|
(a) |
all costs and expenses (including legal fees) reasonably incurred by the Agent or the Security Agent to facilitate the accession by the New Lender to
,
or assignment or transfer to the New Lender of, any Security Document and/or the benefit of any Security Document and any appropriate
registration of any such accession or assignment or transfer
;
and
|
|
(b) |
any cost
,
loss or liability the Agent or the Security
Agent incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any such accession, assignment or transfer.
|
30.5 |
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 Finance Documents
,
the Transaction Security or any other documents
;
|
|
(ii) |
the financial condition of any Obligor
;
|
|
(iii) |
the performance and observance by any Obligor or any other person of its obligations under the Finance Documents or any other documents;
|
|
(iv) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents; or
|
|
(v) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of:
|
|
(A) |
the financial condition and affairs of the Obligors and their related entities in connection with its part
i
cipation in this Agreement;
and
|
|
(B) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents
;
|
|
(ii) |
w
i
ll continue to make
i
ts own independent appraisal of the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents; and
|
|
(iii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in force
.
|
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
|
(i) |
accept a re-assignment from a New Lender of any of the rights assigned under this clause 30; or
|
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under any Transaction
Document or by reason of the application of any Basel II Regulation to the transactions contemplated by the Transaction Documents or otherwise.
|
30.6 |
Procedure available for assignment
|
|
(a) |
Subject to the conditions set out in clause 30.2
(Other
conditions of assignment)
an assignment may be effected in accordance with paragraph (d) below when (a) the Agent executes an otherwise duly completed Transfer Certificate and (b) the Agent executes any document required under
paragraph (a) of clause 30.2
(Other conditions of assignment)
which it may be necessary for it to execute in each case delivered
to it by the Existing Lender and the New Lender duly executed by them and, in the case of any such other document, any other relevant person. The Agent shall, subject to paragraph (b)
below, as soon as reasonably practicable after receipt by it of a Transfer Certificate and any such other document each duly completed, appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate and such other document.
|
|
(b) |
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
|
(c) |
The Obligors who are Parties and the other Finance Parties irrevocably authorise the Agent to execute any Transfer Certificate on their behalf without any
consultation with them.
|
|
(d) |
On the Transfer Date:
|
|
(i) |
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the
Transfer Certificate;
|
|
(ii) |
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the
Relevant Obligations
)
and expressed to be the subject of
the release in the Transfer Certificate (but the obligations owed by the Obligors under the Finance Documents shall not be released); and
|
|
(iii) |
the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.
|
|
(e) |
Lenders may utilise procedures other than those set out in this clause 30.6 to assign their rights under the Finance Documents (but not, without the consent
of the relevant Obligor or unless in accordance with this clause 30.6 to obtain a release by that Obligor from the obligations owed to that 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 30.2
(Other conditions of assignment).
|
30.7 |
Copy of Transfer Certificate to Borrower
|
30.8 |
Security over Lenders’ rights
|
|
(a) |
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
|
(b) |
any charge, assignment or other Security Interest 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 other Security
Interest for the Lender as a party to any of the Finance Documents; or
|
|
(ii) |
require any payments to be made by an 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.
|
31. |
Changes to the Obligors
|
32. |
Roles of Agent, Security Agent and Arranger
|
32.1 |
Appointment of the Agent and Security Agent
|
|
(a) |
the Agent to act as its agent under and
in
connection
with the Finance Documents; and
|
|
(b) |
the Security Agent to act as its agent and as trustee under the Security Documents.
|
32.2 |
Security Agent as trustee
|
32.3 |
Authorisation of Agent and Security Agent
|
|
(a) |
to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent or (as
the case may be) the Security Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and
|
|
(b) |
to execute each of the Security Documents and all other documents that may be approved by the Majority Lenders for execution by it.
|
32.4 |
Instructions to Agent and the Security Agent
|
|
(a) |
The Agent and the Security Agent shall:
|
|
(i) |
subject to paragraphs (d) and (e) below, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent or (as the case
may be) the Security Agent in accordance with any instructions given to it by:
|
|
(A) |
all Lenders
if
the relevant Finance Document stipulates
the matter is an all Lender decision; and
|
|
(B) |
in
all other cases, the Majority Lenders; and
|
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above (or, if the relevant Finance Document
stipulates the matter
is
a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to
it by that Finance Party or group of Finance Parties).
|
|
(b) |
The Agent and the Security 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 Agent or (as the case may be) the Security Agent may refrain from acting unless and until it receives those
instructions
or that clarification
.
|
|
(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 Agent or (as the case may be) the Security Agent by the Majority Lenders
shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
|
(d) |
Paragraph (a) above shall not apply:
|
|
(i) |
where a contrary indication appears in a Finance Document;
|
|
(ii) |
where a Finance Document requires the Agent or the Security Agent to act in a specified manner or to take a specified action; and
|
|
(iii) |
in respect of any provision which protects the Agent’s or the Security Agent’s own position in its personal capacity as opposed to its role of the Agent or
the Security Agent for the Finance Parties including, without limitation, clause 32.9
(No duty to account)
to clause 32
.
14
(Exclusion
of liability)
,
clause
32
.
19
(Confidentiality)
to
clause 33.6
(Custodians and nominees)
and clauses 33
.
9
(Acceptance of title)
to 33
.
12 (
Disapplication of Trustee Acts
).
|
|
(e) |
If giving effect to instructions given by any other Finance Party or group of Finance Parties would (in the Agent’s or (as the case may be) the Security
Agent’s opinion) have an effect equivalent to an amendment or waiver which is subject to clause 44
(Amendments and waivers)
,
the Agent or (as the case may be) the Security Agent shall not act in accordance with those instructions unless
consent to it so acting is obtained from each Party (other than itself) whose consent would have been required in respect of that amendment or waiver.
|
|
(f) |
The Agent or the Security Agent may refrain from acting in accordance with any instructions of any other 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.
|
|
(g) |
Without prejudice to the provisions of clause 34
(Enforcement
of Transaction Security)
and the remainder of this clause 32, in the absence of instructions, the Agent and the Security Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
32.5 |
Legal or arbitration proceedings
|
32.6 |
Duties of the Agent and the Security Agent
|
|
(a) |
The Agent’s and the Security Agent
’
s duties under the
Finance Documents are solely mechanical and administrative in nature
.
|
|
(b) |
Subject to paragraph (c) below
,
the Agent or (as the case
may be) the Security Agent shall promptly
:
|
|
(i) |
(in the case of the Security Agent) forward to the Agent a copy of any document received by the Security Agent from any Obligor under any Finance Document;
and
|
|
(ii) |
forward to a Party the original or a copy of any document which is delivered to the Agent or (as the case may be) the Security Agent for that Party by any
other Party.
|
|
(c) |
Without prejudice to clause 30.7
(Copy of Transfer
Certificate to Borrower),
paragraph (b) above shall not apply to any Transfer Certificate
.
|
|
(d) |
Except where a Finance Document specifically provides otherwise, neither the Agent nor the Security Agent is obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
|
|
(e) |
Without prejudice to clause 35.10
(Notification of
prescribed events),
if the Agent or the Security Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other
Finance Parties.
|
|
(f) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the
Arranger or the Security Agent for their own account) under this Agreement, it shall promptly notify the other Finance Parties.
|
|
(g) |
The Agent shall provide to the Borrower within five Business Days of a request by the Borrower (but no more frequently than once per calendar month), a list
(which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments and the address (and the department or officer, if any, for whose attention any communication is to be
made) of each Lender for any communication
to
be made or document to be delivered under or in connection with the Finance Documents
,
the electronic mail address and/or any other
information
required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may
be made by that means and the account details of each Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents
.
|
|
(h) |
The Agent and 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).
|
32.7 |
Role of the Arranger
|
32.8 |
No fiduciary duties
|
32.9 |
No duty to account
|
32.10 |
Business with the Group
|
32.11 |
Rights and discretions of the Agent and the Security Agent
|
|
(a) |
The Agent and 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 Lenders or other Finance Parties or any group of Lenders or other 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) |
in
the case of the Security Agent, 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 (C) such person approves of any particular dealing, transaction, step, action or thing,
|
|
(b) |
The Agent and the Security Agent may assume (unless it has received notice to the contrary in its capacity as agent or (as the case may be) security trustee
for the other Finance Parties) that:
|
|
(i) |
no Notifiable Debt Purchase Transaction:
|
|
(A) |
has been entered
into;
|
|
(B) |
has been terminated; or
|
|
(C) |
has ceased to be with a Borrower Affiliate;
|
|
(ii) |
no Default has occurred (unless (in the case of the Agent)
it
has
actual knowledge of a Default arising under clause 29.2
(Non-payment));
|
|
(iii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised
;
and
|
|
(iv) |
any notice or request made by the Borrower (other than (in the case of the Agent) a Utilisation Request) is made on behalf of and with the consent and
knowledge of all the Obligors.
|
|
(c) |
Each of the Agent and the Securi
t
y Agent may engage and
pay for the advice or services of any lawyers
,
accountants
,
tax advisers
,
insurance consultants
,
ship managers, valuers
,
surveyors or other professional advisers or experts
.
|
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, each of the Agent and the Security Agent may at any time engage and pay for
the services of any lawyers to act as independent counsel to it (and so separate from any lawyers instructed by the Lenders or any other Finance Party) if it
,
in its reasonable opin
i
on
,
deems this to be necessary
.
|
|
(e) |
Each of the Agent and the Security Agent may rely on the advice or services of any lawyers
,
accountants
,
tax advisers
,
insurance consultants, ship managers, valuers
,
surveyors or other professional advisers or experts
(whether obtained by it 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 Agent,
the Security Agent, any Receiver and any
Delegate may act in relation to the Finance Documents
,
the Transaction Security and the Security Property through its officers,
employees and agents and shall not:
|
|
(i) |
be liable for any error of
j
udgment 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 any Finance Document expressly specifies otherwise
,
the
Agent or the Security Agent may d
i
sclose to any other Party any information it reasonably believes it has rece
i
ved as agent or security trus
t
ee under this Agreement.
|
|
(h) |
Without prejudice to the generality of paragraph (g) above, the Agen
t:
|
|
(i) |
may disclose; and
|
|
(ii) |
on the written request of the Borrower or the Majority Lenders shall, as soon as reasonably practicable, disclose
,
|
|
(i) |
Notw
i
thstand
i
ng any other provis
i
on of any Finance Document to the contrary
,
no
n
e of the Agent
,
the Security Agent nor the Arranger is obliged to do or omit to do anything if
i
t 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
,
neither the Agent nor the Security Agent is 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 o
r
adequate indemnity aga
i
nst, or security for
,
such risk or l
i
ab
i
lity
i
s
n
o
t
reasonably assured to
it.
|
|
(k) |
Neither the Agent nor the Arranger shall be obliged to request any certificate, opinion or other information under clause 20
(Information undertakings)
unless so required in writing by a Lender, in which case the Agent shall promptly make the appropriate request of the Borrower if
such request would be in accordance with the terms of this Agreement.
|
32.12 |
Responsibility for documentation and other matters
|
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Security Agent, the Arranger, an Obligor or any
other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of
,
under or
in
connection with any
Finance Document
;
|
|
(b) |
the legality, validity, effectiveness
,
adequacy or
enforceability of any Transaction Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document, the
Transaction Security or the Security Property;
|
|
(c) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
|
(d) |
(in the case of the Security Agent) any loss to the Security Property arising in consequence of the failure, depreciation or
loss
of any Charged Property or any
investments
made or
retained in good faith or by reason of any other matter or
thing;
|
|
(e) |
the failure of any Obligor or any other party to perform its obligations under any Transaction Document or the financial condition of any such person;
|
|
(f) |
(save as otherwise provided in this clause 32) taking or omitting to take any other action under or in relation to the Security Documents
;
|
|
(g) |
any other beneficiary of a Security Document failing to perform or discharge any of its duties or obligations under any Finance Document
;
or
|
|
(h) |
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or
prohibited by any applicable law or regulation relating to insider dealing or otherwise.
|
32.13 |
No duty to monitor
|
|
(a) |
whether or not any Default has occurred;
|
|
(b) |
as to the performance, default or any breach by any Party or any Obligor of its obligations under any Finance Document
;
or
|
|
(c) |
whether any other event specified
in
any Finance
Document has occurred.
|
32.14 |
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 Agent,
the Security Agent, any Receiver or Delegate)
,
none of the Agent, the Security Agent
,
any Receiver nor any Delegate will be liable (including, without limitation
,
for
negligence or any other category of liability whatsoever) 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
|
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance 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 Finance Document or the Security Property;
|
|
(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, losses, any diminution in value or any liability whatsoever arising
as a result of:
|
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
|
(b) |
No Party (other than the Agent, the Security Agent, that Receiver or that Delegate (as applicable)) may take any proceedings against any officer, employee or
agent of the Agent, the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Agent, the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Agent, the Security Agent, a Receiver or a Delegate may rely on this clause subject to clause 1.4
(Third party rights)
and the provisions of the Third Parties Act.
|
|
(c) |
Neither of the Agent or the Security Agent will 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 it if it 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 it for that
purpose.
|
|
(d) |
Nothing in any Finance Document shall oblige the Agent, the Security Agent or the Arranger to carry out:
|
|
(i) |
any “know your customer” or other checks in relation to any person; or
|
|
(ii) |
any check on the extent to which any transaction contemplated by any of the Finance Documents might be unlawful for any Finance Party or for any Affiliate of
any Finance Party,
|
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Agent, the Security Agent, any Receiver or any Delegate,
any liability of the Agent, the Security Agent, any Receiver or any Delegate arising under or in connection with any Finance 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 Agent, the Security Agent, Receiver or Delegate (as the case may be) 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 Agent, the Security Agent, Receiver or Delegate (as the case may be) at any time which increase the amount of that loss
.
In no event shall the Agent, the Security Agent, any Receiver or any 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 Agent, the Security Agent,
Receiver or Delegate (as the case may be) has been advised of the possibility of such loss or damages
.
|
32.15 |
Lenders’ indemnity to the Agent and others
|
|
(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 being reduced to zero) indemnify the Agent, the Security Agent, every Receiver and every Delegate, within
three Business Days of demand, against any Losses (including, without limitation, for negligence or any other category of liability whatsoever) incurred by any of them (otherwise than by reason of the relevant Agent’s, Security Agent’s,
Receiver’s or Delegate
’
s gross negligence or wilful misconduct) (or, in the circumstances contemplated pursuant to clause 38.11
(Disruption to payment systems etc,
notwithstanding the Agent’s negligence, gross negligence, or any other category of liability
whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent, Security Agent, Receiver or Delegate under, or exercising any authority conferred under, the Finance Documents (unless the relevant Agent,
Security Agent, Receiver or Delegate has been reimbursed by an 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 Agent or the Security
Agent or any Receiver or Delegate pursuant to paragraph (a) above.
|
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the
Agent or the Security Agent to an Obligor
.
|
32.16 |
Resignation of the Agent or the Security Agent
|
|
(a) |
The Agent or 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 Agent or 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 Agent or Security Agent.
|
|
(c) |
If the Majority Lenders have not appointed a successor Agent or Security Agent in accordance with paragraph (b) above within 20 days after notice of
resignation was given,
the retiring Agent or Security Agent (after consultation with (in the case of the Agent) the Borrower or (in the
case of the Security Agent) the Agent) may appoint a successor Agent or Security Agent.
|
|
(d) |
If the Agent or Security Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent or
trustee and the
|
|
(e) |
The retiring Agent or Security Agent shall make available to the successor Agent or Security Agent such documents and records and provide such assistance as
the successor Agent or Security Agent may reasonably request for the purposes of performing its functions as Agent or (as the case may be) Security Agent under the Finance Documents. The Borrower shall, within three Business Days of
demand, reimburse the retiring Agent or (as the case may be) Security Agent for the amount of all costs and expenses (including legal fees) (together with any applicable VAT) properly incurred by it in making available such documents
and records and providing such assistance.
|
|
(f) |
The Agent’s or Security Agent’s resignation notice shall only take effect upon
:
|
|
(i) |
the appointment of a successor; and
|
|
(ii) |
(in the case of the Security Agent) the transfer or assignment of all the Transaction Security and the other Security Property to that successor and any
appropriate filings or registrations, any notices of transfer or assignment and the payment of any fees or duties related to such transfer or assignment which the Security Agent considers necessary or advisable have been duly completed.
|
|
(g) |
Upon the appointment of a successor, the retiring Agent or Security Agent shall be discharged from any further obligation in respect of the Finance Documents
(other than its obligations under paragraph (b) of clause 33.10
(Winding up of trust)
and paragraph (e) above) but shall remain
entitled to the benefit of clauses 15.3
((Indemnity to the Agent and the Security Agent)
and 15.4
(Indemnity concerning security)
and this clause 32 (and any agency or other fees for the account of the retiring Agent or Security Agent in its capacity as
such 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 that successor had been an
original Party.
|
|
(h) |
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor 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 Agent under the Finance Documents, either:
|
|
(i) |
the Agent fails to respond to a request under clause 13.7
(FATCA
Information)
and the Borrower or a Lender reasonably believes that the 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 Agent pursuant to clause 13.7
(FATCA Information)
indicates
that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
|
(iii) |
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application
Date,
|
32.17 |
Replacement of the Agent
|
|
(a) |
After consultation with the Borrower, the Majority Lenders may, by giving 30 days’ notice to the Agent (or, at any time the Agent is an Impaired Agent, by
giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent.
|
|
(b) |
The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Agent such
documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents
.
|
|
(c) |
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this
date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of clauses 15.3
((Indemnity to the Agent and the Security Agent)
and 15.4
(Indemnity concerning security)
and this clause 32 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
|
|
(d) |
Any successor Agent 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.
|
32.18 |
Replacement of the Security Agent
|
32.19 |
Confidentiality
|
|
(a) |
In acting as agent or trustee for the Finance Parties, the Agent or (as the case may be) the Security Agent shall be regarded as acting through its agency,
trustee or other division or department directly responsible for the management of the Finance Documents which shall be treated as a separate entity from any other of its divisions or departments.
|
|
(b) |
If information is received by another division or department of the Agent or (as the case may be) Security Agent
,
it may be treated as confidential to that division or department and the Agent or (as the case may be) Security Agent shall not be deemed to have notice of it.
|
|
(c) |
Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Security Agent nor the Arranger is obliged to disclose to
any other person
|
32.20 |
Agent’s relationship with the Lenders
|
|
(a) |
The Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as notified to the
Finance Parties from time to time) as the Lender acting through its Facility Office:
|
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or
delivered on that day,
|
|
(b) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or
despatched to that Lender under the Finance Documents
.
Such notice shall contain the address and (where communication by electronic
mail or other electronic means is permitted under clause 40.6
(Electronic communication))
electronic mail address and/or any other
information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication
is
to be made) and be treated as a notification of a substitute address, electronic mail address, department and officer (or such other information) by that Lender for the purposes of clause 40.2
(Addresses)
and clause 40.6
(Electronic
communication)
and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender or (as the case may be)
.
|
32.21 |
Information from the Finance Parties
|
32.22 |
Credit appraisal by the Finance Parties
|
|
(a) |
the financial condition, status and nature of each Obligor and other Group Member;
|
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Transaction Security
,
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, the Transaction Security or the Security Property;
|
|
(c) |
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
|
(d) |
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 Finance Document, the Transaction Security, the Security Property, the transactions contemplated by the Finance Documents or
any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document, the Transaction Security or the Security Property
;
|
|
(e) |
the adequacy, accuracy or completeness of any information provided by the Agent, the Security Agent, the Arranger or any other 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
|
|
(f) |
the right or title of any person in or to, or the value or sufficiency of, any part of the Charged Property, the priority of any of the Transaction Security
or the existence of any Security Interest affecting the Charged Property
.
|
32.23 |
Deduction from amounts payable by the Agent
|
32.24 |
Reliance and engagement letters
|
33. |
Trust and security matters
|
33.1 |
Undertaking to pay
|
|
(a) |
Each Obligor who is a Party undertakes with the Security Agent as trustee for the Finance Parties that it will, on demand by the Security Agent, pay to the
Security Agent as trustee for the Finance Parties all money from time to time owing to the other Finance Parties (in addition to paying any money owing under the Finance Documents to the Security Agent for
its
own account)
,
and discharge all other obligations from
time to time incurred
,
by
it under
or
in
connection with the Finance Documents
.
|
|
(b) |
Each payment which such an Obligor makes to another Finance Party in accordance with any Finance Document shall, to the extent of the amount of that payment,
satisfy that Obligor’s corresponding obligation under paragraph (a) above to make that payment to the Security Agent.
|
33.2 |
Parallel debt
|
|
(a) |
Additional definitions
In this clause 33.2:
|
|
(b) |
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.
|
|
(c) |
The Parallel Debt of an Obligor
:
|
|
(i) |
shall become due and payable at the same time as its Corresponding Debt
;
and
|
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
|
(d) |
For purposes of this clause 33.2, 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).
|
|
(e) |
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, and the Corresponding Debt of an Obligor shall be
:
|
|
(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,
|
|
(f) |
All amounts received or recovered by the Security Agent in connection with this clause 33.2 to the extent permitted by applicable law, shall be applied in
accordance with clause 35.1 (
Order of application
).
|
|
(g) |
This clause 33
.
2 shall apply, with any necessary
modifications, to each Finance Document.
|
33.3 |
No responsibility to perfect Transaction Security
|
|
(a) |
ascertain whether all deeds and documents which should have been deposited with it under or pursuant to any of the Security Documents have been so deposited;
|
|
(b) |
require the deposit with it of any deed or document certifying, representing or constituting
the
title of any Obligor to any of the Charged Property;
|
|
(c) |
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;
|
|
(d) |
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;
|
|
(e) |
take, or to require any Obliger to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security effective or to
secure the creation of any ancillary Security Interest under any law or regulation; or
|
|
(f) |
require any further assurance in relation to any Security Document.
|
33.4 |
Insurance by Security Agent
|
|
(a) |
The Security Agent shall not be obliged:
|
|
(i) |
to insure any of the Charged Property;
|
|
(ii) |
to require any other person to maintain any insurance; or
|
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a
result of its failure to notify the
insurers
of any material fact relating to the risk assumed by such insurers or any other
information of any kind, unless the Agent requests it to do so in writing and the Security Agent fails to do so within fourteen days after receipt of that request.
|
33.5 |
Common parties
|
33.6 |
Custodians and nominees
|
33.7 |
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 Finance 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
d
efault on the part of, any such delegate or sub-delegate.
|
33.8 |
Additional trustees
|
|
(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 Finance Parties;
|
|
(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.
|
|
(d) |
At the request of the Security Agent, the other Parties shall forthwith execute all such documents and do all such things as may be required to perfect such
appointment or removal and each such Party irrevocably authorises the Security Agent in its name and on its behalf to do the same.
|
|
(e) |
Such a person shall accede to this Agreement as a Security Agent to the extent necessary to carry out their role on terms satisfactory to the Security Agent.
|
|
(f) |
The Security Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of
,
any such person if the Security Agent shall have exercised reasonable care in the selection of such person
.
|
33.9 |
Acceptance of title
|
33.10 |
Winding up of trust
|
|
(a) |
all of the Secured Obligations and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
|
(b) |
no Finance Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any
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 32.16
(Resignation of the Agent or the Security Agent)
shall release, without recourse or warranty, all of its rights under each Security Document.
|
33.11 |
Powers supplemental to Trustee Acts
|
33.12 |
Disapplication of Trustee Acts
|
34. |
Enforcement of Transaction Security
|
34.1 |
Enforcement Instructions
|
|
(a) |
The Security Agent may refrain from enforcing the Transaction Security unless
instructed
otherwise by Majority Lenders
.
|
|
(b) |
Subject to the Transaction Security having become enforceable in accordance with its terms, the Majority Lenders may give or refrain from giving instructions
to the Security Agent to enforce or refrain from enforcing the Transaction Security as they see fit.
|
|
(c) |
The Security Agent is entitled to rely on and comp
l
y with
instructions given in accordance with this clause 34.1
.
|
34.2 |
Manner of enforcement
|
34.3 |
Waiver of rights
|
34.4 |
Enforcement through Security Agent only
|
|
(a) |
The other Finance Parties shall not have any independent power to enforce, or have recourse to
,
any of the Transaction Security or to exercise any right, power
,
authority or discretion
arising or to grant any consents or releases under the Security Documents except through the Security Agent.
|
|
(b) |
Each Finance Party (other than the Security Agent) shall, promptly upon being requested by the Agent to do so
,
grant a power of attorney or other sufficient authority to the Security Agent to enable the Security Agent to enforce or have recourse to the relevant Transact
i
on Security or to exercise any such r
i
ght
,
power, authority or discretion or to grant any such consent or release
.
|
35. |
Application of proceeds
|
35.1 |
Order of application
|
|
(a) |
in discharging any sums owing to the Security Agent (other than pursuant to clause 33.1
(Undertaking to pay)
or 33.2
(Parallel debt)),
any Receiver or any Delegate;
|
|
(b) |
in discharging all costs and expenses incurred by any Finance Party in connection with any realisation or enforcement of the Transaction Security taken in
accordance with the terms of this Agreement;
|
|
(c) |
in payment or distribution to the Agent on its own behalf and on behalf of the other Finance Parties for application in accordance with clause 38.6
(Partial payments)
;
|
|
(d) |
if none of the 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 Obliger; and
|
|
(e) |
the balance, if any, in payment or distribution to the relevant Obliger
.
|
35.2 |
Investment of cash proceeds
|
|
(a) |
all or part of any Recoveries which are
in
the form of
cash
;
and
|
|
(b) |
any cash which is generated by holding, managing, exploiting, collecting, realising or disposing of any proceeds of the Security Property which are not in the
form of cash,
|
35.3 |
Currency conversion
|
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Obligations the Security Agent may
:
|
|
(i) |
convert any moneys rece
i
ved or recovered by the Security
Agent from one currency to another; and
|
|
(ii) |
notionally convert the valuation provided in any opinion or valuation from one currency to another,
|
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied:
|
|
(i) |
in the case of paragraph (a)(i) above, to the extent of the amount of the due currency purchased after deducting the costs of conversion; and
|
|
(ii) |
in the case of paragraph (a)(ii) above, to the extent of the amount of the due currency which results from the notional conversion referred to in that
paragraph
.
|
35.4 |
Permitted Deductions
|
35.5 |
Good discharge
|
|
(a) |
Any distribution or payment to be made in respect of the Secured Obligations by the Security Agent may be made to the Agent on behalf of the Finance Parties
.
|
|
(b) |
Any distribution or payment made as described in paragraph (a) above shall be a good discharge, to the extent of that payment or distribution, by the Security
Agent to the extent of that payment.
|
|
(c) |
The Security Agent is under no obligation to make the payments to the Agent under paragraph (a) above in the same currency as that in which the Secured
Liabilities owing to the relevant Finance Party are denominated pursuant to the relevant Finance Document.
|
35.6 |
Calculation of amounts
|
|
(a) |
notionally convert the Secured Liabilities owed to any person into a common base currency (decided in its discretion by the Security Agent), that notional
conversion to be made at the spot rate at which the Security Agent is able to purchase the notional base currency with the actual currency of the Secured Liabilities owed to that person at the time at which that calculation is to be
made; and
|
|
(b) |
assume that all amounts received or recovered as a result of the enforcement or realisation of the Security Property are applied in discharge of the Secured
Liabilities in accordance with the terms of the Finance Documents under which those Secured Liabilities have arisen.
|
35.7 |
Release to facilitate enforcement and realisation
|
|
(a) |
Each Finance Party acknowledges that, for the purpose of any enforcement action by the Security Agent or a Receiver and/or maximising or facilitating the
realisation of the Charged Property, it may be desirable that certain rights or claims against an Obligor and/or under certain of the Transaction Security, be released.
|
|
(b) |
Each other Finance Party hereby irrevocably authorises the Security Agent (acting on the instructions of the Agent) to grant any such releases to the extent
necessary to effect such enforcement action and/or realisation including, to the extent necessary for such purpose, to execute release documents in the name of and on behalf of the other Finance Parties.
|
|
(c) |
Where the relevant enforcement is by way of disposal of shares in the Borrower, the requisite release may include releases of all claims (including under
guarantees) of the Finance Parties and/or the Security Agent against the Borrower and of all Security Interests over the assets of the Borrower.
|
35.8 |
Dealings with Security Agent
|
35.9 |
Disclosure between Finance Parties and Security Agent
|
35.10 |
Notification of prescribed events
|
|
(a) |
If an Event of Default or Default either occurs or ceases to be continuing, the Agent shall, upon becoming aware of that occurrence or cessation, notify the
Security Agent.
|
|
(b) |
If the Security Agent enforces, or takes formal steps to enforce, any of the Transaction Security it shall notify each other Finance Party of that action.
|
|
(c) |
If any Finance Party exercises any right it may have to enforce, or to take formal steps to enforce, any of the Transaction Security it shall notify the
Security Agent and the Security Agent shall, upon receiving that notification, notify each other Finance Party of that action.
|
36. |
Conduct of business by the Finance Parties
|
36.1 |
Finance Parties tax affairs
|
|
(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.
|
37. |
Sharing among the Finance Parties
|
37.1 |
Payments to Finance Parties
|
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
|
(b) |
the 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 Agent and distributed in accordance with clause 38
(Payment mechanics),
without taking
account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the
Sharing Payment
)
equal to such receipt or recovery less
any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with clause 38.6
(Partial payments).
|
37.2 |
Redistribution of payments
|
37.3 |
Recovering Finance Party’s rights
|
37.4 |
Reversal of redistribution
|
|
(a) |
each Sharing Finance Party shall, upon request of the Agent
,
pay
to the 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 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 Obligor
.
|
37.5 |
Exceptions
|
|
(a) |
This clause 37 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 Obligor.
|
|
(b) |
A Recovering F
i
nance 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
;
|
|
(ii) |
the taking legal or arbitration proceedings was in accordance with the terms of this Agreement;
and
|
|
(iii) |
that other Finance Party had an opportunity to participate in those legal or arb
i
trat
i
on proceedings but did not do so as soon as reasonably practicable hav
i
ng received notice and did not take separate legal or arbitration proceed
i
ngs.
|
38. |
Payment mechanics
|
38.1 |
Payments to the Agent
|
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to
the 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 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 Agent) and with such bank as the Agent, in each case, specifies.
|
38.2 |
Distributions by the Agent
|
38.3 |
Distributions to an Obliger
|
38.4 |
Clawback and pre-funding
|
|
(a) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
|
(b) |
Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the 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 Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date
of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
|
(c) |
If the Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders
then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:
|
|
(i) |
the Agent shall notify the Borrower of that Lender’s identity and the Borrower shall on demand refund it to the Agent; and
|
|
(ii) |
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower, shall on demand pay to the Agent the amount
(as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
38.5 |
Impaired Agent
|
|
(a) |
If, at any time, the Agent becomes an Impaired Agent, the Borrower or a Lender which is required to make a payment under the Finance Documents to the Agent in
accordance with clause 38.1
(Payments to the Agent)
may instead either:
|
|
(i) |
pay that amount direct to the required recipient(s); or
|
|
(ii) |
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or
the relevant part of that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” and in relation to which no Insolvency Event has occurred and is
continuing, in the name of the Borrower or the Lender making the payment (the
Paying Party
)
and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the
Recipient Party or Recipient Parties
).
|
|
(b) |
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro
rata to their respective entitlements.
|
|
(c) |
A Party which has made a payment in accordance with this clause 38.5 shall be discharged of the relevant payment obligation under the Finance Documents and
shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
|
|
(d) |
Promptly upon the appointment of a successor Agent in accordance with this Agreement, each Paying Party shall (other than to the extent that that Party has
given an instruction pursuant to paragraph (e) below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to
the relevant Recipient Party or Recipient Parties in accordance with clause 38.2
(Distributions by the Agent).
|
|
(e) |
A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
|
|
(i) |
that it has not given an instruction pursuant to paragraph (d) above; and
|
|
(ii) |
that it has been provided with the necessary information by that Recipient Party,
|
38.6 |
Partial payments
|
|
(a) |
If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts then
due and payable by an Obligor under those Finance Documents, the Agent shall apply that payment
|
|
(i) |
first,
in or towards payment pro rata of any unpaid
amount owing to the Agent, the Security Agent or the Arranger for their own account under those Finance Documents;
|
|
(ii) |
secondly,
in or towards payment to the Lenders pro
rata of any amount owing to the Lenders under clause 32.15
(Lenders’ indemnity to the Agent and others);
|
|
(iii) |
thirdly,
in or towards payment to the Lenders pro rata
of all other amounts due to them but unpaid under the Finance Documents; and
|
|
(iv) |
fourthly,
in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
|
|
(b) |
The Agent shall, if so directed by all the Lenders and with prior written notice to the Obligors, vary the order set out in paragraphs (ii) to (iv) of
paragraph (a) above.
|
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by an Obligor
.
|
38.7 |
No set-off by Obligors
|
38.8 |
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 Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the
rate payable on the original due date.
|
38.9 |
Currency of account
|
|
(a) |
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
|
(b) |
A repayment of all or part of a Loan or an Unpaid Sum and each payment of interest shall be made in dollars on its due date.
|
|
(c) |
Each payment in respect of the amount of any costs, expenses or Taxes or other losses shall be made in dollars and, if they were incurred in a currency other
than dollars, the amount payable under the Finance Documents shall be the equivalent in dollars of the relevant amount in such other currency on the date on which it was incurred.
|
|
(d) |
All moneys received or held by the Security Agent or by a Receiver under a Security Document in a currency other than dollars may be sold for dollars and the
Obligor which executed that Security Document shall indemnify the Security Agent against the full cost in relation to the sale. Neither the Security Agent nor such Receiver will have any liability to that Obligor in respect of any loss
resulting from any fluctuation in exchange rates after the sale.
|
38.10 |
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 Agent (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 Agent (acting reasonably).
|
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Borrower)
specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Interbank Market and otherwise to reflect the change in currency.
|
38.11 |
Disruption to payment systems etc.
|
|
(a) |
the 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 Agent may deem necessary in the circumstances;
|
|
(b) |
the Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its reasonable 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 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 Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding
upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of clause 44
(Amendments and waivers);
|
|
(e) |
the 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 Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in
connection with this clause 38.11; and
|
|
(f) |
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
39. |
Set-off
|
40. |
Notices
|
40.1 |
Communications in writing
|
40.2 |
Addresses
|
|
(a) |
in the case of any Obligor who is a Party, that identified with its name in Schedule 1 (
The original parties);
|
|
(b) |
in the case of any Obligor which
is
not a Party
,
that identified in any Finance Document to which it is a party;
|
|
(c) |
in the case of the Security Agent, the Agent and any other original Finance Party, that identified with its name in Schedule 1
(The original parties);
and
|
|
(d) |
in the case of each Lender or other Finance Party, that notified in writing to the Agent on or prior to the date on which it becomes a Party in the relevant
capacity,
|
40.3 |
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 when it has
been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address and, if a particular department or officer is specified as part of its address
details provided under clause 40.2
(Addresses),
if addressed to that department or officer.
|
|
(b) |
Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or the
Security Agent and then only if it is expressly marked for the attention of the department or officer identified in Schedule 1
(The
original parties)
(or any substitute department or officer as the Agent or the Security Agent shall specify for this purpose).
|
|
(c) |
All notices from or to an Obligor shall be sent through the Agent.
|
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this clause 40
.
3 will be deemed to have been made or delivered
to
each of the 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.
|
40.4 |
Notification of address
|
40.5 |
Communication when Agent is Impaired Agent
|
40.6 |
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 Agent or the Security Agent, only if it is addressed in such a manner as the 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 or any other Finance Document 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 40.6.
|
40.7 |
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 Agent, accompanied by a certified English translation and, in this case, the English translation will prevail
unless the document is a constitutional, statutory or other official document.
|
41. |
Calculations and certificates
|
41.1 |
Accounts
|
41.2 |
Certificates and determinations
|
41.3 |
Day count convention
|
42. |
Partial invalidity
|
43. |
Remedies and waivers
|
44. |
Amendments and waivers
|
44.1 |
Required consents
|
|
(a) |
Subject to clause 44.2
(All Lender matters)
and
clause 44
.
3
(Other exceptions),
any
term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Borrower and any such amendment or waiver will be binding on all the Finance Parties and other Obligors.
|
|
(b) |
The Agent may (or, in the case of the Security Documents, instruct the Security Agent to) effect, on behalf of any Finance Party
,
any amendment or waiver permitted by this clause 44.
|
|
(c) |
Without prejudice to the generality of paragraphs (c)
,
(d)
and (e) of clause 32.11
(Rights and discretions of the Agent),
the Agent may engage, pay for and rely on the services of lawyers
in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement.
|
|
(d) |
Each Obligor agrees to any such amendment or wa
i
ver
permitted by this clause 44 which is agreed to by the Borrower. Th
i
s includes any amendment or waiver which would
,
but for this paragraph (d)
,
require the consent of a
Guarantor.
|
44.2 |
All Lender matters
|
|
(a) |
the definition of “Majority Lenders
”
in clause 1
.
1
(Def
i
n
i
t
i
ons);
|
|
(b) |
the definition of
“
Last Availability Date
”
in clause 1.1
(Definitions)
;
|
|
(c) |
an extension to the date of payment of any amount under the Finance Documents;
|
|
(d) |
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable or the rate at which they are
calculated;
|
|
(e) |
an increase in
,
or an extension of
,
any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Fac
i
li
t
y
;
|
|
(f) |
a change to the Borrower or any other Obligor;
|
|
(g) |
any provision which expressly requires the consent or approval of all the Lenders;
|
|
(h) |
clause 37
(Sharing among the Finance Parties)
;
|
|
(i) |
clause 2
.
2 (
Finance
Parties
’
rights and obligations
), clause 7
.
1 (
Illegality
)
,
clause 30 (
Changes to
the Lenders
), clause 8.8 (
Appl
i
cation of prepayments
)
,
th
i
s clause 44
,
clause 49 (
Govern
i
ng law
) or
clause 50
.
1 (
Jurisdiction of English courts
)
;
|
|
(j) |
the order of distribution under clause 35
.
1
(Order of application)
;
|
|
(k) |
the order of distribution under clause 38
.
6
(Partial payments)
;
|
|
(l) |
the currency in which any amount is payable under any Finance Document;
|
|
(m) |
an increase in any Commitment or the Total Commitments, an extension of any period w
i
thin wh
i
ch the Facility is available for Utilisation or any requirement that a cancellation of
Commitments reduces the Comm
i
tments rateably;
|
|
(n) |
(other than as expressly perm
i
tted by the provisions of
any Finance Document) the nature or scope of:
|
|
(i) |
any guarantee and indemnity granted under any Finance Document (including under clause 18
(Guarantee and indemnity));
|
|
(ii) |
the Charged Property; or
|
|
(iii) |
the manner in which the proceeds of enforcement of the Transaction Security are d
i
stributed
;
|
|
(o) |
the circumstances in which any of the Transaction Security is perm
i
tted
or required to be released under any of the Finance Documents,
|
44.3 |
Other exceptions
|
|
(a) |
An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent or the Arranger in their respective capacities as such (and
not just as a Lender) may not be effected without the consent of the Agent, the Security Agent or the Arranger (as the case may be)
.
|
|
(b) |
Notwithstanding clauses 44
.
1 and 44
.
2 and paragraph (a) above, the Agent may make technical amendments to the Finance Documents arising out of manifest errors on the face of the Finance
Documents, where such amendments would not prejudice or otherwise be adverse to the interests of any Finance Party without any reference or consent of the Finance Parties
.
|
44.4 |
Replacement of Screen Rate
|
|
(a) |
providing for the use of a Replacement Benchmark
;
and (b)
|
|
(i) |
aligning any provision of any Finance Document to the use of that Replacement Benchmark
;
|
|
(ii) |
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes
required to enable that Replacement Benchmark to be used for the purposes of this Agreement);
|
|
(iii) |
implementing market conventions applicable to that Replacement Benchmark
;
|
|
(iv) |
providing for appropriate fallback (and market d
i
sruption)
provisions for that Replacement Benchmark
;
or
|
|
(v) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of
the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated
,
nominated
or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation
,
)
|
44.5 |
Releases
|
|
(a) |
any Charged Property from the Transaction Security; or
|
|
(b) |
any Obliger from any of its guarantee or other obligations under any Finance Documen
t.
|
44.6 |
Disenfranchisement of Defaulting Lenders
|
|
(a) |
For so long as a Defaulting Lender has any Available Commitment, in ascertaining
:
|
|
(i) |
the Majority Lenders; or
|
|
(ii) |
whether
:
|
|
(A) |
any given percentage (including, for the avoidance of doubt
,
unanimity)
of the Total Commitments under the Facility; or
|
|
(B) |
the agreement of any specified group of Lenders
,
|
|
(b) |
For the purposes of this clause 44
.
6
,
the Agent may assume that the follow
i
ng
Lenders are Defaulting Lenders
:
|
|
(i) |
any Lender which has notified the Agent that it has become a Defaulting Lender; and
|
|
(ii) |
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definit
i
on of “Defaulting Lender
”
has
occurred,
|
44.7 |
Excluded Commitments
|
|
(a) |
any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote
of Lenders under the terms of this Agreement within 10 Business Days of that request being made; or
|
|
(b) |
any Lender which is not a Defaulting Lender fails to respond to such a request (other than an amendment, waiver or consent referred to in paragraphs (b), (c)
,
(d) and (m) of clause 44
.
2
(All Lender matters))
or such a vote w
i
thin
10 Business Days of that request being made
,
|
|
(i) |
its Comm
i
tment or its participation in the Loan shall not
be included for the purpose of calculating the Total Commitments or the amount of the Loan when ascertain
i
ng whether any re
l
evant percentage (including
,
for the
avo
i
dance of doubt
,
unanimity) of
Total Commitments or the amount of the Loan 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 obta
i
ned to approve that request.
|
44.8 |
Replacement of a Defaulting Lender
|
|
(a) |
The Borrower may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 10 Business Days’ prior notice to the Agent and such
Lender replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) assign pursuant to clause 30
(Changes
to the Lenders)
all (and not part only) of its rights under this Agreement (and any Security Document to which that Lender is a party in its capacity as a Lender) to an Eligible Institution
(a
Replacement Lender
)
which confirms its willingness to undertake and does undertake all the obligations or all the relevant obligations of the assigning Lender in accordance with
clause 30
(Changes to the Lenders)
for a purchase price in cash payable at the time of transfer which is either:
|
|
(i) |
in
an amount equal to:
|
|
(A) |
the outstanding principal amount of such Lender’s participation in the Loan;
|
|
(B) |
all accrued interest owing to such Lender;
|
|
(C) |
the Break Costs which would have been payable to such Lender pursuant to clause 11.5
(Break Costs)
had the Borrower prepaid in full that Lender’s participation in the Loan on the date of the assignment; and
|
|
(D) |
all other amounts payable to that Lender under the Finance Documents on the date of the assignment; or
|
|
(ii) |
in an amount agreed between that Defaulting Lender, the Replacement Lender and the Borrower and which does not exceed the amount described in paragraph (i)
above.
|
|
(b) |
Any assignment by a Defaulting Lender pursuant to this clause 44.8 shall be subject to the following conditions:
|
|
(i) |
the Borrower shall have no right to replace the Agent or the Security Agent;
|
|
(ii) |
neither the Agent nor the Defaulting Lender shall have any obligation to the Borrower to find a Replacement Lender;
|
|
(iii) |
the assignment must take place no later than five Business Days after the notice referred to in paragraph (a) above;
|
|
(iv) |
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant
to the Finance Documents; and
|
|
(v) |
the Defaulting Lender shall only be obliged to assign its rights pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary
“know
your customer” or other similar checks under all applicable laws and regulations in relation to that assignment to the Replacement
Lender.
|
|
(c) |
The Defaulting Lender shall perform
the
checks described
in
paragraph (b) (v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and
shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.
|
44.9 |
Disenfranchisement of Borrower Affiliates
|
|
(a) |
For so long as a Borrower Affiliate:
|
|
(i) |
beneficially owns a Commitment; or
|
|
(ii) |
has entered into a sub-participation agreement relating to a Commitment or other agreement or arrangement having a substantially similar economic effect and
such agreement or arrangement has not been terminated,
|
|
(A) |
the Majority Lenders
;
or
|
|
(B) |
whether:
|
|
(1) |
any given percentage (including, for the avoidance of doubt,
unanimity) of the Total Commitments
;
or
|
|
(2) |
the agreement of any specified group of Lenders,
|
|
(b) |
Each Lender shall, unless such Debt Purchase Transaction is an assignment or transfer, promptly notify the Agent in writing if it knowingly enters into a Debt
Purchase Transaction with a Borrower Affiliate (a Notifiable Debt Purchase Transaction),
such not
i
ficat
i
on to be substantially in the form set out in Part I of
Schedule 6
(Forms of Notifiable Debt Purchase Transaction Notice).
|
|
(c) |
A Lender shall promptly notify the Agent if a Notifiable Debt Purchase Transaction to which it is a party
:
|
|
(i) |
is terminated
;
or
|
|
(ii) |
ceases to be with a Borrower Affiliate,
|
|
(d) |
Each Borrower Affiliate that is a Lender agrees that:
|
|
(i) |
in relation to any meeting or conference call to which all the Lenders are invited to attend or participate
,
it shall not attend or participate in the same if so requested by the Agent or, unless the Agent otherwise agrees
,
be entitled to receive the agenda or any minutes of the same; and
|
|
(ii) |
in its capacity as Lender, unless the Agent otherwise agrees, it shall not be entitled to receive any report or other document prepared at the behest of
,
or on the instructions of, the Agent or one or more of the Lenders
.
|
45. |
Confidential Information
|
45.1 |
Confidential Information
|
45.2 |
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 may potentially assign) 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 Agent or Security Agent and,
in
each case
,
to any of that person
’
s Affiliates, Related Funds, Representatives, professional
advisers and partners;
|
|
(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 Obligors and to any of that
person’s Affiliates, Related Funds, Representatives, professional advisers and partners;
|
|
(iii) |
appointed by any Finance Party or by a person to whom paragraphs (b)(i) or (b)(ii) 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 (b) of clause 32.20
(Relationship with the Lenders));
|
|
(iv) |
who invests
in
or otherwise finances (or may potentially
invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraphs (b)(i) or (b)(ii) 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, arbitration, 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 30
.
8
(Security over Lenders’ rights);
|
|
(viii) |
who is a Party; or
|
|
(ix) |
with the consent of the Borrower;
|
|
(c) |
to any person appointed by that Finance Party or by a person to whom paragraphs (b)(i) or (b)(ii) 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 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 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 Obligors
.
|
45.3 |
Entire agreement
|
45.4 |
Inside information
|
45.5 |
Notification of disclosure
|
|
(a) |
of the circumstances of any disclosure of Confidential Information made to 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 or the rules of any relevant stock exchange or pursuant to any applicable law or regulation pursuant to clause 45.2
(Disclosure of Confidential Information)
except where such disclosure is made to any such person during the ordinary course of its
supervisory or regulatory function; and
|
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this clause 45.
|
45.6 |
Continuing obligations
|
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents 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
.
|
46. |
Confidentiality of Funding Rates
|
46.1 |
Confidentiality and disclosure
|
|
(a) |
The Agent and each Obligor who is a Party agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by
paragraphs (b), (c) and (d) below.
|
|
(b) |
The 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 confident
i
ality undertaking agreed between
the Agent and the relevant Lender
.
|
|
(c) |
The Agent 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 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 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 Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances
;
|
|
(iii) |
any person to whom
information is
requ
i
red 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 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.
|
|
(d) |
The Borrower may disclose any Funding Rate to such person as such Funding Rate
is
required or requested to be disclosed by the US Securities and Exchange Commission rules and regulations.
|
46.2 |
Related obligations
|
|
(a) |
The 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 Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose
.
|
|
(b) |
The 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 clause 46.1(c)(ii)
(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 46
.
|
46.3 |
No Event of Default
|
47. |
Counterparts
|
48. |
Contractual recognition of 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.
|
49. |
Governing law
|
50. |
Enforcement
|
50.1 |
Jurisdiction of English courts
|
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute aris
i
ng out of or in connection with this Agreement or any non-contractual obligations connected with it (including a dispute regarding the existence, validity or termination of this Agreement) (a
Dispute
).
|
|
(b) |
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary
.
|
|
(c) |
Notwithstanding paragraph (a) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction.
To the extent allowed by law, the Finance Parties may take concurrent proceedings
i
n any number of jurisd
i
ctions.
|
50.2 |
Service of process
|
|
(a) |
irrevocably appoints the person named in Schedule 1
(The
original parties)
as that Obligor
’
s English process agent as its agent for service of process in relation to any proceedings
before the English courts in connection with any Finance Document;
|
|
(b) |
agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned; and
|
|
(c) |
if any person appointed as process agent for an Obligor is unable for any reason to act as agent for service of process, that Obligor must immediately (and in
any event within ten days of such event taking place) appoint another agent on terms accep
t
able to the Agent. Failing this, the Agent
may appo
i
nt another agent for this purpose.
|
Name:
|
Top Ships Inc.
|
Original Jurisdiction
|
The Republic of the Marshall Islands
|
Registration number (or
equivalent, if any
)
|
3571
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Address for service of notices
|
c/o Central Mare Inc.
1, Vas. Sofias Street & Meg. Alexandrou, 151 24 Maroussi, Greece Attn: Andreas Louka Email: louka@loukapartners.com Tel: +30 210 812 8320 |
English process agent (if not incorporated in England)
|
Top Properties (London) Limited
247 Gray’s Inn Road, London WC1X 8QZ, United Kingdom |
Name:
|
Astarte International Inc
.
|
Original Jurisdiction
|
The Republic of the Marshall Islands
|
Registration number (or
equivalent, if any
)
|
89977
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Address for service of notices
|
c/o Central Mare Inc.
1, Vas. Sofias Street & Meg. Alexandrou, 151 24 Maroussi, Greece Attn: Andreas Louka Email: louka@loukapartners.com Tel: +30 210 812 8320 |
English process agent (if not incorporated in England)
|
Top Properties (London) Limited
247 Gray’s Inn Road, London WC1X 8QZ, United Kingdom |
Name
|
Amsterdam Trade Bank N.V.
|
Commitment $
|
10,500
,
000
|
TOTAL $
|
10
,
500
,
000
|
Total Commitments $
|
10
,
500
,
000
|
TOTAL $
|
10,500,000
|
Name
|
Amsterdam Trade Bank N.V.
|
Facility Office, address and attention details for notices
|
Non-administrative matters
:
World Trade Center Tower I , Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Vassilis Kolovos / Mingli Zhu Email: v.kolovos@atbank .n l/m . zhu@atbank . nl Cc : shipping.finance@atbank.nl Telephone No .: +31 (0) 205 209 204 / +31 (0) 205 209 277
Administrative matters:
World Trade Center
Tower I , Level 6 |
Strawinskylaan 1939
1077 XX Amsterdam The Netherlands Attn: Vassilis Kolovos / Mingli Zhu Email: shipping.finance@atbank.nl Cc : v.kolovos@atbank.n l/m . zhu@atbank . nl Telephone No .: +31 (0) 205 209 204 / +31 (0) 205 209 277 |
Name
|
Amsterdam Trade Bank N.V.
|
Facility Office, address and attention details for notices
|
Non-administrative matters
:
World Trade Center Tower I , Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Vassilis Kolovos / Mingli Zhu Email: v.kolovos@atbank .n l/ m . zhu@atbank . nl Cc : shipping.finance@atbank.nl Telephone No .: +31 (0) 205 209 204 / +31 (0) 205 209 277
Administrative matters:
World Trade Center
Tower I , Level 6 Strawinskylaan 1939 1077 XX Amsterdam The Netherlands Attn: Vassilis Kolovos / Mingli Zhu Email: shipping.finance@atbank.nl Cc : i.tsirigotis@atbank.n l / v.kolovos@atbank.nl Telephone No .: +31 (0) 205 209 247 / +31 (0) 205 209 404/ +31 (0) 205 209 204 |
Name
|
Amsterdam Trade Bank N.V.
|
Facility Office, address and attention details for notices
|
Non-administrative matters
:
World Trade Center Tower I , Level 6 Strawinskylaan 1939 |
1077 XX Amsterdam
The Netherlands Attn: Vassilis Kolovos / Mingli Zhu Email: v.kolovos@atbank .n l/ m . zhu@atbank . nl Cc : shipping.finance@atbank.nl Telephone No .: +31 (0) 205 209 204 / +31 (0) 205 209 277 |
Owner:
|
PCH77 SHIPPING COMPANY LIMITED
|
Builder:
|
Hyundai Mipo Dockyard Co.
,
Ltd
.
|
Hull Number:
|
8218
|
Scheduled Delivery Date:
|
31 January 2019
|
IMO Number:
|
9843780
|
Owner:
|
PCH Dreaming Inc
.
|
Builder:
|
Hyundai Mipo Dockyard Co
.,
Ltd.
|
Hull Number:
|
8242
|
Scheduled Delivery Date:
|
13 March 2019
|
IMO Number:
|
9798349
|
Owner:
|
South California Inc
.
|
Builder:
|
Hyundai Samho Heavy Industries Co
.,
Ltd
.
|
Hull Number:
|
S874
|
Scheduled Delivery Date:
|
5 April 2019
|
IMO Number:
|
9794056
|
Owner:
|
Malibu Warrior Inc.
|
Builder:
|
Hyundai Samho Heavy Industries Co., Ltd.
|
Hull Number:
|
S875
|
Scheduled Delivery Date:
|
2 May 2019
|
IMO Number:
|
99794068
|
Owner:
|
Astarte International Inc.
|
Name of Ship:
|
Eco Palm Desert
|
Flag State:
|
The Republic of the Marshall Islands
|
Charter description:
|
"SHELLTIME 4" time charter dated 28 September 2017 made between Central Tankers Chartering Inc. (CTC) as disponent owner and the
Charterer, as time charterer as novated by CTC in favour of the Owner by means of a novation agreement dated 1 December 2018 made between the Owner, CTC and the Charterer
|
Charterer:
|
Shell Tankers Singapore Private Limited
|
Classification:
|
+100A1, Double Hull Oil and Chemical Tanker, Ship Type 2 and Ship Type 3, ESP, CSR, +LMC, UMS, *IWS, L1, SRM4, ECO (IHM,
P), NAV1, IGS, ShipRight (CM, ACS(B)) with descriptive notes COW(LR), ETA, ShipRight (BWMP(S)), SERS, SCM, VECS)
|
Classification Society:
|
Lloyds Register of Shipping
|
Major Casualty Amount:
|
$500,000
|
1. |
Original Obligors’ corporate documents
|
|
(a) |
A copy of the Constitutional Documents of each Original Obligor (other than the Charterer).
|
|
(b) |
A copy of a resolution of the board of directors of each Original Obligor other than the Charterer (or, if applicable, any committee of such board empowered
to approve and authorise the following matters):
|
|
(i) |
approving the terms of, and the transactions contemplated by, the Transaction Documents to which it is a party (its
Relevant Documents
) and resolving that it execute, deliver and perform the Relevant Documents to which it is a party;
|
|
(ii) |
authorising a specified person or persons to execute its Relevant Documents on its behalf; and
|
|
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request)
to be signed and/or despatched by it under or in connection with its Relevant Documents.
|
|
(c) |
If applicable, a copy of a resolution of the board of directors of the relevant company, establishing any committee referred to in paragraph (b) above and
conferring authority on that committee.
|
|
(d) |
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above in relation to its Relevant Documents and related
documents.
|
|
(e) |
A copy of a resolution signed by all the holders of the issued shares in each Original Obligor (other than the Charterer), approving the terms of, and the
transactions contemplated by, its Relevant Documents.
|
|
(f) |
A copy of a resolution of the board of directors of each corporate shareholder of each Original Obligor (other than the Charterer) approving the terms of the
resolution referred to in paragraph (e) above.
|
|
(g) |
A certificate of the Guarantor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not
cause any borrowing, guarantee, security or similar limit binding on any Original Obligor (other than the Charterer) to be exceeded.
|
|
(h) |
A copy of any power of attorney under which any person is appointed by any Original Obligor (other than the Charterer) to execute any of its Relevant
Documents on its behalf.
|
|
(i) |
A certificate of an authorised signatory of each relevant Original Obligor (other than the Charterer) certifying that each copy document relating to it
specified in this Part of this Schedule is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement and that any such resolutions or power of attorney
have not been revoked.
|
|
(j) |
A goodstanding certificate from the Marshall Islands competent authority in respect of the Borrower and the Guarantor (not more than 14 days before the
proposed first Utilisation Date).
|
2. |
Legal opinions
|
|
(a) |
A legal opinion of Norton Rose Fulbright Greece addressed to the Arranger, the Security Agent and the Agent on matters of English law, substantially in the
form approved by the Agent prior to signing this Agreement.
|
|
(b) |
A legal opinion of the legal advisers to the Arranger, the Security Agent and the Agent in England and also each jurisdiction in which an Obligor is
incorporated or in which an Account opened at the relevant time is established substantially in the form approved by the Agent prior to signing this Agreement.
|
|
(c) |
A legal opinion of the legal advisers to the Security Agent and the Agent in each jurisdiction (other than England and Wales) in which is or is to be the Flag
State of the Collateral Ship, substantially in the form approved by the Agent prior to signing this Agreement.
|
3. |
Other documents and evidence
|
|
(a) |
Evidence that any process agent referred to in clause 50.2
(Service
of process)
or any equivalent provision of any other Finance Document entered into on or before the first Utilisation Date, if not an Original Obligor, has accepted its appointment.
|
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary (if it has notified the Borrower
accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
|
(c) |
The Fee Letters duly executed and evidence that the fees, commissions, costs and expenses then due from the Borrower pursuant to clause 12
(Fees)
and clause 17
(Costs and
expenses)
have been paid or will be paid by the first Utilisation D ate.
|
4. |
Collateral Documents
|
5. |
Delivery and registration of Ship
|
|
(a) |
is legally and beneficially owned by the Guarantor and registered in the name of the Guarantor through the Registry as a ship under the laws and flag of the
Flag State;
|
|
(b) |
is classed with the Classification free of all requirements and recommendations of the Classification Society;
|
|
(c) |
is insured in the manner required by the Finance Documents;
|
|
(d) |
has been delivered, and accepted for service, under its Charter; and
|
|
(e) |
is free of any other charter commitment which would require approval under the Finance Documents.
|
6. |
Mortgage registration
|
7. |
Insurance
|
|
(a) |
an opinion from insurance consultants appointed by the Agent on such Insurances;
|
|
(b) |
evidence that such Insurances have been placed in accordance with clause 25
(Insurance);
and
|
|
(c) |
evidence that approved brokers, insurers and/or associations have issued or will issue letters of undertaking in favour of the Security Agent in an approved
form in relation to the Insurances.
|
8. |
ISM and ISPS Code
|
|
(a) |
the document of compliance issued in accordance with the ISM Code to the person who is the operator of the Collateral Ship for the purposes of that code;
|
|
(b) |
the safety management certificate in respect of the Collateral Ship issued in accordance with the ISM Code;
|
|
(c) |
the international ship security certificate in respect of the Collateral Ship issued under the ISPS Code; and
|
|
(d) |
if so requested by the Agent, any other certificates issued under any applicable code required to be observed by the Collateral Ship or in relation to its
operation under any applicable law.
|
9. |
Fees and expenses
|
10. |
Subordination Deed
|
11. |
Management Agreement
|
12. |
Bank Account
|
13. |
“Know your customer” information
|
14. |
Disclosed Persons
|
15. |
Post-delivery financing
|
16. |
Family Trading Facility
|
|
(a) |
can draw an amount in dollars of not less than $25,000,000 at any time;
|
|
(b) |
cannot repay the Family Trading Facility before the Reduction Date,
|
1. |
Corporate documents
|
|
(a) |
A certificate of an authorised signatory of the Borrower certifying that each copy document relating to it specified in Part 1 of this Schedule remains
correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose and that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or
amended.
|
|
(b) |
A certificate of an authorised signatory of each other Obligor which is party to any of the Original Security Documents required to be executed at or before
drawdown certifying that each copy document relating to it specified in Part 1 of this Schedule remains correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose and that any
resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or amended.
|
|
(c) |
A goodstanding certificate from the Marshall Islands competent authority in respect of the Borrower and the Guarantor (not more than 14 days before the
proposed Utilisation Date relating to the Relevant Loan).
|
2. |
Fees and expenses
|
From:
|
TOP SHIPS INC.
|
To:
|
Amsterdam Trade Bank N.V.
|
Dated:
|
[•]
|
1. |
We refer to the Facility Agreement. This is a Utilisation Request. Terms defined in the Facility Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.
|
2. |
We wish to borrow a Loan on the following terms:
|
Proposed Utilisation Date:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
|
Amount:
|
$[•]
|
3. |
We confirm that each condition specified in clause 4.4
(Further
conditions precedent)
is satisfied on the date of this Utilisation Request.
|
4. |
The purpose of this Loan is [
specify purpose complying with
clause 3 of the Facility Agreement
] [and/or to repay a Loan maturing on the proposed Utilisation Date] [and its proceeds should be credited to[•] [
specify account
]].
|
5. |
This Utilisation Request is irrevocable.
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
[
The Existing Lender
] (the
Existing Lender
) and [
The New Lender
]
(the
New Lender
)
|
Dated:
|
|
1. |
We refer to the Facility Agreement. This agreement (the
Agreement
) shall take effect as a Transfer Certificate for
the purposes of the Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
2. |
We refer to clause 30.6
(Procedure for assignment)
of
the Facility Agreement:
|
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Facility Agreement and the other Finance Documents
which correspond to that portion of the Existing Lender’s Commitment and participation in any Loan under the Facility Agreement as specified in the Schedule.
|
|
(b) |
The Existing Lender is released from the obligations owed by it which correspond to that portion of the Existing Lender’s Commitment and participation in any
Loan under the Facility Agreement specified in the Schedule (but the obligations owed by the Obligors under the Finance Documents shall not be released).
|
|
(c) |
On the Transfer Date 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) |
The proposed Transfer Date is[•].
|
|
(e) |
The Facility Office and address and attention details for notices of the New Lender for the purposes of clause 40.2
(Addresses)
of the Facility Agreement are set out in the Schedule.
|
3. |
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in clause 30.5
(Limitation of responsibility of Existing Lenders)
of the Facility Agreement.
|
4. |
The New Lender confirms that it [is]/ [is not] a Borrower Affiliate.
|
5. |
This Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with clause 30.7
(Copy of Transfer Certificate to Borrower),
to the Borrower (on behalf of each Obligor) of the assignment referred to in this Agreement.
|
6. |
This 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 Agreement.
|
7. |
This Agreement and any non-contractual obligations connected with it are governed by English law.
|
8. |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
By:
|
By:
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
[The Lender]
|
1. |
We refer to clause 44.9
(Disenfranchisement of Borrower
Affiliates)
of the Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this notice unless given a different meaning in this notice.
|
2. |
We have entered into a Notifiable Debt Purchase Transaction.
|
3. |
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to the amount of our Commitment as set out below.
|
1. |
We refer to clause 44.9
(Disenfranchisement of Borrower
Affiliates)
of the Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this notice unless given a different meaning in this notice.
|
2. |
A Notifiable Debt Purchase Transaction which we entered into and which we notified you of in a notice dated [•] has [terminated]/ [ceased to be with a
Borrower Affiliate].*
|
3. |
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to the amount of our Commitment as set out below.
|
To:
|
Amsterdam Trade Bank N.V. as Agent
|
From:
|
TOP SHIPS INC. as Borrower
|
1. |
We refer to the Facility Agreement. This is a Compliance Certificate. Terms defined in the Facility Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2. |
We confirm that:
|
|
(a) |
Leverage
: the ratio of Total Net Debt to Fleet Market
Value in respect of the Group was [•]:1.00, calculated as shown in [Appendix A] versus a maximum required ratio of 0.75:1.00 [
attach
relevant evidence
]; and
|
|
(b) |
Minimum liquidity
: the Group’s Cash and Cash
Equivalents were [•] calculated as shown in [Appendix B] versus a minimum required aggregate amount of (i) $750,000 per Fleet Vessel and (ii) $500,000 per Chartered Vessel [
attach relevant evidence
].
|
3. |
[We confirm that no Default is continuing.] [If this statement cannot be made, the certificate should identify any Default that is continuing and the steps,
if any, being taken to remedy it.]
|
THE BORROWER
|
|
TOP SHIPS INC.
|
|
By: /s/ Andreas Louka
|
|
THE GUARANTOR
|
|
ASTARTE INTERNATIONAL INC.
|
|
By: /s/ Andreas Louka
|
|
THE ARRANGER
|
|
AMSTERDAM TRADE BANK N.V.
|
|
By:
|
|
THE AGENT
|
|
AMSTERDAM TRADE BANK N.V.
|
|
By:
|
|
THE SECURITY AGENT
|
|
AMSTERDAM TRADE BANK N.V.
|
|
By:
|
|
THE LENDERS
|
|
AMSTERDAM TRADE BANK N.V.
|
|
By:
|
|
Confidential
|
Execution Version
|
||
Dated 21 March 2019
|
|||
TOP SHIPS INC.
and AMSTERDAM TRADE BANK N.V. and THE NOTE PURCHASERS A PARTY HERETO and ASTARTE INTERNATIONAL INC. |
|||
NOTE PURCHASE DEED
|
Clause
|
Page
|
1
|
Definitions and interpretation
|
1
|
2
|
Issue of the Notes
|
2
|
3
|
Agreement of the Note Purchasers
|
3
|
4
|
Note Issuance and Use of Proceeds
|
4
|
5
|
Representations and Warranties
|
4
|
6
|
Obligor Covenants
|
6
|
7
|
Conditions Precedent
|
6
|
8
|
Interest and Redemption
|
11
|
9
|
Tax Gross-Up and Indemnities
|
18
|
10
|
Increased Costs
|
23
|
11
|
Other Indemnities
|
25
|
12
|
Mitigation by the Note Purchasers
|
29
|
13
|
Cost and Expenses
|
29
|
14
|
Guarantee and Indemnity
|
31
|
15
|
Events of Default
|
34
|
16
|
Application of Proceeds
|
35
|
17
|
Conduct of Business by the Finance Parties
|
38
|
18
|
Survival of Representations and Obligations
|
39
|
19
|
Assignment and Transfers
|
39
|
20
|
Roles of Agent, Security Agent and Registrar
|
42
|
21
|
Registrar
|
47
|
22
|
Time; Payments
|
49
|
23
|
Notices
|
50
|
24
|
Calculations and Certificates
|
54
|
25
|
Miscellaneous
|
54
|
26
|
Confidential Information
|
55
|
27
|
Governing Law
|
58
|
28
|
Jurisdiction
|
58
|
Schedule 1 The Note Purchasers
|
62
|
Schedule 2 Form of Note Issue Notice
|
63
|
Schedule 3 Representations and Warranties of the Obligors
|
65
|
Schedule 4 Covenants of the Obligor
|
76
|
Schedule 5 Form of Deed of Accession
|
108
|
Schedule 6 Form of Compliance Certificate
|
114
|
Schedule 7 Form of Note Certificate
|
115
|
Schedule 8 Definitions and Interpretation
|
118
|
Schedule 9 Ship Information
|
150
|
Schedule 10 Payment Mechanics
|
152
|
(1) |
TOP SHIPS INC.
, a company incorporated under the laws
of the Republic of the Marshall Islands, registered number 3571, whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH9696 (the
Issuer
);
|
(2) |
AMSTERDAM TRADE BANK N.V.
, a company incorporated in
the Netherlands, registered number 33260432 whose address for the purposes of this Note Purchase Deed is World Trade Center, Tower I, Level 6, Strawinskylaan 1939, 1077 XX Amsterdam, The Netherlands, in its capacity as Security Agent
(the
Security Agent
);
|
(3) |
AMSTERDAM TRADE BANK N.V.
, a company incorporated in
the Netherlands, registered number 33260432 whose address for the purposes of this Note Purchase Deed is World Trade Center, Tower I, Level 6, Strawinskylaan 1939, 1077 XX Amsterdam, The Netherlands, in its capacity as Agent (the
Agent
) and Registrar (the
Registrar
);
|
(4) |
the institution(s) listed in Schedule 1 (
the Note
Purchasers
) hereto as note purchaser (the
Note Purchaser
); and
|
(5) |
ASTARTE INTERNATIONAL INC.
, a company incorporated
under the laws of the Republic of the Marshall Islands, registered number 89977, whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH9696 (the
Guarantor
).
|
(A) |
The Issuer has authorised the creation and issue of floating rate notes pursuant to the terms and conditions of this Note Purchase Deed.
|
(B) |
Upon the terms and subject to the conditions of this Note Purchase Deed, the Issuer shall issue, and the Note Purchasers shall purchase the floating rate
notes.
|
1. |
Definitions and interpretation
|
1.1 |
Unless otherwise defined in this Note Purchase Deed or the context requires otherwise, words and expressions used in this Note Purchase Deed have the
meanings and constructions ascribed to them in Part 1 of Schedule 8 (
Definitions and Interpretation
).
|
1.2 |
Interpretation
|
1.3 |
Save as expressly provided herein, any warranties or undertakings provided under this Note Purchase Deed are made to each other party to this Note Purchase
Deed.
|
2. |
Issue of the Notes
|
2.1 |
Agreement to Issue
|
2.2 |
Issue Price
|
2.3 |
Form of Note
|
|
(a) |
Each Note shall be issued by the Issuer in registered form without coupons or talons and shall be:
|
|
(i) |
represented by a Note Certificate executed by, or on behalf of, the Issuer;
|
|
(ii) |
denominated in US Dollars;
|
|
(iii) |
dated the Closing Date;
|
|
(iv) |
payable to the order of the Note Purchasers; and
|
|
(v) |
transferable in accordance with the provisions of clauses 19.1 (
Voluntary Transfers by Note Purchasers
) and 19.2 (
Transfer Procedure
).
|
|
(b) |
Entry in the Register of a Note Purchaser as the Note Purchaser of a Note is, in the absence of manifest error, conclusive evidence of its title to and
ownership of such Note. Any Note Certificate will be evidence of entitlement only. In the event of any inconsistency between a Note Certificate or other evidence of title and an entry in the Register, the entry in the Register shall
always govern. Title to a Note will pass upon registration of the transfer in the Register.
|
2.4 |
Constitution of the Notes and authentication of Certificated
Notes
|
|
(a) |
The Issuer hereby constitutes each of the Notes and covenants in favour of the Note Purchasers that it will pay to the Note Purchasers the principal amount
of each Note on the Final Maturity Date of such Note and that it will duly perform and comply with the other terms and conditions of the Notes.
|
|
(b) |
The covenant set forth in sub-clause (a) above shall take effect as a deed poll for the benefit of the Note Purchasers from time to time and shall enure to
the benefit of the Note Purchasers who shall be entitled severally to enforce the covenant set forth in sub-clause (a) above.
|
|
(c) |
The Issuer shall deliver the unauthenticated Certificated Note to or to the order of the Registrar for authentication by an authorised signatory by or on
behalf of the Registrar and the Registrar shall authenticate Certificated Notes pursuant to this Note Purchase Deed.
|
2.5 |
Lost, stolen and mutilated Certificated Notes
|
3. |
Agreement of the Note Purchasers
|
3.1 |
Subscription and Purchase
|
3.2 |
Rights
|
3.3 |
Obligations
|
4. |
Note Issuance and Use of Proceeds
|
4.1 |
Note Issuance
|
|
(a) |
Subject to the terms and conditions of this Note Purchase Deed, the Issuer shall offer to issue the Notes by delivering to each Note Purchaser, not later
than 1:00 p.m. three (3) Business Days prior to the Closing Date, a duly completed Note Issue Notice. The Note Issue Notice shall be irrevocable and shall, among other things:
|
|
(i) |
specify the principal amount of the Notes denominated in US Dollars, after giving effect to the Note Issue Notice;
|
|
(ii) |
certify that the applicable conditions in clauses 7.1 (
Conditions
Precedent to Issue of Notes
) and 7.2 (
Notice of satisfaction of conditions
) have been satisfied; and
|
|
(iii) |
specify the Closing Date and the Final Maturity Date of the Notes.
|
4.2 |
Payment
|
4.3 |
Use of Proceeds
|
5. |
Representations and Warranties
|
5.1 |
Representations and Warranties by the Obligors
|
5.2 |
Relevance
|
5.3 |
Representations by the Note Purchasers
|
|
(a) |
No Public Sale or Distribution
. Such Note Purchaser
is acquiring each Note (i) in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the
1933 Act
), and Rule 506(b) of Regulation D (
Regulation D
) as promulgated by the United States
Securities and Exchange Commission (the
SEC
) under the 1933 Act and (ii) for its own account and not with a view towards, or for
resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant to sales registered or exempted under the 1933 Act;
provided
, however, by making the representations herein, such Note Purchaser does not agree, or make any representation or warranty, to hold any of the Notes for any minimum or other
specific term and reserves the right to dispose of the Notes at any time in accordance with or pursuant to a registration statement or an exemption from registration under the 1933 Act. Such Note Purchaser does not presently have any
agreement or understanding, directly or indirectly, with any person to distribute any of the Notes in violation of applicable securities laws.
|
|
(b) |
Accredited Investor Status
. Such Note Purchaser is
an “accredited investor” as that term is defined in Rule 501(a) of Regulation D.
|
|
(c) |
Reliance on Exemptions
. Such Note Purchaser
understands that the Notes are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Issuer is relying in part upon the truth
and accuracy of, and such Note Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Note Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of such Note Purchaser to acquire the Notes.
|
|
(d) |
Information
. Such Note Purchaser and its advisors,
if any, have been furnished with all materials relating to the business, finances and operations of the Issuer and materials relating to the offer and sale of the Notes that have been requested by such Note Purchaser. Such Note
Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the Issuer. Neither such inquiries nor any other due diligence investigations conducted by such Note Purchaser or its advisors, if any, or its
representatives shall modify, amend or affect such Note Purchaser’s right to rely on the Obligors’ representations and warranties contained herein. Such Note Purchaser understands that its investment in the Notes involves a high
degree of risk. Such Note Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Notes.
|
|
(e) |
No Governmental Review
. Such Note Purchaser
understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Notes or the fairness or suitability of the investment in the
Notes nor have such authorities passed upon or endorsed the merits of the offering of the Notes.
|
|
(f) |
No Registration
. Such Note Purchaser understands
that (i) the Notes have not been and are not being registered under the 1933 Act or any state securities laws, and (ii) neither the Issuer nor any other Person is under any obligation to register the Notes under the 1933 Act or any
state securities laws or to comply with the terms and conditions of any exemption thereunder.
|
6. |
Obligor Covenants
|
7. |
Conditions Precedent
|
7.1 |
Condition Precedent to Issue of Notes:
|
|
(a) |
Original Obligors’ corporate documents:
|
|
(i) |
A copy of the Constitutional Documents of each Original Obligor (other than the Charterer).
|
|
(ii) |
A copy of a resolution of the board of directors of each Original Obligor other than the Charterer (or, if applicable, any committee of such board empowered
to approve and authorise the following matters):
|
|
(A) |
approving the terms of, and the transactions contemplated by, the Transaction Documents to which it is a party (its
Relevant Documents
) and resolving that it will execute, deliver and perform the Relevant Documents to which it is a party;
|
|
(B) |
authorising a specified person or persons to execute its Relevant Documents on its behalf; and
|
|
(C) |
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 its Relevant Documents.
|
|
(iii) |
If applicable, a copy of a resolution of the board of directors of the relevant company, establishing any committee referred to in sub-clause 7.1(a)(ii)
above and conferring authority on that committee.
|
|
(iv) |
A specimen of the signature of each person authorised by the resolution referred to in sub-clause 7.1(a)(ii) above in relation to its Relevant Documents and
related documents.
|
|
(v) |
A copy of a resolution signed by all the holders of the issued shares in each Original Obligor (other than the Charterer), approving the terms of, and the
transactions contemplated by, its Relevant Documents.
|
|
(vi) |
A copy of a resolution of the board of directors of each corporate shareholder of each Original Obligor (other than the Charterer) approving the terms of
the resolution referred to in sub-clause 7.1(a)(v) above.
|
|
(vii) |
A certificate of the Guarantor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Notes would not cause any
borrowing, guarantee, security or similar limit binding on any Original Obligor (other than the Charterer) to be exceeded.
|
|
(viii) |
A copy of any power of attorney under which any person is appointed by any Original Obligor (other than the Charterer) to execute any of its Relevant
Documents on its behalf.
|
|
(ix) |
A certificate of an authorised signatory of each relevant Original Obligor (other than the Charterer) certifying that each copy document relating to it is
correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Note Purchase Deed and that any such resolutions or power of attorney have not been revoked.
|
|
(x) |
A goodstanding certificate from the Marshall Islands competent authority in respect of the Issuer and the Guarantor (not more than 14 days before the
proposed Closing Date).
|
|
(b) |
Legal opinions:
The following legal opinions, each
addressed to the Agent, the Security Agent and the Note Purchaser and capable of being relied upon by any persons who become a Note Purchaser pursuant to the transfer by the Note Purchaser of any Notes in accordance with the terms of
this Note Purchase Deed:
|
|
(i) |
A legal opinion of Norton Rose Fulbright LLP addressed to the Security Agent and the Agent on matters of English law, substantially in the form approved by
the Agent prior to signing this Note Purchase Deed.
|
|
(ii) |
A legal opinion of the legal advisers to the Security Agent and the Agent on matters of law in each jurisdiction in which an (A) Obligor is incorporated and
(B) Account opened at the relevant time is established, substantially in the form approved by the Agent prior to signing this Note Purchase Deed.
|
|
(iii) |
A legal opinion of the legal advisers to the Security Agent and the Agent in each jurisdiction (other than England and Wales) in which is or is to be the
Flag State of the Collateral Ship, substantially in the form approved by the Agent prior to signing this Note Purchase Deed.
|
|
(c) |
Other documents and evidence:
|
|
(i) |
Evidence that any process agent referred to in clause 28.2 (
Service
of process
) or any equivalent provision of any other Finance Document entered into on or before the date of this Note Purchase Deed, if not an Original Obligor, has accepted its appointment.
|
|
(ii) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary (if it has notified the Issuer
accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
|
(d) |
Collateral documents:
each Collateral Document (and
any notices and acknowledgements thereunder) are duly executed.
|
|
(e) |
Delivery and registration of Ship:
evidence that the
relevant Ship:
|
|
(i) |
is legally and beneficially owned by the Guarantor and registered in the name of the Guarantor through the Registry as a ship under the laws and flag of the
Flag State;
|
|
(ii) |
is classed with the Classification free of all requirements and recommendations of the Classification Society;
|
|
(iii) |
is insured in the manner required by the Finance Documents;
|
|
(iv) |
has been delivered, and accepted for service, under its Charter; and
|
|
(v) |
is free of any other charter commitment which would require approval under the Finance Documents.
|
|
(f) |
Mortgage registration:
evidence that the Mortgage
has been registered against the Collateral Ship through the Registry under the laws and flag of the Flag State.
|
|
(g) |
Insurance:
in relation to the Insurances:
|
|
(i) |
an opinion from insurance consultants appointed by the Agent on such Insurances;
|
|
(ii) |
evidence that such Insurances have been placed in accordance with paragraph 6 (
Insurance
) of Schedule 4 (
Covenants of the Obligors
); and
|
|
(iii) |
evidence that approved brokers, insurers and/or associations have issued or will issue letters of undertaking in favour of the Security Agent in an approved
form in relation to the Insurances.
|
|
(h) |
ISM and ISPS Code:
copies of:
|
|
(i) |
the document of compliance issued in accordance with the ISM Code to the person who is the operator of the Collateral Ship for the purposes of that code;
|
|
(ii) |
the safety management certificate in respect of the Collateral Ship issued in accordance with the ISM Code;
|
|
(iii) |
the international ship security certificate in respect of the Collateral Ship issued under the ISPS Code; and
|
|
(iv) |
if so requested by the Agent, any other certificates issued under any applicable code required to be observed by the Collateral Ship or in relation to its
operation under any applicable law.
|
|
(i) |
Deed of Amendment:
the Deed of Amendment to the
Subordination Deed duly executed by all parties to it.
|
|
(j) |
Management Agreement:
where a manager of the
Collateral Ship has been approved in accordance with paragraph 4.9 (
Manager
) of Schedule 4 (
Covenants of the Obligors
), a copy, certified by an approved person to be a true and complete copy, of the agreement between the Guarantor and the manager
relating to the appointment of the manager.
|
|
(k) |
Bank Account:
evidence that any Account required to
be established under paragraph 8 (
Bank accounts
) of Schedule 4 (
Covenants of the Obligors
), has been opened and established by the Issuer and the Guarantor, respectively, that any Account Security in respect of each such Account has been executed and
delivered by the Issuer and the Guarantor, respectively, and that any notice required to be given to an Account Bank under that Account Security has been given to it and acknowledged by it in the manner required by that Account
Security and that an amount has been credited to it.
|
|
(l) |
Know your customer information:
such documentation
and information as any Finance Party may reasonably request through the Agent to comply with “know your customer” or similar identification procedures under all laws and regulations applicable to that Finance Party.
|
|
(m) |
Disclosed persons:
evidence in form and substance
satisfactory to the Agent of who are the persons controlling the Issuer as at the date of this Note Purchase Deed, including written evidence of their identity.
|
|
(n) |
Post-delivery financing:
evidence in form and
substance satisfactory to the Agent of the Issuer having agreed with third party financiers committed post-delivery financing for the Eco California Ship and the Eco Marina Del Ray Ship.
|
|
(o) |
Family Trading Facility:
evidence in form and
substance satisfactory to the Agent, which shall include a certified true and complete copy of the Family Trading Facility agreement, that under the terms of the Family Trading Facility agreement the Issuer:
|
|
(i) |
can draw an amount in dollars of not less than $25,000,000 at any time;
|
|
(ii) |
cannot repay the Family Trading Facility before the Final Maturity Date,
|
|
(p) |
No Default or Event of Default under Existing Loan Facility:
no Default or Event of Default (each as defined in the Existing Loan Facility) under the Existing Loan Facility has occurred and no event exists, or would occur from the issuance of the Notes.
|
|
(q) |
Representations:
all of the representations set out
in Schedule 3 (
Representations and Warranties of the Obligors
) are true.
|
7.2 |
Notice of satisfaction of conditions
|
7.3 |
Waiver
|
8. |
Interest and Redemption
|
8.1 |
Interest
|
|
(a) |
Interest Payment Date:
Each Note bears interest on
its Principal Balance from (and including) the Closing Date, payable in arrear in US Dollars on each Interest Payment Date for the relevant Interest Period; provided that the first Interest Payment Date shall be 4 June 2019 for the
first Interest Period.
|
|
(b) |
Interest Periods:
Each Interest Period shall have a
duration of three months and shall begin on the day immediately following the last day of the immediately preceding Interest Period, provided that:
|
|
(i) |
the first Interest Period shall begin on the Closing Date and end on 4 June 2019; and
|
|
(ii) |
no Interest Period shall extend beyond the Final Maturity Date.
|
|
(c) |
Interest Rate:
The rate of interest payable from
time to time in respect of the Principal Balance of each Note (the
Interest Rate
) for each Interest Period is the percentage rate
per annum which is aggregate of the applicable:
|
|
(i) |
Margin; and
|
|
(ii) |
LIBOR for the relevant Interest Period.
|
|
(d) |
Determination of Rates of Interest and Interest Amounts:
With
respect to the Notes, the Agent shall, on each Determination Date, determine and by no later than 11:00 a.m. notify to the Issuer:
|
|
(i) |
the Interest Rate applicable with respect to the Principal Balance of each Note for the relevant Interest Period;
|
|
(ii) |
the aggregate amount of interest due on the Principal Balance of each Note for the relevant Interest Period which shall be an amount equal to:
|
|
(A) |
an amount equal to the product of (1) the Interest Rate applicable to such Principal Balance and (2) the Principal Balance of such Note on the first day of
the relevant Interest Period (after giving effect to any Note principal payments made on that date),
|
|
(B) |
the applicable Day Count Convention (the
Interest Amount
).
|
|
(iii) |
any fees payable to each Note Purchaser (including pursuant to clause 8.2(k) (
Termination Fee
) below) or otherwise payable to Amsterdam Trade Bank N.V. in any other capacity under the Finance Documents.
|
|
(e) |
Default Interest
|
|
(i) |
If an Obligor fails to pay any amount payable by it under a Finance Document to a Finance Party on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to sub-clause 8.1(e)(iii) below, is 2 per cent per annum higher than the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Note for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).
|
|
(ii) |
Any interest accruing under this clause 8.1(e) shall be immediately payable by the Obligor on demand by the Agent.
|
|
(iii) |
If any overdue amount consists of all or part of a Note which became due on a day which was not the last day of an Interest Period relating to that Note:
|
|
(A) |
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Note;
and
|
|
(B) |
the rate of interest applying to the overdue amount during that first Interest Period shall be 2 per cent per annum higher than the rate which would have
applied if the overdue amount had not become due.
|
|
(iv) |
Default interest payable under this clause 8.1(e) (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
|
(f) |
Changes to the calculation of interest
|
|
(i) |
Unavailability of Screen Rate: If no Screen Rate is available for LIBOR for an Interest Period, LIBOR shall be the Interpolated Screen Rate for a period
equal in length to that Interest Period. If no Screen Rate is available for LIBOR for (A) dollars or (B) the relevant Interest Period and it is not possible to calculate the Interpolated Screen Rate, there shall be no LIBOR for that
Interest Period and sub-clause 8.1(f)(iii) shall apply for that interest period.
|
|
(ii) |
Market disruption: If before close of business in London on the Determination Date for an Interest Period the Agent receives notifications from a Note
Purchaser that the cost to it of funding its participation in that Note from whatever source it may reasonably select would be in excess of LIBOR then sub-clause 8.1(f)(iii) shall apply to that Note for the relevant Interest Period.
|
|
(iii) |
Cost of funds:
|
|
(A) |
If this sub-clause 8.1(f)(iii) applies, the Interest Rate on the Note for the Interest Period shall be the percentage rate per annum which is the sum of:
|
|
(1) |
the Margin; and
|
|
(2) |
the rate notified to the Agent by that Note Purchaser as soon as practicable and in any event within ten Business Days of the first day of that Interest
Period (or, if earlier, on the date falling ten Business
|
|
(B) |
If this sub-clause 8.1(f)(iii) applies and the Agent or the Issuer so require, the Agent and the Issuer shall enter into negotiations (for a period of not
more than 30 days) with a view to agreeing a substitute basis for determining the Interest Rate.
|
|
(C) |
Any alternative basis agreed pursuant to sub-clause 8.1(f)(iii)(A)(2) above shall, with the prior written consent of all of the Note Purchasers and the
Issuer, be binding on the Parties.
|
|
(D) |
If this sub-clause 8.1(f)(iii) applies pursuant to sub-clause 8.1(f)(ii) above, and: (A) a Note Purchaser’s Funding Rate is less than LIBOR; or (B) a Note
Purchaser does not supply a quotation by the time specified in sub-clause 8.1(f)(iii)(B) above, the cost to that Note Purchaser of funding its participation in the Notes for that Interest Period shall be deemed, for the purposes of
sub-clause 8.1(f)(iii)(A)(1) above, to be LIBOR.
|
|
(iv) |
Notification to the Issuer: if sub-clause 8.1(f)(iii) above applies, the Agent shall, as soon as is practicable, notify the Issuer and provide to the Issuer
evidence of the cost in relation to a Note Purchaser of funding its participation in the Notes for the purpose of determining the Interest Rate under sub-clause 8.1(f)(iii)(D) (such evidence to not be contested by the Issuer).
|
|
(v) |
Break Costs:
|
|
(A) |
The Issuer shall, within five Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a
Note being paid by the Issuer on a day other than the last day of an Interest Period for such Note.
|
|
(B) |
Each Note Purchaser shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount and basis of
calculation of its Break Costs for any Interest Period in which they accrue.
|
8.2 |
Redemption
|
|
(a) |
Final Redemption:
Unless previously redeemed in full
and cancelled, each Note will be redeemed at its Principal Balance, together with interest accrued thereon, on its Final Maturity Date, subject as provided in this clause 8.2 (
Redemption
).
|
|
(b) |
Mandatory Redemption:
if after the date of this Note
Purchase Deed, the Issuer:
|
|
(i) |
raises equity capital from its shareholders (other than by means of converting any then current Financial Indebtedness, excluding any Notes issued pursuant
to this Note Purchase Deed, into common shares in the Issuer or preferred shares in the Issuer not paying any cash dividend) or otherwise, it shall make a prepayment of the Notes in an aggregate amount in dollars equal to the lesser
of (A) the Principal Balance outstanding of the Notes at the time and (B) the higher of (I) 25 per cent of the equity capital so raised and (II) the amount by which the Family Trading Facility is reduced by the proceeds of any such
equity capital so raised; or
|
|
(ii) |
incurs any Financial Indebtedness (other than (A) from its shareholders, (B) debt finance incurred for the sole purpose of refinancing any existing
indebtedness of the Group and secured by means of a mortgage over a Fleet Vessel and (C) debt finance incurred for the purposes of paragraph 9.13 (
Capital Expenditures
) of Schedule 4 (
Covenants of the Obligors
), it shall make a prepayment of the Notes in an
aggregate amount equal to the lesser of (I) the Principal Balance of the Notes outstanding at the time and (II) the Financial Indebtedness so incurred.
|
|
(c) |
Optional Redemption for tax gross-up or increased costs
:
If:
|
|
(i) |
any sum payable for any Note Purchaser by an Obligor is required to be increased under clause 9.2 (
Tax gross-up
); or
|
|
(ii) |
any Note Purchaser claims indemnification from the Issuer under clause 9.3 (
Tax indemnity
) or clause 10 (
Increased Costs
),
|
|
(A) |
the Issuer has given not more than 30 nor less than 20 days’ notice to the Registrar, the Agent and the Note Purchaser(s); and
|
|
(B) |
the Issuer has delivered to the Agent prior to the giving of the notice referred to it sub-clause 8.2(c)(i) a certificate signed by two directors of the
Issuer to the effect that it will have sufficient funds, not subject to the interest of any other person, available to pay the Principal Balance of all the Notes together with interest and other amounts accrued to the date fixed for
redemption and to discharge any amounts required under the Pre-Enforcement Payment Mechanics to be paid in priority to, or pari passu with, the Notes on the date fixed for redemption.
|
|
(d) |
Optional Redemption in Full:
The Issuer may redeem
all, but not some only, of the Notes at their Principal Balance together with interest and other amounts (if any) accrued to the date fixed for redemption (which must be an Interest Payment Date); provided that:
|
|
(i) |
the Issuer has given not more than 30 nor less than 20 days’ notice to the Registrar, the Agent and the Note Purchaser(s);
|
|
(ii) |
the Issuer has delivered to the Agent prior to the giving of the notice referred to it sub-clause 8.2(d)(i) a certificate signed by two directors of the
Issuer to the effect that it will have sufficient funds, not subject to the interest of any other person, available to pay the Principal Balance of all the Notes together with interest and other amounts if any, accrued to the date
fixed for redemption and to discharge any amounts required under the Pre-Enforcement Payment Mechanics to be paid in priority to, or pari passu with, the Notes on the date fixed for redemption.
|
|
(e) |
Optional Redemption in Part:
The Issuer may prepay
the Principal Balance of the Notes in part on any Interest Payment Date; provided that:
|
|
(i) |
the Principal Balance after giving effect to such redemption is at least $500,000 and in multiples of $500,000;
|
|
(ii) |
the Issuer notifies the Agent of the principal amount of such prepayment by no later than two (2) Business Days prior to the relevant Interest Payment Date;
and
|
|
(iii) |
the Issuer has delivered to the Agent prior to the giving of the notice referred to it sub-clause 8.2(e)(i) a certificate to the effect that the Issuer will
have sufficient funds, not subject to the interest of any other person, available to pay the Principal Balance of such prepayment together with interest and other amounts, if any, accrued to the date fixed for redemption and to
discharge any amounts required under the Pre-Enforcement Payment Mechanics to be paid in priority to, or pari passu with, such prepayment on the date fixed for redemption.
|
|
(f) |
Redemption due to Illegality:
If, in any applicable
jurisdiction, it becomes unlawful for a Note Purchaser to perform any of its obligations as contemplated by this Note Purchase Deed or to hold the Notes or it becomes unlawful for any Affiliate of a Note Purchaser for that Note
Purchaser to do so:
|
|
(i) |
that Note Purchaser shall promptly notify the Agent upon becoming aware of that event;
|
|
(ii) |
upon the Agent notifying the Issuer, the Issuer shall repay the Principal Balance of that Note Purchaser’s Notes on the last day of the Interest Period
occurring after the Agent has notified the Issuer or, if earlier, the date specified by the relevant Note Purchaser in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by
law).
|
|
(g) |
Note principal payments and Principal Balance:
On each Determination Date, the Agent shall:
|
|
(i) |
determine the Principal Balance of each Note after giving effect to any Note principal payment to be made on the Interest Payment Date immediately following
such Determination Date; and
|
|
(ii) |
cause each determination of the Principal Balance and, if any, the amount of any Note principal payment (if any) for the Notes due on the Interest Payment
Date immediately following such Determination Date to be notified to the Issuer.
|
|
(h) |
Notice of Redemption:
A notice of redemption under
this clause 8.2 (
Redemption
) shall be irrevocable and the Issuer shall be bound to redeem the Notes on the relevant redemption
date in accordance with such notice.
|
|
(i) |
Cancellation:
All Notes redeemed in full pursuant to
this clause 8.2 (
Redemption
) will be cancelled upon redemption and may not be resold or re-issued.
|
|
(j) |
Related Payments:
Each prepayment of all or a
portion of the Principal Balance (whether optional or mandatory) must be accompanied by a payment of any accrued and unpaid Interest Amount on the amount prepaid, and any other amounts due hereunder in respect of such prepayment or
otherwise due at such time.
|
|
(k) |
Termination Fee:
In the event that the Notes are
redeemed pursuant to clauses 8.2(d) (
Optional Redemption in Full
) or 8.2(e) (
Optional Redemption in Part
) on a date prior to the date which is six (6) months following the date of this Note Purchase Deed, the Issuer shall pay to Amsterdam Trade Bank N.V. a
termination fee in an amount of $52,500 on such redemption date.
|
9. |
Tax Gross-Up and Indemnities
|
9.1 |
Definitions
|
9.2 |
Tax gross-up
|
|
(a) |
Each Obligor shall make all payments to be made by it under any Finance Document without any Tax Deduction, unless a Tax Deduction is required by law.
|
|
(b) |
The Issuer 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 Agent accordingly. Similarly, a Note Purchaser shall notify the Agent on becoming so aware in respect of a payment payable to that Note Purchaser. If the Agent receives such notification from a Note Purchaser it
shall notify the Issuer 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 under the relevant Finance Document 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 Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing
authority.
|
9.3 |
Tax indemnity
|
|
(a) |
Each Obligor who is a Party shall (within five Business Days of demand by the Agent) 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) |
Clause 9.3(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 9.2 (
Tax gross-up
); or
|
|
(B) |
relates to a FATCA Deduction required to be made by a Party or any Obligor which is not a Party.
|
|
(c) |
A Protected Party making, or intending to make a claim under clause 9.3(a) above shall promptly notify the Agent of the event which will give, or has given,
rise to the claim, following which the Agent shall notify the Issuer.
|
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this clause 9.3 (
Tax indemnity
), notify the Agent.
|
9.4 |
Indemnities on after Tax basis
|
|
(a) |
If and to the extent that any sum payable to any Protected Party by the Issuer under any Finance Document by way of indemnity or reimbursement proves to be
insufficient, by reason of any Tax suffered thereon, for that Protected Party to discharge the corresponding liability to a third party, or to reimburse that Protected Party for the cost incurred by it in discharging the corresponding
liability to a third party, the Issuer shall pay that Protected Party such additional sum as (after taking into account any Tax suffered by that Protected Party on such additional sum) shall be required to make up the relevant
deficit.
|
|
(b) |
If and to the extent that any sum (the
Indemnity Sum
)
constituting (directly or indirectly) an indemnity to any Protected Party but paid by the Issuer to any person other than that Protected Party, shall be treated as taxable in the hands of the Protected Party, the Issuer shall pay to
that Protected Party such sum (the
Compensating Sum
) as (after taking into account any Tax suffered by that Protected Party on the
Compensating Sum) shall reimburse that Protected Party for any Tax suffered by it in respect of the Indemnity Sum.
|
|
(c) |
For the purposes of clauses 9.4(a) and 9.4(b) above, a sum shall be deemed to be taxable in the hands of a Protected Party if it falls to be taken into
account in computing the profits or gains of that Protected Party for the purposes of Tax and, if so, that Protected Party shall be deemed to have suffered Tax on the relevant sum at the rate of Tax applicable to that Protected
Party’s profits or gains for the period in which the payment of the relevant sum falls to be taken into account for the purposes of such Tax.
|
9.5 |
Stamp taxes:
The Issuer shall pay and, within five
Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
|
9.6 |
Value added tax
|
|
(a) |
All amounts expressed in a Finance Document to be payable 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 clause 9.6(b) below, if VAT is or becomes chargeable on any
|
|
(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 to a
Finance Document other than the Recipient (the
Subject 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 Subject 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-clause 9.6(b)(i) applies) promptly pay to the Subject 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 Subject 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 it 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 thereof 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 9.6 (
Value added tax
)
to any party shall, at any time when such party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such
time (the term
representative member
to have the same meaning as in the Value Added Tax Act 1994).
|
|
(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
|
9.7 |
FATCA information
|
|
(a) |
Subject to clause 9.7(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;
|
|
(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-clause 9.7(a)(i) 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) |
Sub-clause 9.7(a)(i) above shall not oblige any Finance Party to do anything, and sub-clause 9.7(a)(iii) 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-clauses 9.7(a)(i) or 9.7(a)(ii) above (including, for the avoidance of doubt, where sub-clause 9.7(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 Issuer is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it,
each Note Purchaser shall, within ten Business Days of:
|
|
(i) |
where the Issuer is a US Tax Obligor and the Note Purchaser is the Original Note Purchaser, the date of this Note Purchase Deed;
|
|
(ii) |
where the Issuer is a US Tax Obligor on a date on which any other Note Purchaser becomes a Party as a Note Purchaser, that date; or
|
|
(iii) |
where the Issuer is not a US Tax Obligor, the date of a request from the Agent,
supply to the Agent:
|
|
(A) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
|
(B) |
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Note Purchaser
under FATCA or that other law or regulation.
|
|
(f) |
The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Note Purchaser pursuant to
clause 9.7(e) above to the Issuer.
|
|
(g) |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Note Purchaser pursuant to clause 9.7(e)
above is or becomes materially inaccurate or incomplete, that Note Purchaser shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is
unlawful for the relevant Note Purchaser to do so (in which case the relevant Note Purchaser shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document,
authorisation or waiver to the Issuer.
|
|
(h) |
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Note Purchaser pursuant to
clauses 9.7(e) or 9.7(g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with clauses 9.7(e), 9.7(f) or 9.7(g) above.
|
10. |
Increased Costs
|
10.1 |
Increased costs
|
|
(a) |
Subject to clause 10.3 (
Exceptions
), the Issuer
shall, within five (5) Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party or any of its Affiliates which:
|
|
(i) |
arises as a result of (A) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (B)
compliance with any law or regulation made after the date of this Note Purchase Deed; and/or
|
|
(ii) |
is a Basel III Increased Cost; and/or
|
|
(iii) |
is a Reformed Basel III Increased Cost.
|
|
(b) |
In this Note Purchase Deed,
Increased Costs
means:
|
|
(i) |
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
|
|
(ii) |
an additional or increased cost; or
|
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
10.2 |
Increased cost claims
|
|
(a) |
A Finance Party intending to make a claim pursuant to clause 10.1 (
Increased costs
) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Issuer.
|
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Agent and/or the Issuer through the Agent, provide a certificate confirming the
amount of its Increased Costs and the basis of calculation of such amount.
|
10.3 |
Exceptions
|
|
(a) |
Clause 10.1 (
Increased costs
) does not apply to the
extent any Increased Cost is:
|
|
(i) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
|
(ii) |
attributable to a FATCA Deduction required to be made by a Party;
|
|
(iii) |
compensated for by clause 9.3 (
Tax indemnity
) (or
would have been compensated for under clause 9.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions
in clause 9.3(b) (
Tax indemnity
) applied);
|
|
(iv) |
compensated for by the payment to a Note Purchaser under clause 11.9 (
Mandatory Cost
); and
|
|
(v) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
|
(b) |
In clause 10.3(a) above, a reference to a Tax Deduction has the same meaning given to the term in clause 9.1 (
Definitions
).
|
11. |
Other Indemnities
|
11.1 |
Other Indemnities
|
|
(a) |
the occurrence of any Event of Default; or
|
|
(b) |
a Note (or part of a Note) not being prepaid in accordance with a notice of prepayment given by the Issuer.
|
11.2 |
Indemnity to the Agent and the Security Agent
|
|
(a) |
any and all Losses (together with any applicable VAT) incurred by the Agent or the Security Agent (acting reasonably) as a result of:
|
|
(i) |
investigating any event which it reasonably believes is a Default;
|
|
(ii) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
|
(iii) |
instructing lawyers, accountants, tax advisers, insurance consultants, ship managers, valuers, surveyors or other professional advisers or experts as
permitted under the Finance Documents; or
|
|
(iv) |
any action taken by the Agent or the Security Agent or any of its or their representatives, agents or contractors in connection with any powers conferred by
any Security Document to remedy any breach of any Obligor’s obligations under the Finance Documents, and
|
|
(b) |
any and all Losses (including, without limitation, in respect of liability for negligence or any other category of liability whatsoever) (together with any
applicable VAT) incurred by the Agent or the Security Agent (otherwise than by reason of the Agent’s or the Security Agent’s gross negligence or wilful misconduct).
|
11.3 |
Indemnity concerning security
|
|
(a) |
The Issuer shall (or shall procure that another Obligor will) promptly indemnify each Indemnified Person against any and all Losses (together with any
applicable VAT) incurred by it as a result of:
|
|
(i) |
any failure by the Issuer to comply with its obligations under clause 13 (
Costs and Expenses
) or any similar provision in any other Finance Document;
|
|
(ii) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
|
(iii) |
the taking, holding, protection or enforcement of the Transaction Security;
|
|
(iv) |
the exercise or purported exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and/or any other Finance
Party and each Receiver and each Delegate by the Finance Documents or by law (otherwise, in each case, than by reason of the relevant Security Agent’s and/or other Finance Party’s, Receiver’s or Delegate’s gross negligence or wilful
misconduct);
|
|
(v) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
|
(vi) |
any claim (whether relating to the environment or otherwise) made or asserted against the Indemnified Person which would not have arisen but for the
execution or enforcement of one or more Finance Documents (unless and to the extent it is caused by the gross negligence or wilful misconduct of that Indemnified Person);
|
|
(vii) |
instructing lawyers, accountants, tax advisers, insurance consultants, ship managers, valuers, surveyors or other professional advisers or experts as
permitted under the Finance Documents; or
|
|
(viii) |
(in the case of the Security Agent and/or any other Finance Party, any Receiver and any Delegate) acting as Security Agent and/or as holder of any of the
Transaction Security, Receiver or Delegate under the Finance Documents or which otherwise relates to the Charged Property (otherwise, in each case, than by reason
|
|
(b) |
The Security Agent may, in priority to any payment to the other Finance Parties, indemnify itself out of the Charged Property in respect of, and pay and
retain, all sums necessary to give effect to the indemnity in this clause 11.3 (
Indemnity concerning security
) and shall have a
lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.
|
11.4 |
Continuation of indemnities
|
11.5 |
Third Parties Act
|
|
(a) |
Each Indemnified Person may rely on the terms of clause 11.3 (
Indemnity concerning security
) and clauses 9 (
Tax Gross-Up and Indemnities
) and 11.6 (
Interest
) insofar as it relates to interest on, or the calculation of, any amount demanded by that Indemnified Person under clause 11.3 (
Indemnity concerning security
), subject to paragraph 4 of Schedule 8 (
Definitions and Interpretation
) and the provisions of the Third Parties Act.
|
|
(b) |
Where an Indemnified Person (other than a Finance Party) (the
Relevant Beneficiary
) who is:
|
|
(i) |
appointed by a Finance Party under the Finance Documents;
|
|
(ii) |
an Affiliate of any such person or that Finance Party; or
|
|
(iii) |
an officer, director, employee, adviser, representative or agent of any of the above persons or that Finance Party,
|
|
(A) |
the Issuer shall, at the same time as the relevant Third Party Claim is due to the Relevant Beneficiary, pay to that Finance Party a sum in the amount of
that Third Party Claim;
|
|
(B) |
payment of such sum to that Finance Party shall, to the extent of that payment, satisfy the corresponding obligations of the Issuer to pay the Third Party
Claim to the Relevant Beneficiary; and
|
|
(C) |
if the Issuer pays the Third Party Claim direct to the Relevant Beneficiary, such payment shall, to the extent of that payment, satisfy the corresponding
obligations of the Issuer to that Finance Party under sub-clause 11.5(b)(iii)(A) above.
|
11.6 |
Interest
|
11.7 |
Exclusion of liability
|
11.8 |
Sanctions
|
|
(a) |
Each Obligor shall, within five Business Days of demand by a Finance Party, indemnify such Finance Party against any cost, loss or liability incurred by it
as a result of any civil penalty or fine against, and all costs and expenses (including counsel fees and disbursements) incurred in connection with the defence thereof by, the Agent or the relevant Finance Party as a result of conduct
of any Obligor or any of its partners, directors, officers, employees, agents or advisors, that violates any applicable Sanctions.
|
|
(b) |
The indemnity in clause 11.8(a) shall cover any Losses incurred by each Finance Party in any jurisdiction arising or asserted under or in connection with
any law relating to any applicable Sanctions.
|
11.9 |
Mandatory Cost
|
|
(a) |
in the case of a Note Purchaser lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements
having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
|
(b) |
in the case of any Note Purchaser lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or
other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any
other governmental authority or agency which replaces all or any of their functions),
|
12. |
Mitigation by the Note Purchasers
|
12.1 |
Mitigation
|
|
(a) |
Each Finance Party shall, in consultation with the Issuer, take all reasonable steps to mitigate any circumstances which arise or any amount becoming
payable under or pursuant to, or cancelled pursuant to, any of, clause 9 (
Tax Gross-Up and Indemnities
), clause 10 (
Increased Costs
) or clause 11.9 (
Mandatory
Cost
) including (but not limited to) assigning its rights under the Finance Documents to another Affiliate or Facility Office.
|
|
(b) |
Clause 12.1(a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
12.2 |
Limitation of liability
|
|
(a) |
The Issuer shall promptly indemnify each Finance Party for all costs and expenses incurred by that Finance Party as a result of steps taken by it under
clause 12.1 (
Mitigation
).
|
|
(b) |
A Finance Party is not obliged to take any steps under clause 12.1 (
Mitigation
) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
13. |
Cost and Expenses
|
13.1 |
Transaction expenses
|
|
(a) |
this Note Purchase Deed and any other documents referred to in this Note Purchase Deed and the Security Documents;
|
|
(b) |
any other Finance Documents executed or proposed to be executed after the date of this Note Purchase Deed; or
|
|
(c) |
any Security Interest expressed or intended to be granted by a Finance Document.
|
13.2 |
Amendment costs
|
13.3 |
Enforcement, preservation and other costs
|
|
(a) |
the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any proceedings instituted by or against
any Indemnified Person as a consequence of taking or holding the Security Documents or enforcing those rights; or
|
|
(b) |
any inspection carried out under paragraph 5.9 (
Inspection
and notice of dry-docking
) of Schedule 4 (
Covenants of the Obligors
), or any survey carried out under paragraph 5.17
|
14. |
Guarantee and Indemnity
|
14.1 |
Guarantee and indemnity
|
|
(a) |
guarantees to the Security Agent (as trustee for the Finance Parties) and the other Finance Parties punctual performance by each other Obligor of all such
Obligor’s obligations under the Finance Documents;
|
|
(b) |
undertakes with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties that whenever another Obligor (other than the
Charterer) does not pay any amount when due under or in connection with any Finance Document, it shall immediately on demand pay that amount as if it was the principal obligor; and
|
|
(c) |
agrees with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties 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 another Obligor (other than the
Charterer) not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by such Obligor 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 the Guarantor would have had to pay under this clause 14.1 (
Guarantee and
indemnity
) if the amount claimed had been recoverable on the basis of a guarantee.
|
14.2 |
Continuing guarantee
|
14.3 |
Reinstatement
|
14.4 |
Waiver of defences
|
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any other Obligor;
|
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any 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 an 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.
|
14.5 |
Guarantor’s intent
|
14.6 |
Immediate recourse
|
14.7 |
Appropriations
|
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance 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 in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor’s liability under this clause 14 (
Guarantee and Indemnity
).
|
14.8 |
Deferral of Guarantor’s rights
|
|
(a) |
Until all amounts which may be or become payable by the Obligors (other than the Charterer) under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Agent otherwise directs, the Guarantor will not exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount
being payable, or liability arising, under this clause 14 (
Guarantee and Indemnity
):
|
|
(i) |
to be indemnified by another Obligor;
|
|
(ii) |
to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;
|
|
(iii) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or
of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
|
(iv) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has
given a guarantee, undertaking or indemnity under this clause 14 (
Guarantee and Indemnity
);
|
|
(v) |
to exercise any right of set-off against any other Obligor; and/or
|
|
(vi) |
to claim or prove as a creditor of any other Obligor in competition with any Finance Party.
|
|
(b) |
If the Guarantor receives any benefit, payment or distribution in relation to such rights it will promptly pay an equal amount to the Agent for application
in accordance with the Payment Mechanics. This only applies until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full.
|
14.9 |
Additional security
|
15. |
Events of Default
|
15.1 |
Determination of Event of Default; Acceleration and Security
Enforcement
|
|
(a) |
At any time after the occurrence of an Event of Default, the Note Purchasers may, in their absolute discretion give a notice (a
Note Acceleration Notice
) to the Issuer (with a copy to the Security Agent) declaring all the Notes to be due and repayable and in addition may give
notice to the Security Agent directing it to enforce the Security in accordance with clause 15.2 (
Enforcement
).
|
|
(b) |
Upon delivery of a Note Acceleration Notice, the Principal Balance of the Notes together with accrued interest up to (but excluding) the date on which all
principal and interest are paid in full and all other Secured Obligations payable to any and all of the Finance Parties shall immediately become due and repayable.
|
15.2 |
Enforcement
|
15.3 |
Enforcement Instructions
|
|
(a) |
The Security Agent may refrain from enforcing the Transaction Security unless instructed otherwise by Note Purchaser.
|
|
(b) |
Subject to the Transaction Security having become enforceable in accordance with its terms, the Note Purchasers may give or refrain from giving instructions
to the Security Agent to enforce or refrain from enforcing the Transaction Security as they see fit.
|
|
(c) |
The Security Agent is entitled to rely on and comply with instructions given in accordance with this clause 15.3 (
Enforcement Instructions
).
|
15.4 |
Manner of enforcement
|
15.5 |
Waiver of rights
|
15.6 |
Non-petition
|
16. |
Application of Proceeds
|
16.1 |
Order of application
|
16.2 |
Investment of cash proceeds
|
|
(a) |
all or part of any Recoveries which are in the form of cash; and
|
|
(b) |
any cash which is generated by holding, managing, exploiting, collecting, realising or disposing of any proceeds of the Security Property which are not in
the form of cash,
|
16.3 |
Currency conversion
|
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Obligations the Security Agent may:
|
|
(i) |
convert any moneys received or recovered by the Security Agent from one currency to another; and
|
|
(ii) |
notionally convert the valuation provided in any opinion or valuation from one currency to another,
|
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied:
|
|
(i) |
in the case of sub-clause 16.3(a)(i) above, to the extent of the amount of the due currency purchased after deducting the costs of conversion; and
|
|
(ii) |
in the case of sub-clause 16.3(a)(ii) above, to the extent of the amount of the due currency which results from the notional conversion referred to in that
sub-clause.
|
16.4 |
Permitted Deductions
|
16.5 |
Good discharge
|
|
(a) |
Any distribution or payment to be made in respect of the Secured Obligations by the Security Agent may be made to the Agent on behalf of the Finance
Parties.
|
|
(b) |
Any distribution or payment made as described in clause 16.5(a) above shall be a good discharge, to the extent of that payment or distribution, by the
Security Agent to the extent of that payment.
|
|
(c) |
The Security Agent is under no obligation to make the payments to the Agent under clause 16.5(a) above in the same currency as that in which the Secured
Liabilities owing to the relevant Finance Party are denominated pursuant to the relevant Finance Document.
|
16.6 |
Calculation of amounts
|
|
(a) |
notionally convert the Secured Liabilities owed to any person into a common base currency (decided in its discretion by the Security Agent), that notional
conversion to be made at the spot rate at which the Security Agent is able to purchase the notional base currency with the actual currency of the Secured Liabilities owed to that person at the time at which that calculation is to be
made; and
|
|
(b) |
assume that all amounts received or recovered as a result of the enforcement or realisation of the Security Property are applied in discharge of the Secured
Liabilities in accordance with the terms of the Finance Documents under which those Secured Liabilities have arisen.
|
16.7 |
Release to facilitate enforcement and realisation
|
|
(a) |
Each Finance Party acknowledges that, for the purpose of any enforcement action by the Security Agent or a Receiver and/or maximising or facilitating the
realisation of the Charged Property, it may be desirable that certain rights or claims against an Obligor and/or under certain of the Transaction Security, be released.
|
|
(b) |
Each other Finance Party hereby irrevocably authorises the Security Agent (acting on the instructions of the Agent) to grant any such releases to the extent
necessary to effect such enforcement action and/or realisation including, to the extent necessary for such purpose, to execute release documents in the name of and on behalf of the other Finance Parties.
|
|
(c) |
Where the relevant enforcement is by way of disposal of shares in the Issuer, the requisite release may include releases of all claims (including under
guarantees) of the Finance Parties and/or the Security Agent against the Issuer and of all Security Interests over the assets of the Issuer.
|
16.8 |
Dealings with the Security Agent
|
16.9 |
Disclosure between Finance Parties and Security Agent
|
16.10 |
Notification of prescribed events
|
|
(a) |
If an Event of Default or Default either occurs or ceases to be continuing, the Agent shall, upon becoming aware of that occurrence or cessation, notify the
Security Agent.
|
|
(b) |
If the Security Agent enforces, or takes formal steps to enforce, any of the Transaction Security it shall notify each other Finance Party of that action.
|
|
(c) |
If any Finance Party exercises any right it may have to enforce, or to take formal steps to enforce, any of the Transaction Security it shall notify the
Security Agent and the Security Agent shall, upon receiving that notification, notify each other Finance Party of that action.
|
17. |
Conduct of Business by the Finance Parties
|
17.1 |
Finance Parties tax affairs
|
|
(a) |
interferes with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
|
(b) |
obliges 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) |
obliges any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
18. |
Survival of Representations and Obligations
|
19. |
Assignment and Transfers
|
19.1 |
Voluntary Transfers by Note Purchasers
|
|
(a) |
Each party hereto hereby agrees and consents that a Note Purchaser may transfer by novation any or all of its rights under, interest in, title to and
obligations (if any) under this Note Purchase Deed and the Notes (such Note Purchaser being the
Note Transferor
) to any of the
following persons (the
Note Transferee
):
|
|
(i) |
any Affiliate of such Note Purchaser or of any Finance Party, or any Finance Party; and
|
|
(ii) |
any bank or financial institution.
|
|
(b) |
Any Note Transferee shall be deemed to have irrevocably appointed the Registrar to act in accordance with clause 21.1 (
Register of Notes
).
|
|
(c) |
Each Note Purchaser shall notify the Issuer of the name of each Note Transferee that will fund its purchase.
|
|
(d) |
Neither a Note Transferor nor any other Finance Party is responsible to a Note Transferee for:
|
|
(i) |
the execution, genuineness, validity, enforceability or sufficiency of any Transaction Documents or any other document;
|
|
(ii) |
the collectability of amounts payable under any Transaction Documents or the financial condition of or the performance of its obligations under Transaction
Documents by any Obligor; or
|
|
(iii) |
the accuracy of any statements or information (whether written or oral) made in or in connection with or supplied in connection with any Transaction
Documents.
|
|
(e) |
Each Note Transferee confirms to the Note Transferor and the other Finance Parties that it:
|
|
(i) |
has made its own independent investigation and assessment of the financial condition and affairs of the Issuer and the Guarantor and their related entities
in connection with its participation in this Note Purchase Deed and has not relied on any information provided to it by the Note Transferor or any other Finance Party in connection with any Transaction Documents;
|
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of the Issuer and the Guarantor and their related entities.
|
|
(f) |
Nothing in any Transaction Documents obliges a Note Transferor to:
|
|
(i) |
accept a re-transfer from a Note Transferee of any rights and obligations novated in accordance with this clause 19.1 (
Voluntary Transfers by Note Purchasers
); or
|
|
(ii) |
support any losses incurred by the Note Transferee by reason of the nonperformance by the Issuer or the Guarantor of their respective obligations under any
Transaction Documents or otherwise.
|
|
(g) |
A Note Purchaser may only transfer its rights hereunder and under the Notes by novation pursuant to this clause 19.1 (
Voluntary Transfers by Note Purchasers
) and clause 19.2 (
Transfer
Procedure
).
|
|
(h) |
All costs and expenses in connection with a transfer pursuant to this clause 19.1 (
Voluntary Transfers by Note Purchasers
) shall be solely those of the Note Transferor and/or the Note Transferee and the Issuer shall not have any obligations to any person for any such costs and
expenses.
|
|
(i) |
The Issuer and the Guarantor each agrees that in no event shall any of them provide any Note Transferee, directly or indirectly, any benefit, agreement or
arrangement that would be more favourable than the benefits, agreements and arrangements applicable to the existing Note Purchaser under the Transaction Documents.
|
19.2 |
Transfer Procedure
:
|
|
(a) |
A novation is effected if:
|
|
(i) |
the Note Transferor and the Note Transferee deliver to the Registrar, with a copy to the Issuer and the Guarantor, a transfer notice (in the form of
Appendix A
to Schedule 5 (
Form of
Deed of Accession
)) attached hereto executed by the Note Transferor and the Note Transferee and a duly executed deed of accession in the form attached hereto as Schedule 5 (
Form of Deed of Accession
) (a
Deed of Accession
); and
|
|
(ii) |
the Registrar executes the Deed of Accession.
|
|
(b) |
To the extent that they are expressed to be the subject of the novation in the Deed of Accession:
|
|
(i) |
the Issuer and the Note Transferor will be released from further obligations to each other under the Notes and the Transaction Documents and their
respective rights against one another under the Transaction Documents shall be cancelled (the
Discharged Rights and Obligations
);
|
|
(ii) |
the Issuer and the Note Transferee will assume obligations towards each other and/or acquire rights against one another under the Notes and the Transaction
Documents which differ from the Discharged Rights and Obligations only insofar as the Issuer and the Note Transferee have assumed and/or acquired the same in place of the Issuer and the Note Transferor;
|
|
(iii) |
each Finance Party and the Issuer, and the Note Transferee shall acquire the same rights and assume the same obligations between themselves as they would
have acquired and assumed had the Note Transferee been an original Note Purchaser with the rights, and/or obligations acquired or assumed by it as a result of the transfer and to that extent each Finance Party and the Issuer and the
Note Transferor shall each be released from further obligations to each other under the Transaction Documents; and
|
|
(iv) |
the Note Transferor shall, if it holds Certificated Notes, deliver its relevant Note Certificates to the Registrar and the Registrar shall:
|
|
(A) |
if the Note Transferor is transferring in whole the Principal Balance of its Notes, cancel any relevant Note Certificates and shall issue new Note
Certificates to the Note Transferee in a maximum amount equal to the maximum Principal Balance of such cancelled Note Certificates and the Registrar shall record such transfer and (if applicable) issue on the Register (on the date of
execution by it of the Deed of Accession); or
|
|
(B) |
if the Transferor is transferring part only of the Principal Balance (such part of the Principal Balance which is being transferred the
Transferred Amount
) of its Notes, record the new and reduced Principal Balance on the Register and (if applicable) the Note
Transferor’s relevant Note Certificates and shall (if applicable) issue new Note Certificates to the Note Transferee in a maximum amount equal to the Transferred Amount and the Registrar shall record a transfer of Notes with a
Principal Balance equal to the Transferred Amount and (if applicable) such issue on the Register (on the date of execution by it of the Deed of Accession); and
|
|
(C) |
deliver an acknowledgments and confirmation of transfer letter (in the form of
Appendix B
to Schedule 5 (
Form of Deed of Accession
)) to the Note Transferor and Note Transferee,
|
19.3 |
Assignments and Transfer by the Issuer
|
19.4 |
Registrar and Deed of Accession
|
19.5 |
Interpretation Following a Transfer
|
20. |
Roles of Agent, Security Agent and Registrar
|
20.1 |
Appointment of the Agent, Security Agent and Registrar
|
|
(a) |
Each other Finance Party (other than the Security Agent) appoints:
|
|
(i) |
the Agent to act as its agent under and in connection with the Finance Documents; and
|
|
(ii) |
the Security Agent to act as its agent and as trustee under the Security Documents.
|
|
(b) |
The Issuer appoints the Registrar to act as its agent under and in connection with this Note Purchase Deed.
|
20.2 |
Security Agent as trustee
|
20.3 |
Authorisation of the Agent, Registrar and Security Agent
|
|
(a) |
to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent, the
Registrar or (as the case may be) the Security Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and
|
|
(b) |
to execute each of the Security Documents and all other documents that may be approved by the Note Purchasers for execution by it.
|
20.4 |
Duties of the Agent and the Security Agent
|
|
(a) |
The Agent’s, the Registrar’s and the Security Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
|
(b) |
The Agent, the Registrar or (as the case may be) the Security Agent shall promptly:
|
|
(i) |
(in the case of the Security Agent) forward to the Agent a copy of any document received by the Security Agent from any Obligor under any Finance Document;
and
|
|
(ii) |
forward to a Party the original or a copy of any document which is delivered to the Agent or (as the case may be) the Security Agent for that Party by any
other Party.
|
|
(c) |
Except where a Finance Document specifically provides otherwise, neither the Agent nor the Security Agent is obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to another Party.
|
|
(d) |
If the Agent, the Registrar or the Security Agent receives notice from a Party referring to this Note Purchase Deed, describing an Event of Default and
stating that the circumstance described is an Event of Default, it shall promptly notify the other Finance Parties.
|
|
(e) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the
Registrar or the Security Agent for their own account) under this Note Purchase Deed, it shall promptly notify the other Finance Parties.
|
|
(f) |
The Agent, the Registrar and 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).
|
20.5 |
No duty to account
|
20.6 |
No duty to monitor
|
|
(a) |
whether or not any Event of Default has occurred;
|
|
(b) |
as to the performance, default or any breach by any Party or any Obligor of its obligations under any Finance Document; or
|
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
20.7 |
Exclusion of liability
|
|
(a) |
Without limiting clause 20.7(b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the
Agent, the Registrar, the Security Agent, any Receiver or Delegate), none of the Agent, the Registrar, the Security Agent, any Receiver nor any Delegate will be liable (including, without limitation, for negligence or any other
category of liability whatsoever) 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 Finance 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 Finance 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 Finance Document or the Security Property;
|
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
|
(iv) |
without prejudice to the generality of paragraphs sub-clauses (i) to (iii) above, any damages, costs, losses, any diminution in value or any liability
whatsoever arising as a result of:
|
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
|
(b) |
No Party (other than the Agent, the Registrar, the Security Agent, that Receiver or that Delegate (as applicable)) may take any proceedings against any
officer, employee or agent of the Agent, the Security Agent, the Registrar, a Receiver or a Delegate in respect of any claim it might have against the Agent, the Registrar, the Security Agent, a Receiver or a Delegate or in respect of
any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Agent, the Registrar, the Security Agent, a Receiver or a
Delegate may rely on this clause subject to paragraph 4 of Schedule 8 (
Definitions and Interpretation
) and the provisions of the
Third Parties Act.
|
|
(c) |
Neither the Agent, the Registrar or the Security Agent will 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 it if it 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
it for that purpose.
|
|
(d) |
Nothing in any Finance Document shall oblige the Agent, the Security Agent or the Registrar 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 any of the Finance Documents might be unlawful for any Finance Party or for any Affiliate
of any Finance Party,
|
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Agent, the Registrar, the Security Agent, any Receiver
or any Delegate, any liability of the Agent, the Registrar, the Security Agent, any Receiver or any Delegate arising under or in connection with any Finance 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 Agent, the Registrar, the Security Agent, Receiver or Delegate (as the case may be) 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 Agent, the Registrar, the Security Agent, Receiver or Delegate (as the case may be) at any time
which increase the amount of that loss. In no event shall the Agent, the Registrar, the Security Agent, any Receiver or any 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 Agent, the Security Agent, Receiver or Delegate (as the case may be) has been advised of the possibility of such loss or damages.
|
20.8 |
Indemnity to the Agent and the Security Agent
|
20.9 |
Resignation of the Agent, the Registrar or the Security
Agent
|
|
(a) |
The Agent, the Registrar or the Security Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and
the Issuer.
|
|
(b) |
Alternatively the Agent or the Security Agent may resign by giving 30 days’ notice to the other Finance Parties and the Issuer, in which case the Note
Purchasers may appoint a successor Agent, Registrar or Security Agent.
|
21. |
Registrar
|
21.1 |
Register of Notes
|
|
(a) |
The Registrar, as agent of the Issuer, shall keep an up-to-date register (the
Register
) in which it shall record:
|
|
(i) |
an entry in the Register (a
Register Entry
) for each
Note recording the indebtedness of the Issuer to each Note Purchaser (including the Principal Balance and the amounts of principal and interest payable and paid to such Note Purchaser, in each case in the relevant denomination of US
Dollars), updated from time to time during the tenor of such Note upon any change in any of the details in respect of such Note required to be included in such Register Entry;
|
|
(ii) |
the registration of each Certificated Note issued;
|
|
(iii) |
the registration of transfers of Notes evidenced by a Register Entry; and
|
|
(iv) |
the cancellation of each redeemed Note.
|
|
(b) |
Immediately upon receipt by the Issuer of the proceeds of the issuance of a Note, the Registrar shall, on behalf of the Issuer, make a Register Entry in
respect of such Note, which Register Entry shall contain the following details in respect of such Note as at the Closing Date:
|
|
(i) |
the identity of the Note Purchasers;
|
|
(ii) |
the serial number;
|
|
(iii) |
the Closing Date;
|
|
(iv) |
the Final Maturity Date;
|
|
(v) |
the denomination; and
|
|
(vi) |
the Principal Balance, in US Dollars.
|
|
(c) |
The Registrar’s Register Entries of, among other things, the Principal Balance and the date and amount of each payment of principal and interest by the
Issuer shall be conclusive evidence thereof absent manifest error;
provided
that the failure by the Registrar to make any
Register Entries in the Register shall not affect the obligations of the Issuer under this Note Purchase Deed or under the Notes.
|
|
(d) |
The Registrar shall supply each Note Purchaser with a copy of the Register on request. The parties to this Note Purchase Deed may rely, for all purposes, on
the Register including, for the purposes of identifying the Note Purchasers from time to time.
|
21.2 |
In acting in connection with the Notes, the Registrar:
|
|
(a) |
shall act solely as agent of the Issuer and shall have no fiduciary duty, obligation or relationship of agency or trust with any of the Note Purchasers and
need have no concern for the interests of the Note Purchasers or any other party;
|
|
(b) |
shall be obliged to perform such duties and only such duties as are specifically set out in this Note Purchase Deed and any duties necessarily incidental to
them. No implied duties or obligations shall be read into this Note Purchase Deed and the Registrar shall not be obliged to perform any duties additional to or different from such duties resulting from any modification or supplement
after the date hereof to this Note Purchase Deed, unless it shall have previously agreed to perform such duties.
|
|
(c) |
shall be under no obligation to take any action hereunder which it reasonably expects will result in any expense or liability of the Registrar the payment
of which within a reasonable time is not, in its opinion, assured to it, or to do anything which might in its opinion, constitute a breach of any law or regulation;
|
|
(d) |
may assume that the terms of the Notes as issued are correct and shall be entitled, except as ordered by a court of competent jurisdiction or otherwise
required by law or otherwise instructed by the Issuer (and regardless of any notice of ownership, trust or any other interest therein, any writing on the certificate relating to any Note by any person (other than a duly executed form
of transfer) or any notice of any previous loss or theft thereof), to treat the registered holder of any Note as its absolute owner for all purposes;
|
|
(e) |
may rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine and shall be protected against any liability
for acting on any such notice, communication or other document;
|
|
(f) |
may refer any question relating to the ownership of any Note or the adequacy or sufficiency of any evidence supplied in connection with the replacement of
any Note to the Issuer for determination by the Issuer and rely upon any determination so made;
|
|
(g) |
may, at the Issuer’s expense, engage the advice or services of any lawyers or other experts whose advice or services the Registrar considers necessary and
rely upon any advice so obtained (and shall be protected and shall incur no liability in respect of any action taken, or suffered to be taken, in accordance with such advice);
|
|
(h) |
may, without prejudice to its obligations under this Note Purchase Deed, enter into any transaction (including, without limitation, any depository, trust or
agency transaction) with any Note Purchasers or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Notes.
|
21.3 |
For the avoidance of doubt, the Issuer and the Guarantor shall do or cause to be done all such acts, matters and things and shall make available all such
documents or information as shall be necessary or desirable to enable the Registrar to fully comply with and carry out its duties and obligations hereunder and the Registrar shall be under no obligation to take any steps to ascertain
whether any relevant event has occurred or to monitor or supervise the functions of any other person under the Transaction Documents or any other agreement or document relating to the transactions herein or therein contemplated.
|
21.4 |
Indemnity
|
|
(a) |
The Registrar shall not be liable to any party for any Losses incurred as a result of any act or omission by it in connection with this Note Purchase Deed
or any Note except as a result of its own gross negligence, wilful default, or fraud and, notwithstanding any provision of this Note Purchase Deed to the contrary, the Registrar shall not be liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including but not limited to loss of profit, loss of contract or opportunity, loss of goodwill or reputation), whether or not foreseeable even if the Registrar has been advised of
the likelihood of such loss or damage and regardless of whether the claim for such loss or damage is made in negligence, for breach of contract, breach of trust, breach of fiduciary obligation or otherwise.
|
|
(b) |
The Issuer agrees to indemnify and keep indemnified the Registrar against any Losses (including, without limitation, for negligence or any other category of
liability whatsoever) which it may incur or which may be made against it arising out of or in relation to or in connection with its appointment or the exercise of its rights and duties hereunder, except such as may result from its
gross negligence or wilful misconduct. This indemnity shall continue in full force and effect notwithstanding the termination of this Note Purchase Deed or the resignation, revocation or termination of the Registrar’s appointment.
|
22. |
Time; Payments
|
22.1 |
Time
|
22.2 |
Payments to Note Purchaser
|
|
(a) |
Unless otherwise specified in the Transaction Documents, all interest, principal and other amounts from time to time payable on the Notes held by each Note
Purchaser shall be payable into the relevant account or accounts as are specified to the Issuer by such Note Purchaser with respect to such Note Purchaser Group; provided that notice in writing of such account must be
provided
at least two (2) Business Days before the due date for the relevant payment.
|
|
(b) |
In order to provide for the payment of principal and interest in respect of the Notes, on any day the same becomes due and payable the Issuer shall, on such
date, pay to each Note Purchaser or otherwise cause it to receive, an amount equal to the aggregate amount payable with respect to the Note(s) for the relevant Note Purchaser.
|
22.3 |
Manner and time of payment
|
23. |
Notices
|
23.1 |
Communications in writing
|
23.2 |
Addresses
|
23.3 |
The
Issuer:
|
23.4 |
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 when it
has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address and, if a particular department or officer is specified as part of its
address details provided under clause 23.2 (
Addresses
), if addressed to that department or officer.
|
|
(b) |
Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or the
Security Agent and then only if it is expressly marked for the attention of the department or officer identified above (or any substitute department or officer as the Agent or the Security Agent shall specify for this purpose).
|
|
(c) |
All notices from or to an Obligor shall be sent through the Agent.
|
|
(d) |
Any communication or document made or delivered to the Issuer in accordance with this clause 23.3 (
Delivery
) will be deemed to have been made or delivered to each of the Obligors.
|
|
(e) |
Any communication or document which becomes effective, in accordance with clauses 23.3(a) to 23.3(d) above, after 5:00 p.m. in the place of receipt shall be
deemed only to become effective on the following day.
|
23.5 |
Notification of address
|
23.6 |
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 clause 23.5(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 clause 23.5(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 Agent or the Security Agent, only if it is addressed in such a manner as the Agent or the Security Agent shall specify for this
purpose.
|
|
(d) |
Any electronic communication which becomes effective, in accordance with clause 23.5(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 Note Purchase Deed or any other Finance Document 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 23.5 (
Electronic communication
).
|
23.7 |
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 Agent, accompanied by a certified English translation and, in this case, the English translation will prevail
unless the document is a constitutional, statutory or other official document.
|
24. |
Calculations and Certificates
|
24.1 |
Accounts
|
24.2 |
Day Count Convention
|
25. |
Miscellaneous
|
25.1 |
Amendments and Waivers
|
25.2 |
Certificates and Determinations
|
25.3 |
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.
|
25.4 |
Partial invalidity
|
25.5 |
Set-off
|
25.6 |
Counterparts
|
26. |
Confidential Information
|
26.1 |
Confidential Information
|
26.2 |
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 clause 26.2(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 may potentially assign) 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 Agent or Security Agent and, in each case, to any of that person’s Affiliates, Related Funds, Representatives, professional advisers and partners;
|
|
(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 Obligors and to any of that person’s Affiliates, Related Funds, Representatives, professional advisers
and partners;
|
|
(iii) |
appointed by any Finance Party or by a person to whom sub-clauses 26.2(b)(i) or 26.2(b)(ii) above applies to receive communications, notices, information or
documents delivered pursuant to the Finance Documents on its behalf;
|
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-clauses
26.2(b)(i) or 26.2(b)(ii) 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, arbitration, 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);
|
|
(viii) |
who is a Party; or
|
|
(ix) |
with the consent of the Issuer;
|
|
(c) |
to any person appointed by that Finance Party or by a person to whom sub-clauses 26.2(b)(i) or 26.2(b)(ii) 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 clause 26.2(c) if the service provider to whom the Confidential 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 Issuer 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 Obligors.
|
26.3 |
Entire agreement
|
26.4 |
Inside information
|
26.5 |
Nature of disclosure
|
|
(a) |
of the circumstances of any disclosure of Confidential Information made to 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 or the rules of any relevant stock exchange or pursuant to any applicable law or regulation pursuant to clause 26.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any such person during the ordinary course of its
supervisory or regulatory function; and
|
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this clause 26 (
Confidential Information
).
|
26.6 |
Continuing obligations
|
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full; and
|
|
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
27. |
Governing Law
|
28. |
Jurisdiction
|
28.1 |
Jurisdiction of English courts
|
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Note Purchase Deed or any non-contractual
obligations connected with it (including a dispute regarding the existence, validity or termination of this Note Purchase Deed) (a
Dispute
).
|
|
(b) |
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
|
|
(c) |
Notwithstanding clause 28.1(a) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
28.2 |
Service of process
|
|
(a) |
irrevocably appoints:
|
|
(b) |
agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned; and
|
|
(c) |
if any person appointed as process agent for an Obligor is unable for any reason to act as agent for service of process, that Obligor must immediately (and
in any event within ten 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.
|
EXECUTED
and
DELIVERED
as a
DEED
by
|
)
|
/s/Alexandros Tsirikos
|
|
TOP SHIPS INC.
|
)
|
Attorney-in-fact
|
|
acting by: Alexandros Tsirikos
|
)
|
||
in the presence of:
|
)
|
||
/s/ Karkaletsi S. Dimitra
|
||
Witness name: Karkaletsi S. Dimitra
|
||
Address: 274, Leof, Salaminas – Salamina
Greece, Tel 2104654270
|
||
Occupation: Attorney-at-Law
|
EXECUTED
and
DELIVERED
as a
DEED
by
|
)
|
/s/ Ira Ulis Tsirigotis
|
|
AMSTERDAM TRADE BANK N.V.
|
)
|
Authorised signatory
|
|
acting by:
|
)
|
||
)
|
/s/Harris Antoniou
|
||
Authorised signatory
|
EXECUTED
and
DELIVERED
as a
DEED
by
|
)
|
/s/ Ira Ulis Tsirigotis
|
|
AMSTERDAM TRADE BANK N.V.
|
)
|
Authorised signatory
|
|
acting by:
|
)
|
||
)
|
/s/Harris Antoniou
|
||
Authorised signatory
|
EXECUTED
and
DELIVERED
as a
DEED
by
|
)
|
/s/ Ira Ulis Tsirigotis
|
|
AMSTERDAM TRADE BANK N.V.
|
)
|
Authorised signatory
|
|
acting by:
|
)
|
||
)
|
/s/Harris Antoniou
|
||
Authorised signatory
|
EXECUTED
and
DELIVERED
as a
DEED
by
|
)
|
/s/Alexandros Tsirikos
|
|
ASTARTE INTERNATIONAL INC.
|
)
|
Attorney-in-fact
|
|
acting by: Alexandros Tsirikos
|
)
|
||
in the presence of:
|
)
|
||
/s/ Karkaletsi S. Dimitra
|
||
Witness name: Karkaletsi S. Dimitra
|
||
Address: 274, Leof, Salaminas – Salamina
Greece, Tel 2104654270
|
||
Occupation: Attorney-at-Law
|
Note Purchaser
|
Subscription
|
Note Purchaser Pro Rata Share
|
Amsterdam Trade Bank N.V.
|
$10,500,000
|
100%
|
1 |
We refer to the Deed. Capitalised terms not defined herein shall have the meaning given to them in the Deed.
|
2 |
This is a Note Issue Notice.
|
3 |
We hereby request the subscription of Notes on the following terms:
|
|
(a) |
Closing Date: [
Specify date
] or such other date as
agreed between the Note Purchasers and the Issuer.
|
|
(b) |
US$10,500,000
|
|
(c) |
Final Maturity Date: 31 March 2020 or such other date as agreed between the Note Purchasers and the Issuer.
|
6 |
We confirm that each condition precedent under the Deed which must be satisfied on the date of this Note Issue Notice is or will be so satisfied.
|
7 |
We hereby represent and warrant that:
|
|
(a) |
the representations and warranties set out in Schedule 3 (
R
epresentations and
Warranties of the Obligors)
to the Deed are true and correct on the date hereof and will be true on the Closing Date, in each case by reference to the facts and circumstances subsisting on such dates; and
|
|
(b) |
no Default or Event of Default (each as defined in the Existing Loan Facility) under the Existing Loan Facility has occurred and no event exists, or would
occur from the issuance of the Notes.
|
1. |
Representations and Warranties of the Obligors
|
1.1 |
Status
|
|
(a) |
Each Obligor is a corporation, duly incorporated and validly existing under the law of its Original Jurisdiction.
|
|
(b) |
Each Obligor has power and authority to own its assets and to carry on its business as it is now being conducted within the scope of its purpose.
|
1.2 |
Binding obligations
|
|
(a) |
the obligations expressed to be assumed by each Obligor in each Transaction Document to which it is, or is to be, a party are or, when entered into by it,
will be legal, valid, binding and enforceable obligations; and
|
|
(b) |
(without limiting the generality of paragraph 1.2(a) above) each Security Document to which an Obligor is, or will be, a party, creates or will create the
Security Interests which that Security Document purports to create and those Security Interests are or will be valid and effective.
|
1.3 |
Non-conflict
|
|
(a) |
any law or regulation applicable to any Obligor;
|
|
(b) |
the Constitutional Documents of any Obligor; or
|
|
(c) |
any agreement or other instrument binding upon any Obligor or its assets,
|
1.4 |
Power and authority
|
|
(a) |
Each Obligor has the power to enter into, perform and deliver and comply with its obligations under, and has taken all necessary actions to authorise its
entry into, performance and delivery of, and compliance with, each Transaction Document to which it is, or is to be, a party and each of the transactions contemplated by those documents.
|
|
(b) |
No limitation on any Obligor’s powers to borrow, create security or give guarantees will be exceeded as a result of any transaction under, or the entry into
any Transaction Document to which such Obligor is, or is to be, a party.
|
1.5 |
Validity and admissibility in evidence
|
|
(a) |
All Authorisations required:
|
|
(i) |
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations under each Transaction Document to which it is a party;
|
|
(ii) |
to make each Transaction Document to which it is a party admissible in evidence in its Relevant Jurisdictions; and
|
|
(iii) |
to ensure that the Transaction Security has the priority and ranking contemplated in the Security Documents,
|
|
(b) |
All Authorisations necessary for the conduct of the business, trade and ordinary activities of each Obligor have been obtained or effected and are in full
force and effect, if failure to obtain or effect those Authorisations is reasonably likely to have a Material Adverse Effect.
|
1.6 |
Governing law and enforcement
|
|
(a) |
The choice of governing law of any Transaction Document will be recognised and enforced in each Obligor’s Relevant Jurisdictions.
|
|
(b) |
Any judgment obtained in relation to any Transaction Document in the jurisdiction of the governing law of that Transaction Document will be recognised and
enforced in the relevant Obligor’s Relevant Jurisdictions.
|
1.7 |
No misleading information
|
|
(a) |
Any factual information contained in the Information Package is true and accurate in all material respects as at the date of the relevant report or document
containing the information or (as the case may be) as at the date the information is expressed to be given.
|
|
(b) |
Any financial projection or forecast contained in the Information Package has been prepared on the basis of recent historical information and on the basis
of reasonable assumptions and was fair (as at the date of the relevant report or document containing the projection or forecast) and arrived at after careful consideration.
|
|
(c) |
The expressions of opinion or intention provided by or on behalf of an Obligor for the purposes of the Information Package were made after careful
consideration and (as at the date of the relevant report or document containing the expression of opinion or intention) were fair and based on reasonable grounds.
|
|
(d) |
No event or circumstance has occurred or arisen and no information has been omitted from the Information Package and no information has been given or
withheld that results in the information, opinions, intentions, forecasts or projections contained in the Information Package being untrue or misleading in any material respect.
|
|
(e) |
For the purposes of this paragraph 1.7,
Information Package
means any information provided by any Obligor to any of the Finance Parties in connection with the Transaction Documents or the transactions referred to in them.
|
1.8 |
Pari passu ranking
|
1.9 |
Ranking and effectiveness of security
|
|
(a) |
the Transaction Security has (or will have when the relevant Security Documents have been executed) the priority which it is expressed to have in the
Security Documents;
|
|
(b) |
the Charged Property is not subject to any Security Interest other than Permitted Security Interests; and
|
|
(c) |
the Transaction Security will constitute perfected security on the assets described in the Security Documents.
|
1.10 |
Centre of main interests and establishments
|
1.11 |
Ownership of Charged Property
|
1.12 |
No insolvency
|
1.13 |
No filing or stamp taxes
|
1.14 |
Deduction of Tax
|
1.15 |
Tax compliance
|
|
(a) |
No Obligor (other than the Charterer) is materially overdue in the filing of any Tax returns or overdue in the payment of any amount in respect of Tax
exceeding $500,000 (or its equivalent in any other currency).
|
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against any Obligor (other than the Charterer) with respect to
Taxes such that a liability of, or claim against, any Obligor (other than the Charterer) is reasonably likely to arise for an amount for which adequate reserves have not been provided and which are reasonably expected to have a
Material Adverse Effect.
|
|
(c) |
Each Obligor (other than the Charterer) is resident for Tax purposes only in its Original Jurisdiction.
|
1.16 |
Other Tax matters
|
1.17 |
Pension exposure
|
1.18 |
No Default
|
|
(a) |
No Default is continuing or is reasonably expected to result from the issuance of the Notes 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 (or, with the expiry of a grace period, the giving of notice, the making of any
determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on any Obligor or to which any Obligor’s assets
are subject which is likely to have a Material Adverse Effect.
|
1.19 |
No proceedings
|
|
(a) |
Except as advised in writing to the Agent prior to the date of this Note Purchase Deed, no litigation, arbitration or administrative proceedings or
investigations of, or before, any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of any Obligor’s knowledge and belief (having
made due and careful enquiry)) been started or threatened against any 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 is
reasonably likely to have a Material Adverse Effect has (to the best of any Obligor’s knowledge and belief (having made due and careful enquiry)) been made against any Obligor or any other Group Member.
|
1.20 |
No breach of laws
|
|
(a) |
No Obligor or other Group Member has breached any law or regulation.
|
|
(b) |
No labour dispute is current or, to the best of any Obligor’s knowledge and belief (having made due and careful enquiry), threatened against any Obligor or
other Group Member which is reasonably expected to have a Material Adverse Effect.
|
1.21 |
Anti-corruption law
|
1.22 |
Security and Financial Indebtedness
|
|
(a) |
No Security Interest exists over all or any of the present or future assets of any Obligor in breach of this Note Purchase Deed.
|
|
(b) |
No Obligor has any Financial Indebtedness outstanding in breach of this Note Purchase Deed.
|
1.23 |
Shares
|
|
(a) |
The shares of the Guarantor are fully paid and not subject to any option to purchase or similar rights.
|
|
(b) |
The Constitutional Documents of the Guarantor do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the
Security Documents.
|
|
(c) |
There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share
or loan capital of the Guarantor (including any option or right of pre-emption or conversion).
|
1.24 |
Ownership of Guarantor
|
1.25 |
Listing
|
1.26 |
Accounting Reference Date
|
1.27 |
No adverse consequences
|
|
(a) |
It is not necessary under the laws of the Relevant Jurisdictions of any Obligor:
|
|
(i) |
in order to enable any Finance Party to enforce its rights under any Finance Document to which it is, or is to be, a party; or
|
|
(ii) |
by reason of the execution of any Finance Document or the performance by any Obligor of its obligations under any Finance Document, that any Finance Party
should be licensed, qualified or otherwise entitled to carry on business in any of such Relevant Jurisdictions.
|
|
(b) |
No Finance Party is or will be deemed to be resident, domiciled or carrying on business in any Relevant Jurisdiction of any Obligor by reason only of the
execution, performance and/or enforcement of any Finance Document.
|
1.28 |
Copies of documents
|
1.29 |
No breach, etc of any shipbuilding contract or related
refund guarantee
|
|
(a) |
No Group Member nor (so far as the Obligors are aware) any other person is in breach of any shipbuilding contract to which it is a party nor has anything
occurred which entitles or may entitle any party to rescind or terminate it or decline to perform their obligations under it or which would render it illegal, invalid or unenforceable.
|
|
(b) |
No dispute has occurred under any shipbuilding contract relating to the construction of any vessel of any Group Member or any Obligor’s Affiliate by the
relevant Builder or under any refund guarantee issued in respect of the obligations of the relevant Builder under that shipbuilding contract.
|
1.30 |
No immunity
|
1.31 |
Address commission
|
1.32 |
Sanctions
|
|
(a) |
No Obligor, nor any of its Affiliates nor any of their respective directors, officers, employees, agents or representatives:
|
|
(i) |
has breached any Sanctions;
|
|
(ii) |
is a Restricted Person; or
|
|
(iii) |
has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions.
|
|
(b) |
No proceeds of the Notes:
|
|
(i) |
shall be made available, directly or indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or indirectly, applied in
a manner or for a purpose prohibited by applicable Sanctions; or
|
|
(ii) |
will be used by any Obligor:
|
|
(A) |
to finance equipment or sectors under embargo decisions of the United Nations or the World Bank; or
|
|
(B) |
in breach of the provisions of any Sanctions.
|
1.33 |
No Money Laundering
|
1.34 |
Environmental matters
|
|
(a) |
No Environmental Law applicable to any Fleet Vessel and/or any Obligor or other Group Member has been violated.
|
|
(b) |
All consents, licences and approvals required under such Environmental Laws have been obtained and are currently in force.
|
|
(c) |
No Environmental Claim has been made or, to the best of any Obligor’s knowledge and belief (having made due and careful enquiry), is threatened or pending
against any Obligor or other Group Member or any Fleet Vessel where that claim might have a Material Adverse Effect and there has been no Environmental Incident which has given, or is reasonably expected to give, rise to such a claim.
|
1.35 |
No breach of any Charter Document
|
1.36 |
Collateral Ship status
|
|
(a) |
registered in the name of the Guarantor through the relevant Registry as a ship under the laws and flag of the relevant Flag State;
|
|
(b) |
operationally seaworthy and in every way fit for service;
|
|
(c) |
classed with the relevant Classification free of all requirements and recommendations of the relevant Classification Society; and
|
|
(d) |
insured in the manner required by the Finance Documents.
|
1.37 |
Collateral Ship’s employment
|
|
(a) |
have been delivered, and accepted for service, under the relevant Charter; and
|
|
(b) |
save for the relevant Charter, be free of any other charter commitment which, if entered into after that date, would require approval under the Finance
Documents.
|
1.38 |
US Representations
|
|
(a) |
Issuance of the Notes
. The issuance of the Notes are
duly authorized and upon issuance in accordance with the terms of this Note Purchase Deed shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens,
pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances with respect to the issuance thereof. Subject to the accuracy of the representations and warranties of the Note Purchasers in
this Note Purchase Deed, the offer and issuance by the Issuer of the Notes is exempt from registration under the 1933 Act.
|
|
(b) |
No General Solicitation
. Neither the Issuer, nor any
of its Subsidiaries or affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the
Notes.
|
|
(c) |
No Integrated Offering
. None of the Issuer, its
Subsidiaries or any of their affiliates, nor any person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require
registration of the issuance of any of the Notes under the 1933 Act, whether through integration with prior offerings or otherwise, or cause this offering of the Loan Notes to require approval of stockholders of the Issuer for
purposes of the 1933 Act or under any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on which any of the securities of the
Issuer are listed or designated for quotation. None of the Issuer, its Subsidiaries, their affiliates nor any person acting on their behalf will take any action or steps that would require registration of the issuance of any of the
Notes under the 1933 Act or cause the offering of any of the Notes to be integrated with other offerings of securities of the Issuer.
|
1.39 |
Times when representations are made
|
|
(a) |
All of the representations and warranties set out in this Schedule 3 (
Representations and Warranties of the Obligors
) are deemed to be made on the dates of:
|
|
(i) |
this Note Purchase Deed;
|
|
(ii) |
the first Note Issuance Notice; and
|
|
(iii) |
the Closing Date.
|
|
(b) |
The Repeating Representations are deemed to be made on the first day of each Interest Period.
|
|
(c) |
Each representation or warranty deemed to be made after the date of this Note Purchase Deed shall be deemed to be made by reference to the facts and
circumstances existing at the date the representation or warranty is deemed to be made.
|
1. |
Information Covenants
|
1.1 |
Undertaking to comply
|
1.2 |
Definitions
|
1.3 |
Financial statements
|
|
(a) |
The Issuer shall supply to the Agent as soon as the same become available, but in any event within 120 days after the end of each Financial Year (but
commencing with the Financial Year ending 31 December 2018) the audited consolidated financial statements of the Issuer for that Financial Year.
|
|
(b) |
The Issuer shall supply to the Agent as soon as the same become available, but in any event within 90 days after the end of the first financial half-year of
each of its Financial Years (but commencing with the financial half-year ending 30 June 2019):
|
|
(i) |
the unaudited (or audited if available) financial statements of the Issuer for that financial half-year; and
|
|
(ii) |
the unaudited (or audited if available) consolidated financial statements of the Issuer for that financial half-year.
|
1.4 |
Provision and contents of Compliance Certificate
|
|
(a) |
The Issuer shall supply a Compliance Certificate to the Agent with each set of Annual Financial Statements and each set of Semi-Annual Financial Statements,
in each case, delivered pursuant to paragraph 1.3 (
Financial Statements
).
|
|
(b) |
Each Compliance Certificate shall set out (in reasonable detail) computations as to compliance with paragraph 2 (
Financial Covenants
).
|
|
(c) |
Each Compliance Certificate shall be signed by a duly authorised signatory of the Issuer.
|
1.5 |
Requirements as to financial statements
|
|
(a) |
The Issuer shall procure that each set of Annual Financial Statements and Semi-annual Financial Statements includes a profit and loss account, a balance
sheet and a cashflow statement and that, in addition, each set of Annual Financial Statements shall be audited by the Auditors.
|
|
(b) |
Each set of financial statements delivered pursuant to paragraph 1.3 (
Financial Statements
) shall:
|
|
(i) |
be prepared in accordance with GAAP; and
|
|
(ii) |
fairly present, and be certified by a director of the relevant company as fairly presenting, its financial condition and operations as at the date as at
which those financial statements were drawn up and, in the case of the Annual Financial Statements, shall be accompanied by any letter addressed to the management of the relevant company by the Auditors and accompanying those Annual
Financial Statements; and
|
|
(iii) |
in the case of Annual Financial Statements, not be the subject of any qualification in the Auditors’ opinion.
|
1.6 |
Year-end
|
1.7 |
Information: miscellaneous
|
|
(a) |
whilst an Event of Default is continuing and as soon as practicable after the time when they are dispatched, copies of all documents dispatched by any
Obligor to its creditors generally (or any class of them);
|
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending
against any Obligor or other Group Member, and which, if adversely determined, might 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 Obligor or other Group Member and which is reasonably likely to have a Material Adverse Effect;
|
|
(d) |
promptly upon becoming aware of them, the details of any claim, action, suit, proceeding or investigation with respect to Sanctions against any Obligor or
any of its Affiliates or any of its directors, officers, employees, agents or representatives;
|
|
(e) |
promptly, such information as the Agent or the Security Agent may reasonably require about the Charged Property and compliance of the Obligors with the
terms of any Security Documents; and
|
|
(f) |
promptly on request, such further information regarding the financial condition, assets and operations of any Obligor as any Finance Party through the Agent
may reasonably request,
|
1.8 |
Notification of Default
|
|
(i) |
The Issuer shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon any Obligor becoming aware of its
occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
|
(ii) |
Promptly upon a request by the Agent, the Issuer shall supply to the Agent a certificate signed by two of its directors 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).
|
1.9 |
Sufficient copies
|
1.10 |
“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 Note
Purchase Deed;
|
|
(ii) |
any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Note Purchase Deed; or
|
|
(iii) |
a proposed assignment by a Note Purchaser of any of its rights under this Note Purchase Deed to a party that is not already a Note Purchaser prior to such
assignment,
|
|
(b) |
Each Finance Party shall, promptly upon the request of the Agent or the Security Agent, supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Agent or the Security Agent (for itself) in order for it 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.
|
2. |
Financial Covenants
|
2.1 |
Financial definitions
|
|
(a) |
cash in hand or on deposit with any bank; and
|
|
(b) |
any other instrument, security or investment approved by the Note Purchasers,
|
|
(a) |
Fleet Vessels; and
|
|
(b) |
JV Vessels, as adjusted to reflect the relevant ownership percentage in such JV Vessels of the relevant Group Member,
|
|
(a) |
the Group’s liabilities in respect of principal under any Financial Indebtedness (provided however that any principal under any Financial Indebtedness
incurred only by the Issuer which is not secured by security provided over an asset of the Group, shall not be taken into account); and
|
|
(b) |
all liabilities of all Joint Ventures in respect of principal under any Financial Indebtedness secured by security provided over a JV Vessel, each such
liability adjusted to reflect the relevant Group Member’s ownership percentage in such JV Vessel.
|
2.2 |
Financial condition
|
|
(a) |
Leverage ratio:
the ratio of Total Net Debt to Fleet
Market Value shall, at all times during and in respect of each Measurement Period, be not higher than 0.75:1.00.
|
|
(b) |
Minimum liquidity:
at all times the Cash and Cash
Equivalents shall not be less than the aggregate of:
|
|
(i) |
$750,000 multiplied by the number of the Fleet Vessels; and
|
|
(ii) |
$500,000 multiplied by the number of the Chartered Vessels.
|
2.3 |
Financial testing
|
3. |
General undertakings
|
3.1 |
Undertaking to comply
|
3.2 |
Use of proceeds
|
3.3 |
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 Agent of,
|
|
(i) |
enable it to perform its obligations under the Transaction Documents;
|
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence of any Transaction Document; and
|
|
(iii) |
carry on its business where failure to do so has, or is reasonably likely to have, a Material Adverse Effect.
|
3.4 |
Compliance with laws
|
3.5 |
Anti-corruption law
|
|
(a) |
No Obligor shall (and shall ensure that no other Group Member will) directly or indirectly use the proceeds of the Notes for any purpose which would breach
the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions.
|
|
(b) |
Each Obligor shall:
|
|
(i) |
conduct its businesses in compliance with applicable anti-corruption laws; and
|
|
(ii) |
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
3.6 |
Bribery and corruption
|
|
(a) |
No Obligor nor any of its agents, employees, directors or officers has engaged or shall engage (and shall ensure that none of its Affiliates nor any of its
agents, employees, directors or officers has engaged or will engage) in any Relevant Jurisdiction in:
|
|
(i) |
Corrupt Practices, Fraudulent Practices, Collusive Practices or Coercive Practices, including the procurement or the execution of any contract for goods or
works relating to its functions;
|
|
(ii) |
Money Laundering or acted in breach of any applicable law relating to Money Laundering; or
|
|
(iii) |
the Financing of Terrorism.
|
|
(b) |
Without prejudice to the generality paragraph 3.6(a):
|
|
(i) |
No Obligor nor any of its agents, employees, directors or officers will (and shall ensure that none of its Affiliates nor any of its agents, employees,
directors or officers will) directly or indirectly use the proceeds of the Notes for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other
jurisdictions;
|
|
(ii) |
each Obligor shall (and shall ensure that each of its Affiliates) and any of their agents, employees, directors or officers:
|
|
(A) |
conducts its businesses in compliance with the Bribery Act 2010 and the United States Foreign Corrupt Practices Act of 1977; and
|
|
(B) |
maintains policies and procedures designed to promote and achieve compliance with such laws.
|
|
(c) |
For the purposes of this paragraph 3.6 and paragraph 1.33 (
No
Money Laundering
) of Schedule 3 (
Representations and Warranties of the Obligors
, the following definitions shall apply:
|
|
(i) |
the conversion or transfer of property, knowing it is derived from a criminal offence, for the purpose of concealing or disguising its illegal origin or of
assisting any person who is involved in the commission of the crime to evade the legal consequences of its actions;
|
|
(ii) |
the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property knowing that it
is derived from a criminal offence; or
|
|
(iii) |
the acquisition, possession or use of property knowing at the time of its receipt that it is derived from a criminal offence.
|
3.7 |
Tax compliance
|
|
(a) |
Each Obligor (other than the Charterer) shall (and shall ensure that each other Group Member will) pay and discharge all Taxes imposed upon it or its assets
within the time period allowed without incurring penalties in excess of $500,000 (or its equivalent in any other currency) in aggregate, unless and only to the extent that:
|
|
(i) |
such payment is being contested in good faith;
|
|
(ii) |
adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements
delivered to the Agent under paragraph 1.3 (
Financial Statements
) above; and
|
|
(iii) |
such payment can be lawfully withheld.
|
|
(b) |
Except as approved by the Note Purchasers, each Obligor (other than the Charterer) shall maintain its residence for Tax purposes in its Original
Jurisdiction and ensure that it is not resident for Tax purposes in any other jurisdiction.
|
3.8 |
Change of business
|
3.9 |
Merger
|
3.10 |
Pension exposure
|
3.11 |
Further assurance
|
|
(a) |
Each Obligor shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions)
as the Agent may reasonably specify (and in such form as the Agent or the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
|
(i) |
to perfect the Security Interests created or intended to be created by that Obligor under, or evidenced by, the Security 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 Security Documents) or for the exercise of any rights, powers and remedies of the
Security Agent and/or any other Finance Parties provided by or pursuant to the Finance Documents or by law;
|
|
(ii) |
to confer on the Security Agent and/or any other Finance Parties Security Interests 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 Security Documents;
|
|
(iii) |
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Security Documents; and/or
|
|
(iv) |
to facilitate the accession by a New Note Purchaser to any Security Document following an assignment in accordance with clause 19 (
Assignment and Transfers
).
|
|
(b) |
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 Agent and/or any other Finance Parties by or pursuant to the Finance Documents.
|
3.12 |
Negative pledge in respect of Charged Property and Obligor
shares
|
3.13 |
Sanctions
|
|
(a) |
Each Obligor shall, and shall procure that any Affiliate of each Obligor shall, ensure that none of their respective directors, officers, agents, employees
or persons acting on behalf of the foregoing, is a Restricted Person or acts directly or indirectly on behalf of a Restricted Person.
|
|
(b) |
No Obligor shall, and shall procure that none of its Affiliates shall, use any revenue or benefit derived from any activity or dealing with a Restricted
Person in discharging any obligation due or owing to the Finance Parties.
|
|
(c) |
Each Obligor shall not, and shall procure that each of its Affiliates will not, credit proceeds from any activity or dealing with a Restricted Person to any
bank account held with any Finance Party in its name or in the name of any other person.
|
|
(d) |
Each Obligor shall, and shall ensure that each of its Affiliates take measures to ensure compliance with Sanctions.
|
|
(e) |
Each Obligor shall, and shall procure that each of its Affiliates shall, to the extent permitted by law, promptly upon becoming aware of them, supply to the
Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.
|
|
(f) |
Without prejudice to this paragraph 3.13 and limb (s) (
Sanctions
)
of the definition of Event of Default, each Obligor shall, and shall procure that each of its Affiliates and the Collateral Ship shall, not do any business relating to Iran or any Iranian owned or incorporated, unless the Agent
approves so in writing.
|
3.14 |
Environmental matters
|
|
(a) |
The Agent will be notified as soon as reasonably practicable of any Environmental Claim being made against any Obligor or other Group Member or any Fleet
Vessel which, if successful to any extent, is reasonably expected to have a Material Adverse Effect and of any Environmental Incident which may give rise to such a claim and will be kept regularly and promptly informed in reasonable
detail of the nature of, and response to, any such Environmental Incident and the defence to any such claim.
|
|
(b) |
Environmental Laws (and any consents, licences or approvals obtained under them) applicable to Fleet Vessels will not be violated.
|
4. |
Dealings with Collateral Ship
|
4.1 |
Undertaking to comply
|
4.2 |
Sale or other disposal of Collateral Ship
|
4.3 |
Chartering
|
|
(a) |
a bareboat or demise charter or passes possession and operational control of the Collateral Ship to another person;
|
|
(b) |
of a fixed duration exceeding 13 calendar months;
|
|
(c) |
on terms as to payment or amount of hire which are materially less beneficial to it than the terms which at that time could reasonably be expected to be
obtained on the open market for vessels of the same age and type as the Collateral Ship under charter commitments of a similar type and period; or
|
|
(d) |
to another Obligor or Group Member.
|
|
(e) |
Further, without prejudice to the rights of the Finance Parties under the provisions of this paragraph 4.3 and any other provisions of the Finance
Documents, the Guarantor shall advise the Agent promptly of any proposed charter commitment in respect of the Collateral Ship of a fixed duration exceeding 13 calendar months, and:
|
|
(i) |
deliver a copy of each such charter commitment to the Agent forthwith after it has been entered into;
|
|
(ii) |
forthwith following a demand made by the Agent (acting on the instructions of the Note Purchasers):
|
|
(A) |
execute a charter assignment in the form similar to the relevant Charter Assignment of any such charter commitment in favour of the Security Agent and any
notice of assignment required in connection therewith; and
|
|
(B) |
procure the service of any such notice of assignment on the relevant charterer and, unless expressly freely assignable, the acknowledgement of such notice
by the relevant charterer;
|
|
(iii) |
deliver to the Agent such documents and evidence of the type referred to in Schedule 3 (
Conditions precedent
) of the Post-Delivery Facility Agreement, in relation to any such charter assignment or any other related matter referred to in this paragraph 4.3(e)(iii) as the Agent (acting
on the instructions of the Note Purchasers in their sole discretion) shall require; and
|
|
(iv) |
pay on the Agent’s demand all documented legal costs and other costs incurred by the Agent and/or any other Finance Party in connection with or in relation
to any such charter assignment or any other related matter referred to in this paragraph 4.3(e)(iv).
|
4.4 |
Sharing of Earnings
|
4.5 |
Payment of Earnings
|
|
(a) |
The Guarantor’s Earnings from the Collateral Ship shall be paid in the way required by the General Assignment.
|
|
(b) |
If any Earnings in respect of the Collateral Ship are held by brokers or other agents, they shall be paid to the Security Agent, if it requires this after
the Earnings have become payable to it under the General Assignment.
|
4.6 |
Evidence of payments
|
4.7 |
Collateral Ship’s name and registration
|
|
(a) |
The Collateral Ship’s name shall only be changed with the prior written consent of the Agent.
|
|
(b) |
The Collateral Ship shall be registered with the relevant Registry under the laws of its Flag State. Except with approval, the Collateral Ship shall not be
registered under any other flag or at any other port or fly any other flag (other than that of its Flag State). If that registration is for a limited period, it shall be renewed at least 45 days before the date it is
|
|
(c) |
Nothing will be done and no action will be omitted if that might result in such registration being forfeited or imperilled or the Collateral Ship being
required to be registered under the laws of another state of registry.
|
4.8 |
Lay up
|
4.9 |
Manager
|
4.10 |
Copy of Mortgage on board
|
4.11 |
Notice of Mortgage
|
4.12 |
Conveyance on default
|
5. |
Condition and operation of Collateral Ship
|
5.1 |
Undertaking to comply
|
5.2 |
Defined terms
|
5.3 |
Repair
|
5.4 |
Modification
|
5.5 |
Removal of parts
|
5.6 |
Third party owned equipment
|
5.7 |
Maintenance of class; compliance with laws and codes
|
5.8 |
Surveys
|
5.9 |
Inspection and notice of dry-docking
|
5.10 |
Prevention of arrest
|
5.11 |
Release from arrest
|
5.12 |
Information about Collateral Ship
|
5.13 |
Notification of certain events
|
|
(a) |
any damage to the Collateral Ship where the cost of the resulting repairs is reasonably likely to exceed the relevant Major Casualty Amount;
|
|
(b) |
any occurrence which is reasonably likely to result in the Collateral Ship becoming a Total Loss;
|
|
(c) |
any requisition of the Collateral Ship for hire;
|
|
(d) |
any Environmental Incident involving the Collateral Ship and Environmental Claim being made in relation to such an incident;
|
|
(e) |
any withdrawal of any applicable operating certificate;
|
|
(f) |
the receipt of notification that any application for such a certificate has been refused;
|
|
(g) |
any requirement or recommendation made in relation to the Collateral Ship by any insurer or the relevant Classification Society or by any competent
authority which is not, or cannot be, complied with in the manner or time required or recommended; and
|
|
(h) |
any arrest or detention of the Collateral Ship or any exercise or purported exercise of a lien or other claim on the Collateral Ship or its Earnings or
Insurances.
|
5.14 |
Payment of outgoings
|
5.15 |
Evidence of payments
|
|
(a) |
the wages and allotments and the insurance and pension contributions of the Collateral Ship’s crew are being timely and regularly paid;
|
|
(b) |
all deductions from its crew’s wages in respect of any applicable Tax liability are being properly accounted for; and
|
|
(c) |
the Collateral Ship’s master has no claim for disbursements other than those incurred by him or her in the ordinary course of trading on the voyage then in
progress.
|
5.16 |
Repairers’ liens
|
5.17 |
Survey report
|
5.18 |
Lawful use
|
|
(a) |
in any way or in any activity which is unlawful under international law or the domestic laws of any relevant country;
|
|
(b) |
in carrying illicit or prohibited goods;
|
|
(c) |
in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated; or
|
|
(d) |
if there are hostilities in any part of the world (whether war has been declared or not), in carrying contraband goods,
|
5.19 |
War zones
|
6. |
Insurance
|
6.1 |
Undertaking to comply
|
6.2 |
Insurance terms
|
6.3 |
Coverage required
|
|
(a) |
against fire and usual marine risks (including excess risks) and war risks (including war protection and indemnity risks and terrorism risks) on an agreed
value basis, for at least its minimum hull cover and no less than its market value;
|
|
(b) |
against P&I risks for the highest amount then available in the insurance market for vessels of similar age, size and type as the Collateral Ship (but,
in relation to liability for oil pollution, for an amount of not less than $1,000,000,000);
|
|
(c) |
against such other risks (excluding loss of hire) and matters which the Agent notifies it that it considers reasonable for a prudent shipowner or operator
to insure against at the time of that notice (having regard to general insurance market practice and law at the time but always excluding any loss of earnings cover); and
|
|
(d) |
on terms which comply with the other provisions of this paragraph 6 (
Insurance
).
|
6.4 |
Placing of cover
|
|
(a) |
in the name of the Guarantor and no other person (other than the Security Agent (and any other Finance Party required by the Agent) if required by the
Agent) (unless such other person is approved and, if so required by the Agent, has duly executed and delivered a second priority assignment of its interest in the Collateral Ship’s Insurances to the Security Agent (and any other
Finance Party required by the Agent) in an approved
|
|
(b) |
if the Agent so requests, in the joint names of the Guarantor and the Security Agent (and any other Finance Party required by the Agent) (and, to the extent
reasonably practicable in the insurance market, without liability on the part of the Security Agent or such Finance Party for premiums or calls);
|
|
(c) |
in dollars or another approved currency;
|
|
(d) |
arranged through approved brokers or direct with approved insurers or protection and indemnity or war risks associations;
|
|
(e) |
in full force and effect; and
|
|
(f) |
on approved terms and with approved insurers or associations.
|
6.5 |
Deductibles
|
6.6 |
Mortgagee’s insurance
|
|
(a) |
a mortgagee’s interest insurance and a mortgagee’s additional perils (all P&I risks) cover for the benefit of the Finance Parties for an amount up to
120 per cent of the Collateral Loan; and
|
|
(b) |
any other insurance cover which the Agent reasonably requires (having regard to general insurance market practice and law at the time) in respect of any
Finance Party’s interests and potential liabilities (whether as mortgagee of the Collateral Ship or beneficiary of the Security Documents).
|
6.7 |
Fleet liens, set off and cancellations
|
|
(a) |
set off against any claims in respect of the Collateral Ship any premiums due in respect of any of such other vessels insured; or
|
|
(b) |
cancel that cover because of non-payment of premiums in respect of such other vessels,
|
6.8 |
Payment of premiums
|
6.9 |
Details of proposed renewal of Insurances
|
6.10 |
Instructions for renewal
|
6.11 |
Confirmation of renewal
|
6.12 |
P&I guarantees
|
6.13 |
Insurance documents
|
6.14 |
Letters of undertaking
|
6.15 |
Insurance Notices and Loss Payable Clauses
|
6.16 |
Insurance correspondence
|
6.17 |
Qualifications and exclusions
|
6.18 |
Independent report
|
6.19 |
Collection of claims
|
6.20 |
Employment of Collateral Ship
|
6.21 |
Declarations and returns
|
6.22 |
Application of recoveries
|
6.23 |
Settlement of claims
|
6.24 |
Change in insurance requirements
|
7. |
Chartering undertakings
|
7.1 |
Undertaking to comply
|
7.2 |
Variations
|
7.3 |
Releases and waivers
|
7.4 |
Termination of Charter
|
7.5 |
Charter performance
|
7.6 |
Payment of Charter Earnings
|
7.7 |
Notice of assignment
|
|
(a) |
subject to paragraph 7.7(b) below, shall ensure that the Agent receives a copy of that notice acknowledged by the relevant addressee; or
|
|
(b) |
if such Charter Documents are freely assignable, the Guarantor shall (and it shall procure that the Charterer will) use commercially reasonable efforts to
ensure that the Agent receives a copy of that notice acknowledged by the relevant addressee,
|
8. |
Bank accounts
|
8.1 |
Undertaking to comply
|
8.2 |
Operating Account
|
|
(a) |
The Issuer and the Guarantor shall each be the holder of one Account with an Account Bank which is designated as the “Operating Account” for the purposes of
the Finance Documents.
|
|
(b) |
The Earnings of the Guarantor shall be paid by the persons from whom they are due to the Operating Account of the Guarantor and any dividends and capital
returns payable by the Guarantor to the Issuer shall be paid to the Operating Account of the Issuer unless, in each case, required to be paid to the Security Agent under the relevant Finance Documents.
|
|
(c) |
The Issuer shall not withdraw amounts standing to the credit of its Operating Account except as permitted by paragraph 8.2(e) below.
|
|
(d) |
The Guarantor shall not withdraw amounts standing to the credit of its Operating Account except as permitted by paragraph 8.2(e) below.
|
|
(e) |
If there is no continuing Event of Default, the Issuer may withdraw the following amounts from the relevant Operating Account for:
|
|
(i) |
payments then due to Finance Parties under the Finance Documents (other than payments due in respect of a prepayment (unless it is a voluntary prepayment
under clause 8.2(d) (
Optional Redemption in Full
) or 8.2(e) (
Optional Redemption in Part
)); and
|
|
(ii) |
payments in the ordinary course of its business which are permitted (or not prohibited) by this Note Purchase Deed and/or the other Finance Documents.
|
|
(f) |
If there is no continuing Event of Default, the Guarantor may withdraw any amounts from the relevant Operating Account for any purpose which is permitted
(or not prohibited) by this Note Purchase Deed and the relevant Post-Delivery Finance Documents.
|
8.3 |
Other provisions
|
|
(a) |
An Account may only be designated for the purposes described in this paragraph 8 (
Bank accounts
) if:
|
|
(i) |
such designation is made in writing by the Agent and acknowledged by the relevant Account Holder(s) and specifies the name and address of the Account Bank
and the number and any designation or other reference attributed to the Account;
|
|
(ii) |
an Account Security has been duly executed and delivered by the relevant Account Holder(s) in favour of the Security Agent (and any other Finance Party
required by the Agent);
|
|
(iii) |
any notice required by the Account Security to be given to an Account Bank has been given to, and acknowledged by, the Account Bank in the form required by
the relevant Account Security; and
|
|
(iv) |
the Agent, or its duly authorised representative, has received such documents and evidence it may require in relation to the Account and the relevant
Account Security including documents and evidence of the type referred to in clause 7 (
Conditions Precedent
) in relation to the
Account and the relevant Account Security.
|
|
(b) |
The rates of payment of interest and other terms regulating any Account will be a matter of separate agreement between the relevant Account Holder(s) and an
Account Bank.
|
|
(c) |
If an Account is a fixed term deposit account, the relevant Account Holder(s) may select the terms of deposits until the relevant Account Security has
become enforceable and the Security Agent directs otherwise.
|
|
(d) |
The relevant Account Holder(s) shall not close any Account or alter the terms of any Account from those in force at the time it is designated for the
purposes of this paragraph 8 (
Bank accounts
) or waive any of its rights in relation to an Account except with approval.
|
|
(e) |
The relevant Account Holder(s) shall deposit with the Security Agent all certificates of deposit, receipts or other instruments or securities relating to
any Account, notify the Security Agent of any claim or notice relating to an Account from any other party and provide the Agent with any other information it may reasonably request concerning any Account.
|
|
(f) |
Each of the Agent and the Security Agent agrees that if it is an Account Bank in respect of an Account then there will be no restrictions on creating a
Security Interest over that Account as contemplated by this Note Purchase Deed and it shall not (except with the approval of the Note Purchasers) exercise any right of combination, consolidation or setoff which it may have in respect
of that Account in a manner adverse to the rights of the other Finance Parties.
|
9. |
Business restrictions
|
9.1 |
Undertaking to comply
|
9.2 |
General negative pledge
|
|
(a) |
In this paragraph 9.2,
Quasi-Security
means an
arrangement or transaction described in paragraph 9.3 (
Financial indebtedness
) below.
|
|
(b) |
The Issuer shall not create or permit to subsist any Security Interest over any of its shares in the Guarantor.
|
|
(c) |
(Without prejudice to paragraphs 9.3 (
Financial
indebtedness
) and 9.7 (
Disposals
) below), the Issuer shall not:
|
|
(i) |
sell, transfer, factor or otherwise dispose of any of its receivables on recourse terms;
|
|
(ii) |
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
|
|
(iii) |
enter into any other preferential arrangement having a similar effect,
|
|
(d) |
Paragraphs 9.2(b) and 9.2(c) above do not apply to any Security Interest or (as the case may be) Quasi-Security, those granted or expressed to be granted by
any of the Security Documents;
|
9.3 |
Financial Indebtedness
|
|
(a) |
Financial Indebtedness incurred under the Finance Documents;
|
|
(b) |
Financial Indebtedness incurred under the Family Trading Facility or any other shareholders’ loan, provided always that such Financial Indebtedness:
|
|
(i) |
is not guaranteed by any Group Member (other than the Issuer) nor is it secured by means of a Security Interest over an asset of a Group Member (including a
Fleet Vessel);
|
|
(ii) |
is subject to a duly executed subordination agreement between the Finance Parties and the relevant creditor(s) in an agreed form;
|
|
(iii) |
without prejudice to the generality of sub-paragraph (ii) above:
|
|
(A) |
is fully subordinate in all respects to this Note Purchase Deed;
|
|
(B) |
does not provide under its terms for any cash repayment or prepayment obligations of the relevant Group Member prior to the Final Maturity Date (other than
the prepayment obligation/right set out in paragraph 9.12 (
Family Trading Facility
) below);
|
|
(C) |
does not provide for the payment of interest in cash or preferred shares which provide for the payment of cash dividends, in each case prior to the Final
Maturity Date; and
|
|
(D) |
does not provide for its conversion into preferred shares of the Issuer or of any other Group Member on terms which provide for such preferred shares paying
a cash dividend to their holders, in each case prior to the Final Maturity Date;
|
|
(iv) |
Financial Indebtedness permitted under paragraph 9.4 (
Guarantees
)
below; and
|
|
(v) |
Financial Indebtedness permitted under paragraph 9.5 (
Loans
and credit
) below.
|
9.4 |
Guarantees
|
9.5 |
Loans and credit
|
9.6 |
Bank accounts, operating leases and other financial
transactions
|
|
(a) |
maintain any current or deposit account with a bank or financial institution except for the relevant Operating Account and the deposit of money, operation
of current accounts and the conduct of electronic banking operations through the relevant Operating Account;
|
|
(b) |
hold cash in any account (other than the relevant Operating Account) over or in respect of which any set-off, combination of accounts, netting or Security
Interest exists;
|
|
(c) |
enter into any obligations under operating leases relating to assets; or
|
|
(d) |
be party to any transaction, whether on or off balance sheet, that is not expressly permitted under this Note Purchase Deed.
|
9.7 |
Disposals
|
9.8 |
Contracts and arrangements with Affiliates
|
9.9 |
Acquisitions and investments
|
|
(a) |
the incurrence of liabilities in the ordinary course of its business; and
|
|
(b) |
pursuant to any Finance Document.
|
9.10 |
Reduction of capital
|
9.11 |
Increase in capital
|
9.12 |
Family Trading Facility
|
9.13 |
Capital Expenditures
|
|
(a) |
any cash at hand of the Group accumulated over time in the ordinary course of business shall be excluded from any assessment to be made as regards the
existence or not of committed financing instruments; and
|
|
(b) |
an increase in the amount available under the Family Trading Facility shall be deemed to satisfy the requirement of having committed financing instruments
in place.
|
9.14 |
Distributions and other payments
|
|
(a) |
declare or pay (including by way of set-off, combination of accounts or otherwise) any dividend, charge, fee or other distribution (or interest on any
unpaid dividend, charge, fee or other distribution) (whether in cash or in kind (other than in the form of common or preferred shares of the Issuer, provided any such common or preferred shares do not provide for the payment of cash
dividends prior to Final Maturity Date)) on or in respect of its share capital (or any class of its share capital) or any warrants for the time being in issue, provided however that the Issuer shall be entitled to declare, but not to
pay to its shareholders, a cash dividend for the Financial Year ending on 31 December 2019;
|
|
(b) |
repay or distribute any dividend or share premium reserve;
|
|
(c) |
pay any management, advisory or other fee to or to the order of any its shareholders, unless such fee has been disclosed in writing to the Agent prior to
the date of this Note Purchase Deed;
|
|
(d) |
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so; or
|
|
(e) |
make any payment (including by way of set-off, combination of accounts or otherwise) by way of interest, or repayment, redemption, purchase or other
payment, in respect of any shareholder loan, loan stock or similar instrument, other than in accordance with paragraph 9.3(a) (
Financial
Indebtedness
),
|
(1) |
[(a) [●] (the
New Note Purchaser
);;
|
(2) |
[•], in its capacity as the Registrar (the
Registrar
)
under the Note Purchase Deed (the
Note Purchase Deed
) dated 21 March 2019 and entered into between,
inter alios
, Top Ships Inc. as the Issuer and the Registrar.
|
|
(f) |
The Note Transferor and the Note Transferee agree to the Note Transferor transferring to the Note Transferee by novation all or part of the Note
Transferor’s Commitment, rights and obligations referred to in the Schedule hereto in accordance with 19.1 (
Voluntary Transfers by Note
Purchasers
) of the Note Purchase Deed.
|
|
(g) |
The
proposed date for the novation to take effect is: [●]
.
|
EXECUTED AS A DEED
by
|
)
|
|
)
|
||
[appropriate execution clause for the
|
)
|
|
Note Transferor] in the presence of:
|
EXECUTED AS A DEED
by
|
)
|
|
)
|
||
[appropriate execution clause for [the
|
)
|
|
/ each] New Finance Party] in the
presence of:
|
)
|
SIGNED
as a Deed on behalf of
|
)
|
|
[●]
|
)
|
|
as the Registrar acting by its
|
)
|
|
Authorized signatory under its authority
|
)
|
|
in the presence of
|
)
|
(a) |
[c
an
cel such Note Certificate representing such Note; and
|
(b) |
issue a new Note Certificate to the Note Transferee in an amount equal to the Principal Balance of such cancelled Note Certificate and] record such transfer
[and issue] on the Register (on the date of execution by you of the Deed of Accession)]
|
(a) |
record
the new and reduced Principal Balance on the Register; [and
|
(b) |
issue a new Note Certificate to the Note Transferee in an amount equal to the
Transferred
Amount
and record such issue on the Register (on the date of execution by you of the Deed of Accession); ]and
|
(c) |
record
such
transfer of part of the Principal Balance equal to the Transferred Amount on the Register (on the date of execution by you of the Deed of Accession).
|
1 |
We refer to the Note Purchase Deed. This is a Compliance Certificate. Terms defined in the Note Purchase Deed have the same meaning when used in this
Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2 |
We confirm that:
|
|
(a) |
Leverage
: the ratio of Total Net Debt to Fleet Market
Value in respect of the Group was [•]:1.00, calculated as shown in [Appendix A] versus a maximum required ratio of 0.75:1.00
[attach
relevant evidence]
; and
|
|
(b) |
Minimum liquidity
: the Group’s Cash and Cash Equivalents were
[•]
calculated as shown in [Appendix B] versus a minimum required aggregate amount of (i) $750,000 per Fleet Vessel and (ii) $500,000 per Chartered Vessel
[attach relevant evidence]
.
|
3 |
[We confirm that no Default is continuing.] [If this statement cannot be made, the certificate should identify any Default that is continuing and the steps,
if any, being taken to remedy it.]
|
1 |
Note Certificate
|
2 |
Interpretation
|
3 |
Certificate of Entitlement of Registered Note Purchaser
|
4 |
Security and Guarantee
|
5 |
Non-petition
|
6 |
Transfer of interests in the Certified Note
|
7 |
Taxes
|
8 |
Governing Law
|
Executed by:
|
TOP SHIPS INC.
|
acting by:
|
|
By:
|
|
Name:
|
|
Director:
|
|
Authenticated by:
|
AMSTERDAM TRADE BANK N.V.
|
acting by:
|
|
By:
|
|
Name:
|
|
1 |
Definitions
|
|
(a) |
any law or regulation in force as at the date hereof implementing the Basel II Accord, (including the relevant provisions of CRD IV and CRR) to the extent
only that such law or regulation re-enacts and/or implements the requirements of the Basel II Accord but excluding any provision of such law or regulation implementing the Basel III Accord; and
|
|
(b) |
any Basel II Approach adopted by a Finance Party or any of its Affiliates.
|
|
(a) |
the interest (excluding the Margin) which a Note Purchaser should have received for the period from the date of receipt of all or any part the Note to the
last day of the current Interest Period in respect of that, had the relevant principal amount received been paid on the last day of that Interest Period;
|
|
(b) |
the amount which that Note Purchaser would be able to obtain by placing an amount equal to the relevant principal amount received by it on deposit with a
leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of that Interest Period.
|
|
(a) |
any member of the Group or any of its advisers; or
|
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
|
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of clause 0 (
Confidential Information
); or
|
|
(B) |
is identified in writing or orally if given orally at the time of delivery as non-confidential by any member of the Group 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 the Group 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 Notes (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
|
|
(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
preventing that, or any other Party:
|
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
|
(a) |
in relation to the Issuer, all money at any time payable to the Issuer for or in relation to its operation or otherwise including dividends or damages for
breach and payments for termination or variation of any contractual commitment or otherwise; and
|
|
(b) |
in relation to the Collateral Ship and a person, all money at any time payable to that person for or in relation to the use or operation of the Collateral
Ship, including freight, hire and passage moneys, money payable to that person for the provision of services by or from the Collateral Ship or under any charter commitment, requisition for hire compensation, remuneration for salvage
and towage services, demurrage and detention moneys and damages for breach and payments for termination or variation of any charter commitment.
|
|
(a) |
enforcement, clean-up, removal or other governmental or regulatory action or orders or claims instituted or made pursuant to any Environmental Laws or
resulting from a Spill; or
|
|
(b) |
any claim made by any other person relating to a Spill.
|
|
(a) |
any Fleet Vessel or its owner, operator or manager is liable for Environmental Claims arising from the Spill (other than Environmental Claims arising and
fully satisfied before the date of this Note Purchase Deed); and/or
|
|
(b) |
any Fleet Vessel is arrested or attached in connection with any such Environmental Claim.
|
|
(a) |
Non payment
: an Obligor does not pay on the due date
any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:
|
|
(i) |
its failure to pay is caused by administrative or technical error or by a Disruption Event; and
|
|
(ii) |
payment is made within three (3) Business Days of its due date.
|
|
(b) |
Financial covenants
: the Obligors do not comply with
paragraph 2 of Schedule 4 (
Covenants of the Obligors
).
|
|
(c) |
Other obligations
:
|
|
(i) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in paragraphs (a) and (b) above, and the other
provisions of this definition “
Event of Default
”).
|
|
(ii) |
No Event of Default under paragraph (i) above will occur if the Agent considers that the failure to comply is capable of remedy and the failure is remedied
within five Business Days of the earlier of (A) the Agent giving notice to the Issuer and (B) the Issuer or any other Obligor becoming aware of the failure to comply.
|
|
(d) |
Misrepresentation
: any representation or statement
made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made.
|
|
(e) |
Cross default
:
|
|
(i) |
Any Financial Indebtedness of any Obligor (other than the Charterer) is not paid when due nor within any originally applicable grace period.
|
|
(ii) |
Any Financial Indebtedness of any Obligor (other than the Charterer) 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).
|
|
(iii) |
Any commitment for any Financial Indebtedness of any Obligor (other than the Charterer) is cancelled or suspended by a creditor of that Obligor as a result
of an event of default (however described).
|
|
(iv) |
The counterparty to a Treasury Transaction entered into by the Issuer becomes entitled to terminate that Treasury Transaction early by reason of an event of
default (however described).
|
|
(v) |
An Event of Default will only occur under this paragraph (e) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within this paragraph (e) is more than $5,000,000 (or its equivalent in any other currency).
|
|
(vi) |
Any creditor of any Obligor (other than the Charterer) becomes entitled to declare any Financial Indebtedness of that Obligor due and payable prior to its
specified maturity as a result of an event of default (however described).
|
|
(f) |
Insolvency
:
|
|
(i) |
An Obligor:
|
|
(A) |
is unable or admits inability to pay its debts as they fall due;
|
|
(B) |
is deemed to, or is declared to, be unable to pay its debts under applicable law;
|
|
(C) |
suspends without the consent of the affected creditor(s) or threatens to suspend making payments on any of its debts; or
|
|
(D) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its
capacity as such) with a view to rescheduling all or substantially all of its Financial Indebtedness.
|
|
(ii) |
The value of the assets of any Obligor (other than the Charterer) is less than its Total Debt.
|
|
(iii) |
A moratorium is declared in respect of any indebtedness of any Obligor exceeding $1,500,000 (or its equivalent in any other currency) in aggregate.
|
|
(g) |
Insolvency proceedings
:
|
|
(i) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
|
(A) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of any Obligor;
|
|
(B) |
a composition, compromise, assignment or arrangement with any creditor of any Obligor;
|
|
(C) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Obligor or
any of its assets (including the directors of any Obligor requesting a person to appoint any such officer in relation to it or any of its assets); or
|
|
(D) |
enforcement of any Security Interest over any assets of any Obligor (having in the case of the Issuer a value in excess of $1,500,000 (or its equivalent in
any other currency) in aggregate),
|
|
(ii) |
Paragraph (i) above shall not apply to any winding-up petition (or analogous procedure or step) which is frivolous or vexatious and is discharged, stayed or
dismissed within seven days of commencement or, if earlier, the date on which it is advertised.
|
|
(h) |
Creditors’ process
:
|
|
(i) |
Any expropriation, attachment, sequestration, distress, execution or any other analogous process or enforcement action (including enforcement by a landlord)
affects any asset or assets of any Obligor (other than the Charterer) (having in the case of the Issuer a value in excess of $1,500,000 (or its equivalent in any other currency) in aggregate) and is not discharged within seven days.
|
|
(ii) |
Any judgment or order is made against any Obligor (other than the Charterer) or any other Group Member and is not stayed or complied with within fifteen
days.
|
|
(i) |
Unlawfulness and invalidity
:
|
|
(i) |
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or any Transaction Security ceases to be effective.
|
|
(ii) |
Any obligation or obligations of any Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or
enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Note Purchasers under the Finance Documents.
|
|
(iii) |
Any Finance Document or any Transaction Security ceases to be in full force and effect or ceases to be legal, valid, binding, enforceable or effective or is
alleged by a party to it (other than a Finance Party) to be ineffective for any reason.
|
|
(iv) |
Any Security Document does not create legal, valid, binding and enforceable security over the assets charged under that Security Document or the ranking or
priority of such security is adversely affected.
|
|
(j) |
Cessation of business
: any Obligor suspends or
ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business unless, in the case of the manager of the Collateral Ship from time to time, such manager is substituted by another manager
approved in accordance with paragraph 4.9 (
Manager
) of Schedule 4 (
Covenants of the Obligors
).
|
|
(k) |
Ownership of the Guarantor
: the Guarantor is not or
ceases to be a wholly-owed direct Subsidiary of the Issuer.
|
|
(l) |
Expropriation
: the authority or ability of any
Obligor or any other Group Member to conduct its business is limited or wholly or substantially curtailed by any seizure, expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental,
regulatory or other authority or other person in relation to any Obligor or any other Group Member or any assets of any Obligor or any other Group Member unless, in the case of the manager of the Collateral Ship from time to time,
such manager is substituted by another manager approved in accordance with paragraph 4.9 (
Manager
) of Schedule 4 (
Covenants of the Obligors
).
|
|
(m) |
Repudiation and rescission of the Finance Documents
:
an Obligor rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Finance Document or any Transaction Security.
|
|
(n) |
Litigation
: Either:
|
|
(i) |
any litigation, alternative dispute resolution, arbitration or administrative, governmental, regulatory or other investigations, proceedings or disputes are
commenced or threatened; or
|
|
(ii) |
any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body is made,
|
|
(o) |
Material Adverse Effect
: any event or circumstance
(including any change of law) occurs which the Note Purchasers reasonably believe has, or is reasonably likely to have, a Material Adverse Effect.
|
|
(p) |
Security enforceable
: any Security Interest (other
than a Permitted Maritime Lien) in respect of Charged Property becomes enforceable.
|
|
(q) |
Political risk
:
|
|
(i) |
Either (1) any Relevant Jurisdiction of an Obligor becomes involved in hostilities or civil war or (2) there is a seizure of power in any such Relevant
Jurisdiction by unconstitutional means and (in either such case) in the opinion of the Agent such event or circumstance, has or is reasonably likely to have, a Material Adverse Effect.
|
|
(ii) |
No Event of Default under paragraph (i) above will occur if:
|
|
(A) |
in the opinion of the Agent it is practicable for action to be taken by the Issuer to prevent the relevant event or circumstance having a Material Adverse
Effect; and
|
|
(B) |
the Issuer takes such action to the Agent’s satisfaction within 14 days of notice from the Agent (specifying the relevant action to be taken) to do so.
|
|
(r) |
Post-Delivery Event
: a Post-Delivery Event occurs.
|
|
(s) |
Sanctions
:
|
|
(i) |
Any of the Obligors or any Affiliate of any of them or any of their respective directors, officers, agents, employees or other persons acting on behalf of
the foregoing, becomes a Restricted Person or becomes owned or controlled by, or acts directly or indirectly on behalf of, a Restricted Person or any of such persons becomes the owner or controller of a Restricted Person; or
|
|
(ii) |
Any proceeds of the Loan are made available, directly or indirectly, to or for the benefit of a Restricted Person or otherwise is, directly or indirectly,
applied in a manner or for a purpose prohibited by applicable Sanctions; or
|
|
(iii) |
Any Obligor or any of their respective Affiliates or any of their respective directors, officers, agents, employees or other persons acting on behalf of the
foregoing, is not in compliance with all applicable Sanctions.
|
|
(t) |
Insurance
:
|
|
(i) |
The Insurances of the Collateral Ship are not placed and kept in force in the manner required by paragraph 6 (Insurance) of Schedule 4 (
Covenants of the Obligors
).
|
|
(ii) |
Any insurer either: (A) cancels any such Insurances; or (B) (ii) disclaims liability under them or asserts that its liability under them is or should be
reduced by reason of any mis-statement or failure or default by any person.
|
|
(u) |
De-listing or suspension of trading
: the shares of
the Issuer are de-listed from, or suspended from trading (whether permanently or temporarily for a period of at least five (5) consecutive days) on the NASDAQ Stock Exchange.
|
|
(v) |
Total Loss or sale
: the Collateral Ship is sold or
becomes a Total Loss.
|
|
(a) |
in respect of a Note Purchaser, the office or offices notified by that Note Purchaser to the Agent in writing on or before the date it becomes a Note
Purchaser (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Note Purchase Deed; or
|
|
(b) |
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
|
(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) |
moneys borrowed and debit balances at banks or other financial institutions;
|
|
(b) |
any amount raised under any acceptance under any acceptance credit or bill discounting 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 respect of any lease or hire purchase contract which would, in accordance with GAAP be treated as a finance or capital lease;
|
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition
under GAAP);
|
|
(f) |
any Treasury Transaction (and, when calculating the value of that Treasury 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 Treasury Transaction, that amount) shall be taken into account);
|
|
(g) |
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;
|
|
(h) |
in respect of the Issuer only, any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Final
Maturity Date or are otherwise classified as borrowings under GAAP);
|
|
(i) |
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise
finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply;
|
|
(j) |
any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) of a type not
referred to in any
|
|
|
other
paragraph of this definition having the commercial effect of a
borrowing or otherwise classified as borrowings under GAAP; and
|
|
(k) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.
|
|
(a) |
each Finance Party, each Receiver, any Delegate and any attorney, agent or other person appointed by them under the Finance Documents;
|
|
(b) |
each Affiliate of those persons; and
|
|
(c) |
any officers, directors, employees, advisers, representatives or agents of any of the above persons.
|
|
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
|
(d) |
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory
jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
|
|
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting
|
|
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding up or liquidation; or
|
|
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
|
(f) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
|
(g) |
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in
paragraph (d) above);
|
|
(h) |
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other enforcement
action or legal process levied, enforced, taken or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each
case within 30 days thereafter;
|
|
(i) |
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events
specified in paragraphs (a) to (h) above; or
|
|
(j) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
|
(a) |
all policies and contracts of insurance; and
|
|
(b) |
all entries in a protection and indemnity or war risks or other mutual insurance association,
|
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available)
which is less than the relevant Interest Period; and |
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant Interest Period,
|
|
(a) |
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to
insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
|
(b) |
the time barring of claims under the Limitation Act 1980 and the Foreign Limitation Periods Act 1984, the possibility that an undertaking to assume
liability for, or indemnify a person against, non-payment of UK stamp duty may be void and defences of set-off or counterclaim; and
|
|
(c) |
similar principles, rights and defences under the laws of any Relevant Jurisdiction.
|
|
(a) |
the applicable Screen Rate as of 11:00 a.m. on the relevant Quotation Day for a period equal in length to the Interest Period of that Note; or
|
|
(b) |
as otherwise determined pursuant to clause 8.1(f)(i) (
Unavailability
of Screen Rate
),
|
|
(a) |
the business or financial condition of an Obligor; or
|
|
(b) |
the ability of an Obligor to perform its obligations under the Finance Documents; or
|
|
(c) |
the legality, validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purporting to be granted pursuant to any
of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
|
(a) |
the Share Security;
|
|
(b) |
the Account Security in relation to each Operating Account;
|
|
(c) |
the Mortgage;
|
|
(d) |
the General Assignment;
|
|
(e) |
the Charter Assignment; and
|
|
(f) |
any Manager’s Undertaking if required under paragraph 4.9 (
Manager
)
of Schedule 4 (
Covenants of the Obligors
).
|
|
(a) |
any ship repairer’s or outfitter’s possessory lien in respect of the Collateral Ship for an amount not exceeding the Major Casualty Amount;
|
|
(b) |
any lien on the Collateral Ship for master’s, officer’s or crew’s wages outstanding in the ordinary course of its trading;
|
|
(c) |
any lien on the Collateral Ship for salvage or general average; and
|
|
(d) |
any other lien on the Collateral Ship arising by operation of law for claims incurred in the ordinary course of the operation, repair or maintenance of the
Collateral Ship and which
|
|
|
are
outstanding for not longer than thirty (30) days or for
an aggregate amount not exceeding the Major Casualty Amount.
|
|
(a) |
granted by the Finance Documents; or
|
|
(b) |
approved by the Note Purchasers; or
|
|
(c) |
a Permitted Maritime Lien; or
|
|
(d) |
granted by the Post-Delivery Facility Agreement and any Post-Delivery Finance Documents.
|
|
(a) |
its Original Jurisdiction;
|
|
(b) |
any jurisdiction where any Charged Property owned by it is situated;
|
|
(c) |
any jurisdiction where it conducts its business; and
|
|
(d) |
any jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
|
(a) |
is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person) or otherwise a target of Sanctions;
|
|
(b) |
is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of or, such country or territory which is, or
whose government is, subject to Sanctions broadly prohibiting dealings with such government, country or territory;
|
|
(c) |
is directly or indirectly owned by or controlled by a person referred to in (a) and/or (b) above; or
|
|
(d) |
owns or controls a person referred to in (a) and/or (b) above.
|
|
(a) |
the United States of America;
|
|
(b) |
the United Nations Security Council;
|
|
(c) |
the United Kingdom;
|
|
(d) |
the European Union or any of its member states;
|
|
(e) |
any country to which any Obligor or any Affiliate of any of them is bound; or
|
|
(f) |
the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US
Department of Treasury (
OFAC
), the United States Department of State and Her Majesty’s Treasury (
HMT
) (each a
Sanctions Authority
and together
Sanctions Authorities
).
|
|
(a) |
the Original Security Documents; and
|
|
(b) |
any other document as may be executed to guarantee and/or secure any amounts owing to the Finance Parties under this Note Purchase Deed or any other Finance
Document.
|
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Finance Parties and all proceeds of that Transaction
Security;
|
|
(b) |
all obligations expressed to be undertaken by any Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the
Finance Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Finance Parties; and
|
|
(c) |
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 Finance Parties.
|
|
(a) |
directly or indirectly controlled by such person; or
|
|
(b) |
of whose dividends or distributions on ordinary voting share capital such person is beneficially entitled to receive more than 50 per cent,
|
|
(a) |
actual, constructive, compromised or arranged total loss; or
|
|
(b) |
requisition for title, confiscation or other compulsory acquisition by a government entity; or
|
|
(c) |
hijacking, theft, condemnation, capture, seizure, arrest or detention for more than 90 days or in the case of piracy for more than 180 days.
|
|
(a) |
in the case of an actual total loss, the date it happened or, if such date is not known, the date on which the Collateral Ship was last reported;
|
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss, the earliest of:
|
|
(i) |
the date notice of abandonment of the Collateral Ship is given to its insurers; or
|
|
(ii) |
if the insurers do not admit such a claim, the date later determined by a competent court of law to have been the date on which the total loss happened; or
|
|
(iii) |
the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the Collateral Ship’s insurers;
|
|
(c) |
in the case of a requisition for title, confiscation or compulsory acquisition, the date it happened; and
|
|
(d) |
in the case of hijacking, theft, condemnation, capture, seizure, arrest or detention, the date 90 days after the date upon which it happened or in the case
of piracy, the date falling 180 days after the date it happened.
|
|
(a) |
each of the Finance Documents; and
|
|
(b) |
each Charter Document.
|
|
(a) |
the Issuer if it is resident for tax purposes in the US; or
|
|
(b) |
an Obligor 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, 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.
|
2 |
Construction
|
|
(a) |
Unless a contrary indication appears, a reference in any of the Finance Documents to:
|
|
(i) |
Sections, clauses and Schedules are to be construed as references to the Sections and clauses of, and the Schedules to, the relevant Finance Document and
references to a Finance Document include its Schedules;
|
|
(ii) |
a
Finance Document
or any other agreement or
instrument is a reference to that Finance Document or other agreement or instrument as it may from time to time be amended, restated, novated or replaced, however fundamentally;
|
|
(iii) |
words importing the plural shall include the singular and vice versa;
|
|
(iv) |
a time of day is to London time;
|
|
(v) |
any person includes its successors in title, permitted assignees or transferees;
|
|
(vi) |
a document in agreed form means:
|
|
(A) |
where a Finance Document has already been executed by all of the relevant parties, such Finance Document in its executed form;
|
|
(B) |
prior to the execution of a Finance Document, the form of such Finance Document separately agreed in writing between the Agent and the Issuer as the form in
which that Finance Document is to be executed or another form approved at the request of the Issuer or, if not so agreed or approved, is in the form specified by the Agent;
|
|
(vii) |
assets
includes present and future properties,
revenues and rights of every description;
|
|
(viii) |
charter commitment
means, in relation to a vessel,
any charter or contract for the use, employment or operation of that vessel or the carriage of people and/or cargo or the provision of services by or from it and includes any agreement for pooling or sharing income derived from any
such charter or contract;
|
|
(ix) |
control
of an entity means:
|
|
(A) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
|
(i) |
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 that entity; or
|
|
(ii) |
appoint or remove all, or the majority, of the directors or other equivalent officers of that entity; or
|
|
(iii) |
give directions with respect to the operating and financial policies of that entity with which the directors or other equivalent officers of that entity are
obliged to comply; or
|
|
(B) |
the holding beneficially of more than 50 per cent of the issued share capital of that entity (excluding any part of that issued share capital that carries
no right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over share capital shall be disregarded in determining the beneficial ownership of such
share capital);
|
|
(x) |
the term
disposal
or
dispose
means a sale, transfer or other disposal (including by way of lease or loan but not including by way of loan of money) by a person of all or part of
its assets, whether by one transaction or a series of transactions and whether at the same time or over a period of time, but not the creation of a Security Interest;
|
|
(xi) |
the
equivalent
of an amount specified in a
particular currency (the
specified currency amount
) shall be construed as a reference to the amount of the other relevant currency
which can be purchased with the specified currency amount in the London foreign exchange market at or about 11 a.m. on the date the calculation falls to be made for spot delivery, as conclusively determined by the Agent (with the
relevant exchange rate of any such purchase being the
Agent’s spot rate of exchange
);
|
|
(xii) |
a
government entity
means any government, state or
agency of a state;
|
|
(xiii) |
a
guarantee
means (other than in clause 14 (
Guarantee and indemnity
)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation,
direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in
order to maintain or assist the ability of such person to meet its indebtedness;
|
|
(xiv) |
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;
|
|
(xv) |
an
obligation
means any duty, obligation or
liability of any kind;
|
|
(xvi) |
something being in the
ordinary course of business
of
a person means something that is in the ordinary course of that person’s current day-to-day operational business (and not merely anything which that person is entitled to do under its Constitutional Documents);
|
|
(xvii) |
pay
or
repay
in the Payment Mechanics includes by way of set-off, combination of accounts or otherwise;
|
|
(xviii) |
a
person
includes any individual, firm, company,
corporation, government entity or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
|
|
(xix) |
a
regulation
includes any regulation, rule,
official directive, request or guideline (whether or not having the force of law but if not having the force of law, one with which a person habitually complies) of any governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or organisation and, in relation to any Note Purchaser, includes (without limitation) any Basel II Regulation or Basel III Regulation or any law or regulation which
implements Reformed Basel III, in each case which is applicable to that Note Purchaser;
|
|
(xx) |
right
means any right, privilege, power or remedy,
any proprietary interest in any asset and any other interest or remedy of any kind, whether actual or contingent, present or future, arising under contract or law, or in equity;
|
|
(xxi) |
trustee
,
fiduciary
and
fiduciary duty
has in each case the meaning given to
such term under applicable law;
|
|
(xxii) |
(i) the
liquidation
,
winding up
,
dissolution
, or
administration
of person or (ii) a
receiver
or
administrative receiver
or
administrator
in the context of insolvency proceedings or security enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous proceedings or any equivalent and analogous person or appointee
(respectively) under the law of the jurisdiction in which such person is established or incorporated or any jurisdiction in which such person carries on business including (in respect of proceedings) the seeking or occurrences of
liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors; and
|
|
(xxiii) |
a provision of law is a reference to that provision as amended or re-enacted.
|
|
(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 Note Purchase Deed.
|
|
(c) |
Where in this Note Purchase Deed a provision includes a monetary reference level in one currency, unless a contrary indication appears, such reference level
is intended to apply equally to its equivalent in other currencies as of the relevant time for the purposes of applying such reference level to any other currencies.
|
|
(d) |
Section, clause and Schedule headings are for ease of reference only.
|
|
(e) |
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 Note Purchase Deed.
|
|
(f) |
A Default is continuing if it has not been remedied or waived.
|
3 |
Currency symboils and definitions
$
,
USD
and
dollars
denote the lawful currency of the United States
of America.
|
|
(a) |
Unless expressly provided to the contrary in a Finance Document for the benefit of a Finance Party or another Indemnified Person, a person who is not a
party to a Finance Document has no right under the Contracts (Rights of Third Parties) Act 1999 (the
Third Parties Act
) to enforce
or enjoy the benefit of any term of the relevant Finance Document.
|
|
(b) |
Any Finance Document may be rescinded or varied by the parties to it without the consent of any person who is not a party to it (unless otherwise provided
by this Note Purchase Deed).
|
|
(c) |
An Indemnified Person who is not a party to a Finance Document may only enforce its rights under that Finance Document through a Finance Party and if and to
the extent and in such manner as the Finance Party may determine.
|
|
(a) |
Interest Periods: If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
|
|
(b) |
In the event that any date for payment (including, without limitation, an Interest Payment Date) or calculation date (including, without limitation, a
Determination Date) would otherwise be on a day which is not a Business Day, such date will instead be on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
|
Owner:
|
PCH77 SHIPPING COMPANY LIMITED
|
Builder:
|
Hyundai Mipo Dockyard Co., Ltd.
|
Hull Number:
|
8218
|
Scheduled Delivery Date:
|
31 January 2019
|
IMO Number:
|
9843780
|
Owner:
|
PCH Dreaming Inc.
|
Builder:
|
Hyundai Mipo Dockyard Co., Ltd.
|
Hull Number:
|
8242
|
Scheduled Delivery Date:
|
13 March 2019
|
IMO Number:
|
9798349
|
Owner:
|
South California Inc.
|
Builder:
|
Hyundai Samho Heavy Industries Co., Ltd.
|
Hull Number:
|
S874
|
Scheduled Delivery Date:
|
5 April 2019
|
IMO Number:
|
9794056
|
Owner:
|
Malibu Warrior Inc.
|
Builder:
|
Hyundai Samho Heavy Industries Co., Ltd.
|
Hull Number:
|
S875
|
Scheduled Delivery Date:
|
2 May 2019
|
IMO Number:
|
9794068
|
Owner:
|
Astarte International Inc.
|
Name of Ship:
|
Eco Palm Desert
|
Flag State:
|
The Republic of the Marshall Islands
|
Charter description:
|
“SHELLTIME 4” time charter dated 28 September 2017 made between Central Tankers Chartering
Inc. (
CTC
) as disponent owner and the Charterer, as time charterer as novated by CTC in favour of the Owner by means of a novation
agreement dated 1 December 2018 made between the Owner, CTC and the Charterer
|
Charterer:
|
Shell Tankers Singapore Private Limited
|
Classification:
|
+100A1, Double Hull Oil and Chemical Tanker, Ship Type 2 and Ship Type 3, ESP, CSR, +LMC,
UMS, *IWS, LI, SRM4, ECO (IHM, P), NAV1, IGS, ShipRight (CM, ACS(B)) with descriptive notes COW(LR), ETA, ShipRight (BWMP(S)), SERS, SCM, VECS)
|
Classification Society:
|
Lloyds Register of Shipping
|
Major Casualty Amount:
|
$500,000
|
1 |
Pre-Enforcement Payment Mechanics
|
|
(a) |
Payments to the Agent
|
|
(i) |
On each date on which an Obligor or a Note Purchaser is required to make a payment under a Finance Document, that Obligor or Note Purchaser shall make the
same available to the 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 Agent as being customary at the time for settlement of transactions in
the relevant currency in the place of payment.
|
|
(ii) |
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 Agent) and with such bank as the Agent, in each case, specifies.
|
|
(b) |
Distributions by the Agent
|
|
(c) |
Distributions to an Obligor
|
|
(d) |
Clawback and pre-funding
|
|
(i) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the 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.
|
|
(ii) |
Unless paragraph (iii) below applies, if the Agent pays an amount to another Party and it proves to be the case that the 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 Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to
the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
|
(iii) |
If the Agent has notified the Note Purchasers that it is willing to make available amounts for the account of the Issuer before receiving funds from the
Note Purchasers then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Note Purchaser in respect of a sum which it paid to the Issuer:
|
|
(A) |
the Agent shall notify the Issuer of that Note Purchaser’s identity and the Issuer shall on demand refund it to the Agent; and
|
|
(B) |
the Note Purchaser by whom those funds should have been made available or, if that Note Purchaser fails to do so, the Issuer, shall on demand pay to the
Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Note Purchaser.
|
|
(e) |
Partial Payments
|
|
(i) |
If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts
then due and payable by an Obligor under those Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
|
(A) |
first, in or towards payment pro rata of any unpaid amount owing to the Agent or the Security Agent for their own account under those Finance Documents;
|
|
(B) |
secondly, in or towards payment to the Note Purchasers pro rata of all other amounts due to them but unpaid under the Finance Documents; and
|
|
(C) |
thirdly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
|
(ii) |
The Agent shall, if so directed by all the Note Purchasers and with prior written notice to the Obligors, vary the order set out in paragraphs (B) to (C) of
paragraph (i) above.
|
|
(iii) |
Paragraphs (i) and (ii) above will override any appropriation made by an Obligor.
|
|
(f) |
No set-off by Obligors
|
|
(g) |
Business Days
|
|
(i) |
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).
|
|
(ii) |
During any extension of the due date for payment of any principal under this Agreement interest is payable on the principal at the rate payable on the
original due date.
|
|
(h) |
Currency of account
|
|
(i) |
Subject to paragraphs (i) and (ii) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
|
(ii) |
A repayment of all or part of a Note and each payment of interest shall be made in dollars on its due date.
|
|
(iii) |
Each payment in respect of the amount of any costs, expenses or Taxes or other losses shall be made in dollars and, if they were incurred in a currency
other than dollars, the amount payable under the Finance Documents shall be the equivalent in dollars of the relevant amount in such other currency on the date on which it was incurred.
|
|
(iv) |
All moneys received or held by the Security Agent or by a Receiver under a Security Document in a currency other than dollars may be sold for dollars and
the Obligor which executed that Security Document shall indemnify the Security Agent against the full cost in relation to the sale. Neither the Security Agent nor such Receiver will have any liability to that Obligor in respect of any
loss resulting from any fluctuation in exchange rates after the sale.
|
|
(i) |
Change of currency
|
|
(i) |
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:
|
|
(A) |
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 Agent (after consultation with the Issuer); and
|
|
(B) |
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 Agent (acting reasonably).
|
|
(ii) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Issuer)
specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Interbank Market and otherwise to reflect the change in currency.
|
|
(j) |
Disruption to payment systems etc.
|
|
(i) |
the Agent may, and shall if requested to do so by the Issuer, consult with the Issuer with a view to agreeing with the Issuer such changes to the operation
or administration of the Notes as the Agent may deem necessary in the circumstances;
|
|
(ii) |
the Agent shall not be obliged to consult with the Issuer in relation to any changes mentioned in paragraph (i) above if, in its reasonable opinion, it is
not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
|
(iii) |
the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (i) above but shall not be obliged to do so if, in its
opinion, it is not practicable to do so in the circumstances;
|
|
(iv) |
any such changes agreed upon by the Agent and the Issuer shall (whether or not it is finally determined that a Disruption Event has occurred) be binding
upon the
|
|
(v) |
the 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 Agent) arising as a result of its taking, or failing to take, any actions pursuant to or
in connection with this paragraph 1(j); and
|
|
(vi) |
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (iv) above.
|
|
(a) |
in discharging any sums owing to the Security Agent, any Receiver or any Delegate;
|
|
(b) |
in discharging all costs and expenses incurred by any Finance Party in connection with any realisation or enforcement of the Transaction Security taken in
accordance with the terms of this Note Purchase Deed;
|
|
(c) |
in payment or distribution to the Agent on its own behalf and on behalf of the other Finance Parties;
|
|
(d) |
if none of the 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 Obligor; and
|
|
(e) |
the balance, if any, in payment or distribution to the relevant Obligor.
|
|
1. |
Cargill International SA
, a company
incorporated under the laws of Switzerland and having its registered office at 14 chemin de-Normandie, 1206 Geneva, Switzerland (the “
Buyer
”);
|
|
2. |
PCH Dreaming Inc.
, a corporation duly
incorporated and validly existing under the laws of the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands, MH 96960
(the “
Seller
”); and
|
|
3. |
Top Ships Inc.
, a company duly
incorporated and validly existing under the laws of the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands, MH 96960
(the “
Guarantor
”),
|
|
(A) |
By a shipbuilding contract dated 9 January 2018 between the Seller and Hyundai Mipo Dockyard Co., Ltd. (“
Builder
”),
the Builder agreed to construct, or procure the construction of, the product / chemical tanker named or, as the case may be, to be named, “ECO MARINA DEL REY”, constructed, or, as the case may be, under construction, by the Builder
with Builder’s Hull No. 8242 and with IMO number 9798349 (“
Vessel
”) and the Seller agreed to buy the Vessel (as amended,
supplemented or otherwise modified from time to time, including by an agreement dated 28 March 2018 and an Addendum No.1 dated 14 May 2018, the “
Shipbuilding Contract
”).
|
|
(B) |
By a memorandum of agreement dated 29 June 2018 (“
MOA
”) and entered into among the Buyer, the Seller and the Guarantor in respect of the Vessel, the Buyer agreed to buy, and the Seller agreed to sell, the Vessel.
|
|
(C) |
The Parties now wish to make various amendments to the MOA, such amendments in the terms set out in this Addendum.
|
1. |
Unless otherwise specified, capitalised terms and the interpretation of other terms used in this Addendum (including in its recitals) shall have the
meanings and interpretations specified in the MOA and such terms shall apply, mutatis mutandis, to this Addendum, as if set out in full herein.
|
2. |
As and with effect from the date of this Addendum:
|
|
2.1 |
The following new definitions shall be added to the ‘Definitions’ section of the MOA:
|
|
2.1.1 |
“‘
Alpha
Bank
’ means Alpha Bank A.E., with its registered address at 40 Stadiou Street, Athens, Greece.”;
|
|
2.1.2 |
“‘
CISA
Payment Undertaking
’ means an undertaking in the form and substance of the undertaking at Appendix K to be provided by
the Buyer to Alpha Bank to pay to Alpha Bank an amount equal to the Net Sales Proceeds upon receipt by the Buyer of a fully executed copy of the Notice of Re-Assignment and the Vessel having been delivered to, and accepted by, the
Delivery Entity under this Agreement or at such other time as provided for in the undertaking.”;
|
|
2.1.3 |
“‘
Deed
of Assignment
’ means the deed of assignment entered into between the Seller and Alpha Bank dated 12 July 2018 pursuant
to which the Seller agreed to, inter alia, assign its rights under the Shipbuilding Contract to Alpha Bank.”; and
|
|
2.1.4 |
“‘
Notice
of Re-Assignment
’ means a notice of re-assignment entered into, or, as the case may be, to be entered into by Alpha Bank
as regards the re-assignment to the Seller by Alpha Bank of, inter alia, the rights assigned to Alpha Bank under the Deed of Assignment, in a form and on terms acceptable to Alpha Bank and the Delivery Entity.”
|
|
2.2 |
The following definitions in the ‘Definitions’ section of the MOA shall be
deleted in their entirety:
|
|
2.2.1 |
“‘
Seller’s
Account
’ means the following account at the Seller’s Bank: NL20 ABNA 0627 7819 69 (or such other account as the Seller
may nominate and the Buyer may approve (the Buyer’s approval always at the Buyer’s sole discretion) prior to the Time of Delivery).”
|
|
2.2.2 |
“‘
Seller’s
Bank
’ means ABN AMRO BANK, BIC/SWIFT: ABNANL2A or such other bank or financial institution as the Seller may nominate
and the Buyer may approve in writing (the Buyer’s approval always at the Buyer’s sole discretion) prior to the Time of Delivery.”;
|
|
2.3 |
The definition of “Shipbuilding Contract Payment Amount” in the ‘Definitions’ section of the MOA shall be deleted in its entirety and be replaced
with “‘
Shipbuilding Contract Payment Amount
’ means an amount equal to United States Dollars Twenty Two Million Two Hundred
and Sixty Six Thousand Five Hundred (US$22,266,500).”;
|
|
2.4 |
The definition of “Transaction Fees Amount” in the ‘Definitions’ section of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.5 |
The words “United States Dollars thirty-two million four hundred thousand only (US$32,400,000)” in Clause 1 of the MOA shall be deleted in their
entirety and replaced by “United States Dollars thirty-two million three hundred and eighty six thousand five hundred only (US$32,386,500)”;
|
|
2.6 |
Clause 2.7 of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.7 |
Clause 2.8 of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.8 |
Clause 2.9 of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.9 |
Clause 6.1.13 of the MOA shall be deleted in its entirety and be replaced by: “6.1.13 Two (2) originals of the Builder Protocol of Delivery and
Acceptance duly executed by an authorised signatory of the Builder and the Delivery Entity as the Seller’s nominee under the Shipbuilding Contract”;
|
|
2.10 |
Clause 6.1.15 (c) of the MOA shall be deleted in its entirety and be replaced by “the Protocol of Stores of Consumable Nature issued by the
Builder”;
|
|
2.11 |
Clause 6.1.23 of the MOA shall be deleted in its entirety and be replaced by “6.1.23 Any such additional documents which may be required by the
Delivery Entity to register the Vessel under the flag of the Buyer’s Nominated Flag State and/or to transfer ownership of and title to the Vessel to the Delivery Entity; and”
|
|
2.12 |
A new Clause 6.1.24 shall be added to the MOA: “6.1.24 a copy of the dated Notice of Re-Assignment duly executed by Alpha Bank, and which Notice of
Re-Assignment shall be fully effective at the time at which it is provided to the Buyer.”
|
|
2.13 |
The following words in Clause 6.4 of the MOA shall be deleted in their entirety “ten (10) Banking Days prior to the intended date of delivery of the
Vessel to the Delivery Entity under this Agreement as notified by the Seller pursuant to Clause 4.1, (failing which the Buyer may cancel this Agreement with immediate effect upon written notice to the Seller and without liability
whatsoever on the part of the Buyer)” and be replaced by “one (1) Banking Day prior to the Definite Delivery Date as notified by the Seller pursuant to
|
|
2.14 |
Clause 6.4.13 of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.15 |
Clause 6.4.14 of the MOA shall be deleted in its entirety and Clause 6.4.15 of the MOA shall be renumbered to be Clause 6.4.14 of the MOA;
|
|
2.16 |
Clause 6.7.1 of the MOA shall be deleted in its entirety and be replaced by: “
6.7.1 any additional documents required by the Buyer to enable payment of the Net Sales Proceeds to the account set out in the CISA Payment Undertaking (such payment subject always to
the provisions of Clause 2 and to the terms of the CISA Payment Undertaking); and
”;
|
|
2.17 |
Clause 6.8 of the MOA shall be deleted in its entirety and be replaced by: “
6.8 The Buyer shall notify the Seller of any such additional documents required by the Buyer, or, as the case may be, the Financier pursuant to Clause 6.7 no later than one (1) Banking
Day prior to the Definite Delivery Date (as determined by the five (5) Banking Day definite notice of the Definite Delivery Date as notified by the Seller pursuant to Clause 4.1)
”;
|
|
2.18 |
the copy of the Sub-Bareboat Charter attached at Appendix B to the MOA shall be deleted and replaced in its entirety by the document at Annex 1 to
this Addendum and all references in the MOA to the Sub-Bareboat Charter shall be read and construed accordingly;
|
|
2.19 |
the copy of the Vessel specifications attached at Appendix F to the MOA shall be deleted and replaced in their entirety by the documents at Annex 2
to this Addendum and all references in the MOA to the Specifications shall be read and construed accordingly; and
|
|
2.20 |
the document at Annex 3 to this Addendum shall be appended to the MOA in a new Appendix K.
|
3. |
This Addendum shall be an integral part of the MOA and shall be an amendment and supplement thereto and as and with effect from the date of this
Addendum, the MOA shall be read and construed subject to and in accordance with the terms of this Addendum. Save those altered and changed pursuant to this Addendum, all other terms and/or conditions of the MOA, including Clause 25 (
Guarantee
) of the MOA, shall remain unaltered and are, and shall remain, in full force and effect.
|
4. |
Each Party hereby represents and warrants to the other Parties that its execution of this Addendum has been duly authorised and this Addendum
constitutes its legal and valid obligations binding on it in accordance with the terms of this Addendum.
|
5. |
This Addendum may be executed in any number of counterparts each of which when executed shall constitute an original of this Addendum, but all the
counterparts shall together constitute the same agreement. No counterpart shall be effective until each Party has executed at least one counterpart. A signed copy received in .pdf format shall be deemed to be an original.
|
6. |
This Addendum and any non-contractual obligations arising out of, or in connection with, it shall be governed by, and construed in accordance with,
English law. Any disputes arising out of, or in connection with, this Addendum shall be settled in accordance with Clause 27 of the MOA which shall apply,
mutatis mutandis
, to this Addendum, as if set out in full herein.
|
|
|
1. |
Cargill International SA
, a company
incorporated under the laws of Switzerland and having its registered office at 14 chemin de-Normandie, 1206 Geneva, Switzerland (the “
Buyer
”);
|
|
2. |
PCH Dreaming Inc.
, a corporation
duly incorporated and validly existing under the laws of the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands, MH
96960 (the “
Seller
”); and
|
|
3. |
Top Ships Inc.
, a company duly
incorporated and validly existing under the laws of the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands, MH 96960
(the “
Guarantor
”),
|
|
(A) |
By a shipbuilding contract dated 9 January 2018 between the Seller and Hyundai Mipo Dockyard Co., Ltd. (“
Builder
”),
the Builder agreed to construct, or procure the construction of, the product / chemical tanker named or, as the case may be, to be named, “ECO MARINA DEL REY”, constructed, or, as the case may be, under construction, by the Builder
with Builder’s Hull No. 8242 and with IMO number 9798349 (“
Vessel
”) and the Seller agreed to buy the Vessel (as amended,
supplemented or otherwise modified from time to time, including by an agreement dated 28 March 2018 and an Addendum No.1 dated 14 May 2018, the “
Shipbuilding Contract
”).
|
|
(B) |
By a memorandum of agreement dated 29 June 2018 (“
MOA
”) and entered into among the Buyer, the Seller and the Guarantor in respect of the Vessel, the Buyer agreed to buy, and the Seller agreed to sell, the Vessel.
|
|
(C) |
The Parties now wish to make various amendments to the MOA, such amendments in the terms set out in this Addendum.
|
1. |
Unless otherwise specified, capitalised terms and the interpretation of other terms used in this Addendum (including in its recitals) shall have
the meanings and interpretations specified in the MOA and such terms shall apply, mutatis mutandis, to this Addendum, as if set out in full herein.
|
2. |
As and with effect from the date of this Addendum:
|
|
2.1 |
The following new definitions shall be added to the ‘Definitions’ section of the MOA:
|
|
2.1.1 |
“‘
Alpha
Bank
’ means Alpha Bank A.E., with its registered address at 40 Stadiou Street, Athens, Greece.”;
|
|
2.1.2 |
“‘
CISA
Payment Undertaking
’ means an undertaking in the form and substance of the undertaking at Appendix K to be provided by
the Buyer to Alpha Bank to pay to Alpha Bank an amount equal to the Net Sales Proceeds upon receipt by the Buyer of a fully executed copy of the Notice of Re-Assignment and the Vessel having been delivered to, and accepted by, the
Delivery Entity under this Agreement or at such other time as provided for in the undertaking.”;
|
|
2.1.3 |
“‘
Deed
of Assignment
’ means the deed of assignment entered into between the Seller and Alpha Bank dated 12 July 2018 pursuant
to which the Seller agreed to, inter alia, assign its rights under the Shipbuilding Contract to Alpha Bank.”; and
|
|
2.1.4 |
“‘
Notice
of Re-Assignment
’ means a notice of re-assignment entered into, or, as the case may be, to be entered into by Alpha
Bank as regards the re-assignment to the Seller by Alpha Bank of, inter alia, the rights assigned to Alpha Bank under the Deed of Assignment, in a form and on terms acceptable to Alpha Bank and the Delivery Entity.”
|
|
2.2 |
The following definitions in the ‘Definitions’ section of the MOA shall be
deleted in their entirety:
|
|
2.2.1 |
“‘
Seller’s
Account
’ means the following account at the Seller’s Bank: NL20 ABNA 0627 7819 69 (or such other account as the Seller
may nominate and the Buyer may approve (the Buyer’s approval always at the Buyer’s sole discretion) prior to the Time of Delivery).”
|
|
2.2.2 |
“‘
Seller’s
Bank
’ means ABN AMRO BANK, BIC/SWIFT: ABNANL2A or such other bank or financial institution as the Seller may nominate
and the Buyer may approve in writing (the Buyer’s approval always at the Buyer’s sole discretion) prior to the Time of Delivery.”;
|
|
2.3 |
The definition of “Shipbuilding Contract Payment Amount” in the ‘Definitions’ section of the MOA shall be deleted in its entirety and be replaced
with “‘
Shipbuilding Contract Payment Amount
’ means an amount equal to United States Dollars Twenty Two Million Two
Hundred and Sixty Six Thousand Five Hundred (US$22,266,500).”;
|
|
2.4 |
The definition of “Transaction Fees Amount” in the ‘Definitions’ section of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.5 |
The words “United States Dollars thirty-two million four hundred thousand only (US$32,400,000)” in Clause 1 of the MOA shall be deleted in their
entirety and replaced by “United States Dollars thirty-two million three hundred and eighty six thousand five hundred only (US$32,386,500)”;
|
|
2.6 |
Clause 2.7 of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.7 |
Clause 2.8 of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.8 |
Clause 2.9 of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.9 |
Clause 6.1.13 of the MOA shall be deleted in its entirety and be replaced by: “6.1.13 Two (2) originals of the Builder Protocol of Delivery and
Acceptance duly executed by an authorised signatory of the Builder and the Delivery Entity as the Seller’s nominee under the Shipbuilding Contract”;
|
|
2.10 |
Clause 6.1.15 (c) of the MOA shall be deleted in its entirety and be replaced by “the Protocol of Stores of Consumable Nature issued by the
Builder”;
|
|
2.11 |
Clause 6.1.23 of the MOA shall be deleted in its entirety and be replaced by “6.1.23 Any such additional documents which may be required by the
Delivery Entity to register the Vessel under the flag of the Buyer’s Nominated Flag State and/or to transfer ownership of and title to the Vessel to the Delivery Entity; and”
|
|
2.12 |
A new Clause 6.1.24 shall be added to the MOA: “6.1.24 a copy of the dated Notice of Re-Assignment duly executed by Alpha Bank, and which Notice
of Re-Assignment shall be fully effective at the time at which it is provided to the Buyer.”
|
|
2.13 |
The following words in Clause 6.4 of the MOA shall be deleted in their entirety “ten (10) Banking Days prior to the intended date of delivery of
the Vessel to the Delivery Entity under this Agreement as notified by the Seller pursuant to Clause 4.1, (failing which the Buyer may cancel this Agreement with immediate effect upon written notice to the Seller and without
liability whatsoever on the part of the Buyer)” and be replaced by “one (1) Banking Day prior to the Definite Delivery Date as notified by the Seller pursuant to
|
|
2.14 |
Clause 6.4.13 of the MOA shall be deleted in its entirety and be replaced by:
|
|
2.15 |
Clause 6.4.14 of the MOA shall be deleted in its entirety and Clause 6.4.15 of the MOA shall be renumbered to be Clause 6.4.14 of the MOA;
|
|
2.16 |
Clause 6.7.1 of the MOA shall be deleted in its entirety and be replaced by: “
6.7.1 any additional documents required by the Buyer to enable payment of the Net Sales Proceeds to the account set out in the CISA Payment Undertaking (such payment subject always to
the provisions of Clause 2 and to the terms of the CISA Payment Undertaking); and
”;
|
|
2.17 |
Clause 6.8 of the MOA shall be deleted in its entirety and be replaced by: “
6.8 The Buyer shall notify the Seller of any such additional documents required by the Buyer, or, as the case may be, the Financier pursuant to Clause 6.7 no later than one (1) Banking
Day prior to the Definite Delivery Date (as determined by the five (5) Banking Day definite notice of the Definite Delivery Date as notified by the Seller pursuant to Clause 4.1)
”;
|
|
2.18 |
the copy of the Sub-Bareboat Charter attached at Appendix B to the MOA shall be deleted and replaced in its entirety by the document at Annex 1 to
this Addendum and all references in the MOA to the Sub-Bareboat Charter shall be read and construed accordingly;
|
|
2.19 |
the copy of the Vessel specifications attached at Appendix F to the MOA shall be deleted and replaced in their entirety by the documents at Annex
2 to this Addendum and all references in the MOA to the Specifications shall be read and construed accordingly; and
|
|
2.20 |
the document at Annex 3 to this Addendum shall be appended to the MOA in a new Appendix K.
|
3. |
This Addendum shall be an integral part of the MOA and shall be an amendment and supplement thereto and as and with effect from the date of this
Addendum, the MOA shall be read and construed subject to and in accordance with the terms of this Addendum. Save those altered and changed pursuant to this Addendum, all other terms and/or conditions of the MOA, including Clause 25
(
Guarantee
) of the MOA, shall remain unaltered and are, and shall remain, in full force and effect.
|
4. |
Each Party hereby represents and warrants to the other Parties that its execution of this Addendum has been duly authorised and this Addendum
constitutes its legal and valid obligations binding on it in accordance with the terms of this Addendum.
|
5. |
This Addendum may be executed in any number of counterparts each of which when executed shall constitute an original of this Addendum, but all the
counterparts shall together constitute the same agreement. No counterpart shall be effective until each Party has executed at least one counterpart. A signed copy received in .pdf format shall be deemed to be an original.
|
6. |
This Addendum and any non-contractual obligations arising out of, or in connection with, it shall be governed by, and construed in accordance
with, English law. Any disputes arising out of, or in connection with, this Addendum shall be settled in accordance with Clause 27 of the MOA which shall apply,
mutatis mutandis
, to this Addendum, as if set out in full herein.
|
|
29.
|
SEVERABILITY
|
43
|
30.
|
CAPTIONS
|
43
|
31.
|
BINDING EFFECT
|
43
|
1. |
Condition Precedent
|
2. |
Time Charter
.
|
3. |
Charter Term
.
|
|
(a) |
Subject to the terms and conditions of this Charter, the Owner hereby charters and demises to the Charterer and the Charterer hereby hires, and
takes on demise, from the Owner, the Vessel. Except as otherwise provided in this Charter, the term of this Charter (the “
Charter Term
”) shall continue from (x) the date of delivery of the Vessel to the Head Owner as nominee
of the Owner by the Builder and delivery by
|
|
(b) |
There shall be no extension of this Charter beyond the initial sixty (60) month term described in Section 3(a).
|
4. |
Delivery; Redelivery
.
|
|
(a) |
Delivery
.
|
|
(b) |
Redelivery. The provisions respecting redelivery of the Vessel as set forth in Sections 4 (b), 4 (c)(ii), 4 (d), 4 (e), 4 (f) and 4 (g) shall not
be applicable in the event that the Charterer acquires the Vessel pursuant to the terms and conditions of Section 12 (a) or 12 (b), as the case may be, and/or clause 5 of the Multipartite Agreement.
|
|
(c) |
Survey, Inventory and Inspection
.
|
|
(d) |
Redelivery – Condition
.
|
|
(e) |
Redelivery – Certificates
. The Charterer agrees that upon redelivery the Vessel will meet the complete requirements of, and be certificated
at, RightShip 3-star level or any replacement thereof.
|
|
(f) |
Redelivery – Access
. Following the termination of this Charter in accordance with Section 17(b)(i), the Charterer shall permit access to
the Vessel at reasonable times to the Owner and to persons designated by the Owner, and shall permit the inspection of the Vessel by such persons.
|
|
(g) |
Redelivery Inventory
. The Charterer shall redeliver the Vessel with the same amount of unbroached provisions, paints, oils, ropes, spare
parts and equipment, and other unused consumable stores as are on board and ashore at the commencement of the Charter Term as determined pursuant to the inventory conducted as part of the On-hire Survey. In the event consumable
stores are greater at redelivery than at delivery, the Charterer may remove the excess. Notwithstanding any term or condition of the Time Charter, all bunkers and fuel oil onboard the Vessel at the time of redelivery shall remain
the property of the Owner. Title to lubricants on board the Vessel at the time of redelivery shall be deemed to transfer to the Owner at the time of redelivery and the Owner shall not be obliged to pay for such lubricants.
|
|
(h) |
Documentation
. The Parties agree that on the Delivery Date, the Vessel shall be duly documented in the name of the Head Owner as owner
thereof under the laws and flag of the Flag State. The Owner shall be responsible for such registration and the Charterer shall promptly provide all assistance required by the Owner for the purposes of such registration. The
Charterer shall be responsible for naming the Vessel and for paying for initial Flag State documentation and maintaining such due documentation throughout the Charter Term, at the Charterer’s own cost and expense,
provided
,
the Owner agrees that the Owner will reasonably cooperate with the Charterer in establishing and maintaining such Flag State documentation. The Charterer shall also pay all the Flag State fees associated with initial documentation
and any annual Flag State fees required to maintain documentation or the Head Owner’s foreign maritime entity status. The Charterer shall not suffer or permit anything to be done which might injuriously affect the entitlement of the
Vessel to be documented under the laws and regulations of the Flag State.
|
5. |
Charter Hire
.
|
|
(a) |
Charter Hire
.
|
|
(b) |
Hell or High Water Charter Obligation
. This Charter may not be cancelled or terminated, except in accordance with the express provisions of
this Charter and the Multipartite Agreement, for any reason whatsoever. The Charterer shall have no right to be released, relieved or discharged from any obligation or liability hereunder except as set forth in explicit provisions
of this Charter. Except as hereinafter provided, the Charterer's obligation to pay Charter Hire hereunder shall be absolute during the term of this Charter irrespective of any contingency whatsoever, including, but not limited to
(i) any set-off,
|
6. |
Use; Operations
|
|
(a) |
Subject to the provisions of Section 6(m), the Charterer may operate the Vessel worldwide, provided: (i) the Charterer shall only use the Vessel
in the territorial waters of nations which recognize the rights of vessels registered in the Flag State; (ii) the Vessel shall be used only in locations where the Vessel’s operating specifications allow it to operate safely; (iii)
the Vessel shall be employed only in lawful activities under the laws of the United States
|
|
(b) |
The Charterer shall comply with and satisfy (and to the extent required, have on board certificates evidencing its compliance with) all provisions
of any applicable law, treaty, convention, regulation, proclamation, rule or order applicable to the Vessel, its use, operation, maintenance, repair or condition, including, but not limited to, any financial responsibilities imposed
on the Charterer or the Vessel with respect to pollution by any state or nation or political subdivision thereof and shall maintain all certificates or other evidence of financial responsibility and a vessel spill response plan
required under United States law approved by the relevant authority and evidence of their approval by the appropriate United States government entity (including, but not limited to, the United States Coast Guard) as may otherwise be
required by any such law, treaty, convention, regulation, proclamation, rule or order with respect to the operations and trading in which the Vessel is from time to time engaged.
|
|
(c) |
The Charterer (including by its Vessel managers) shall have sole responsibility as owner and as technical and commercial operator under all
Environmental Laws, and under certificates of financial responsibility and vessel spill response plans.
|
|
(d) |
Without prejudice to the generality of Section 6(b) above, the Charterer and the Vessel shall comply with all Environmental Laws including but not
limited to all requirements of the United States Coast Guard (as amended from time to time).
|
|
(e) |
If at any time during the Charter Term the Vessel is rejected by any Oil Major, the Charterer shall inform the Owner immediately in writing, and
the Charterer shall have forty-five (45) days in which to restore the Vessel’s Acceptability provided that the Vessel’s trading patterns and the relevant Oil Major’s rules permit a re-inspection (if required).
|
|
(f) |
The Charterer shall use its best endeavours for the Vessel at all times to comply with each of the Oil Majors’ crew matrix requirements.
|
|
(g) |
As at the Delivery Date the Charterer shall have:
|
|
(h) |
The Charterer shall procure that a valid SIRE report will be registered on the SIRE system at all times throughout the Charter Term, provided that
it is agreed and understood that a full OCIMF SIRE inspection cannot be undertaken until the Vessel reaches her first (first in time after the Delivery Date) discharge port. Accordingly, and subject to the suitability of the
Vessel’s first (first in time after the Delivery Date) discharge port for carrying out OCIMF SIRE inspections and the availability of SIRE inspectors at such port, the Charterer shall, unless the Owner otherwise requests that the
OCIMF SIRE inspection be carried out at the Vessel’s first (first in time after the Delivery Date) loading port (and in the event of such request, the Charterer agrees to use best efforts to procure that such inspection be carried
out at such loading port), procure that an OCIMF SIRE inspection of the Vessel is completed at the Vessel’s first (first in time after the Delivery Date) discharge port. For the purposes of this Charter, a SIRE report will be deemed
to be valid if:
|
|
(i) |
the SIRE report does not contain any finding or observation that BP Shipping would require one of its inspectors to report the Vessel as being “BP
High risk”, including but not limited to, the observations contained in the BP Shipping Vessel Vetting Service “High Risk” Observations List issued on 21 June 2007 (and as the same may be updated from time to time);
|
|
(j) |
If the Charterer becomes aware that the Vessel is unacceptable to any Oil Major or becomes aware of any information that could or does make the
Vessel unacceptable to any Oil Major including without limitation any incidents/accidents/casualties/structural problems/fleet holds, the Charterer shall advise the Owner immediately in writing. If the Charterer has become aware
that the Vessel is unacceptable to any Oil Major, or has become aware of any information as referred to above in this Section 6 (j) the Charterer must reinstate or ensure the Acceptability of the Vessel within forty-five (45) days
from the date on which the Charterer became aware of such unacceptability or information, as the case may be, provided that the Vessel’s trading patterns and/or the Oil Major’s rules permit a re-inspection, if required.
|
|
(k) |
If, in order to obtain any Acceptability, it is necessary for an Oil Major to carry out an inspection of the Vessel, the cost of such an
inspection plus any time lost in order to effect, and as a result of, such inspection shall, for the avoidance of doubt, be for the Charterer’s account.
|
|
(l) |
In the event of any disagreement between the Owner and the Charterer as to whether the Vessel has an Acceptability from any entity, the Charterer
shall immediately provide the Owner on its request with all correspondence exchanged with such entity, provided such entity agrees to the same. Any communication from such entity shall be deemed not to be an Acceptability if the
relevant entity issuing it states in writing that it needs to carry out its own physical inspection of the Vessel for it to give an Acceptability, unless the Vessel is conditionally accepted and the Charterer has demonstrated that
such conditions have been met. A communication by the relevant entity that it will refer to the registered valid SIRE report is, if such communication is in writing, evidence that such a physical inspection is not required but is
not evidence that the Vessel is acceptable to the relevant entity. However, is it not evidence that the Vessel is unacceptable to such entity either.
|
|
(m) |
The Charterer covenants and agrees that the Vessel will not (i) be chartered (or sub-chartered) to a Prohibited Person unless authorized under a
specific license issued by the U.S. Treasury Department Office of Foreign Assets Control (“
OFAC
”), (ii) make voyages to or from any
Prohibited Country unless authorized under a specific license issued by OFAC, or (iii) be allowed to carry any cargo from or destined to a Prohibited Country unless authorized under a specific license issued by OFAC.
|
|
(n) |
The Charterer covenants and agrees that it will conduct its businesses and manage its properties (including, but not limited to its operation of
the Vessel) in compliance with all applicable anti-money laundering laws, rules and regulations.
|
7. |
Maintenance and Operation
.
|
|
(a) |
Charterer’s Control and Expenses
. During the
Charter Term, the Charterer shall have exclusive control of the Vessel and shall be solely responsible for the maintenance and operation of the Vessel and, subject to the terms of this Charter, will operate, navigate, man and
victual the Vessel at its own cost and expense. The Charterer shall pay all charges and expenses of every kind and nature whatsoever incident to the use and operation of the Vessel under this Charter throughout the Charter Term.
Such costs and expenses shall include, but not be limited to, those relating to (w) customs duties, bonds, work permits, fees, licenses, clearances, pilotage fees, wharfage fees, canal fees and costs, or similar charges incurred in
connection with the importation, exportation, operation or navigation of the Vessel by the Charterer, (x) maintaining all the Vessel’s trading certificates necessary for its operations and all other certificates required by the Flag
State (or other governmental agencies or regulatory authorities having jurisdiction over the Vessel (or the area where the Vessel is operating from time to time) including, if applicable, the United States Coast Guard), (y)
maintaining the Vessel, the Vessel’s machinery, appurtenances and spare parts in the condition required under Section 7(b) and the requirements of any applicable classification societies and other regulatory agencies having
authority over the Vessel, and (z) supervision, management, victualing (including catering), supplies, parts service companies, port charges, dockage and wharfage, fuelling and lubrication.
|
|
(b) |
Maintenance and Repairs
. During the Charter
Term, the Charterer, at its own cost and expense, will maintain the Vessel as necessary to keep the Vessel in class, clean, painted and in good running order, repair and condition in accordance with good commercial practices, and in
any event, in a manner that a prudent ship owner of vessels similar in age, type and trade to the Vessel
|
|
(c) |
Reports and Rights of Inspections
. The
Charterer will keep proper books of record and account in which full and correct entries will be made of all dealings or transactions of, or in relation to, the business and affairs of the Charterer respecting the Vessel in
accordance with US GAAP consistently applied on a consistent basis, and will furnish to the Owner or cause to be furnished to the Owner:
|
|
(d) |
Lay-up
. The Charterer shall be responsible for
laying the Vessel up in a safe and acceptable condition and location during such a time as the Vessel is not employed or seeking employment. During any such lay-up period, the Charterer shall ensure that the Vessel is adequately
supervised and manned at all times. The costs and expenses in any way related to such lay-up or any reactivation shall be paid by the Charterer.
|
8. |
Alterations
.
|
|
(a) |
Structural Modifications
. The Charterer will
not make any material structural or other changes in the Vessel (a “
Modification
”) without the prior written
|
|
(b) |
Alterations and Restoration
. Subject to the
maintenance provisions of this Charter, the Charterer may at any time alter or remove items of equipment, or may fit additional items of equipment required to render the Vessel available for a customer’s purpose; provided the
Charterer absorbs the cost and time of such alterations and the Charterer restores prior to redelivery of the Vessel any items so altered or removed as the case may be. Such changes shall not be made without the appropriate approval
of the Classification Society and certifying authorities.
|
|
(c) |
Replacements
. The Charterer shall from time to
time during the Charter Term, at its own cost and expense, replace such items of equipment on the Vessel as shall be so damaged or worn as to be unfit for use. Any replacement items of equipment, to the extent they replace items of
equipment owned by the Owner or the Head Owner, shall without further action become property of the Owner or the Head Owner, as the case may be.
|
|
(d) |
Required Modifications
. Subject to Section 8(g)
below, the Charterer, at its own cost and expense, shall make all Modifications required by any applicable law or required by any governmental agency having jurisdiction over the Vessel, including, if applicable, the United States
Coast Guard, or required by the Classification Society.
|
|
(e) |
Title to Modifications
. Title to each
Modification shall vest as follows:
|
|
(f) |
Removal of Property
. Subject to compliance, in
all material respects, with applicable law and so long as no Event of Default shall have occurred and be continuing, the Charterer may remove any Severable Modification to which the Head Owner does not have title, and any other
property to which the Charterer shall have title as provided in this Section 8, provided that the Charterer, at its own cost and expense and prior to the end of the Charter Term, shall repair any damage to the Vessel (or any part
thereof) caused by such removal.
|
|
(g) |
Contest of Requirements of Law
. If, with
respect to requirement of applicable law or governmental agency having jurisdiction over the Vessel or requirement of the Classification Society (i) the Charterer is contesting diligently and in good faith by appropriate proceedings
such requirement or (ii) compliance with such requirement shall have been excused or exempted by a valid non-conforming use permit, waiver, extension or forbearance exempting the Charterer from such requirement or (iii) the
Charterer shall be making a good faith effort and shall be diligently taking the appropriate steps to comply with such requirement, then the failure by the Charterer to comply with such requirement shall not constitute an Event of
Default hereunder;
provided
,
however
,
that such contest or non-compliance does not involve (A) any danger of criminal liability being imposed on the Head Owner or the Owner or (B) any material risk of (1) the imminent arrest or sale of, or the creation of any lien
(other than a Permitted Lien) on, the Vessel or (2) material civil liability being imposed on the Owner or the Head Owner. The Charterer agrees to give prompt written notice to the Owner in detail sufficient to enable the Owner and
the Head Owner to ascertain whether such contest may have any material adverse effect of the type described in the above proviso.
|
9. |
Insurance-General
.
|
|
(a) |
Form of Insurance; Indemnity
. All insurance
required under this Section shall be in such form and with such underwriters, companies or clubs as the Owner and the Head Owner shall reasonably approve. All insurance contracts shall (i) provide that the insurer’s right of
subrogation against the Owner and/or Sumitomo and/or the Head Owner shall be waived; (ii) provide that such insurance shall be primary and without right of contribution from any other insurance which is carried by the Owner and/or
Sumitomo and/or the Head Owner; and (iii) be issued by underwriters or insurers with an A.M. Best Co. insurance rating upon issuance of the policy of “A-” (or higher), which underwriters or insurers may not be an affiliate of the
Owner or Charterer or any sub-bareboat charterer. The Owner (and if applicable, the Owner’s bank as mortgagee of the Vessel), Sumitomo and the Head Owner (and if applicable the Head Owner’s bank as mortgagee of the Vessel), in the
case of protection and indemnity coverage, shall be named as named assureds on all insurance required under this Section, but where commercially available without liability for premiums; and the Owner (and if applicable, the Owner’s
bank as mortgagee of the Vessel) and the Head Owner (and if applicable the Head Owner’s bank as mortgagee of the Vessel) in respect of hull and machinery insurance, shall be named as additional named assured and the loss payee(s);
provided
,
however
, that unless an
Event of Default shall have occurred and be continuing, the underwriters may pay any claims under such hull and machinery insurance not in excess of United States Dollars Five Hundred Thousand (US$500,000) directly to the Charterer
for the repair of the Vessel.
|
|
(b) |
Proof of Insurance
. The Charterer shall furnish
the Owner and the Head Owner on the Delivery Date and, at such other times on request, and in any event at least annually, with copies of certificates of insurance (certificates of entry for Protection and Indemnity) evidencing all
insurance policies and showing the Owner, Sumitomo and the Head Owner as Joint Members on the Protection and Indemnity Insurance and the Owner and the Head Owner as loss payees (as set forth in the Attachments to Exhibit B hereto)
on the Hull & Machinery Coverage and cover notes or other documents evidencing the creation, renewal, amount and payment of the insurance maintained on the Vessel and for which period the insurance premiums are paid.
|
|
(c) |
Forced Insurance
. In the event the Charterer
fails to procure and maintain insurance in accordance with this Section 9, the Owner and/or the Head Owner may, but shall not be obligated to, effect and maintain the insurance or entries in a P&I Club (including on behalf of
Sumitomo) as required herein and to pay the premiums therefor and, upon the Owner’s giving written notice to the Charterer of the amounts of premiums and costs so incurred by either the Owner and/or the Head Owner, the Charterer
shall reimburse the Owner and/or the Head Owner, as applicable, for such amounts, together with interest thereon from the date of payment by the Owner and/or the Head Owner to the date of reimbursement, at the Default Rate, not
later than fifteen (15) days after such notice.
|
|
(d) |
Termination Due To Loss
. This Charter shall be
terminated due to a total or constructive total loss of the Vessel as determined by underwriters (“Total Loss”), and Charter Hire pursuant to Section 5 shall be payable until the date on which underwriters make a determination that
the event occurred which gave rise to the Total Loss (the “
Loss Termination Date
”). Termination shall occur only upon payment of all
amounts due under Section 9(e) below.
|
|
(e) |
Payments in Event of Total Loss
. In the event
of Total Loss of the Vessel, the Owner, in lieu of any and all other claims and damages, shall receive from the
|
|
(f) |
Limitation of Liability
. Nothing in this
Charter shall be construed or held to deprive the Owner, Sumitomo, the Charterer or the Vessel of any right to claim limitation of liability against third parties (other than the Head Owner) provided by any applicable statute of any
jurisdiction.
|
|
(g) |
Wreck Removal
. In the event the Vessel becomes
a wreck or obstruction to navigation, the Charterer shall, if required by applicable law, remove such wreck or obstruction and shall indemnify the Owner and the Head Owner against any sums whatsoever which the Owner and the Head
Owner shall become liable to pay or shall pay in consequence of the Vessel becoming a wreck or obstruction to navigation.
|
|
(h) |
Requisition
. In the event that the Vessel shall
be requisitioned for hire, or otherwise taken by any governmental agency on the basis of a bareboat or time charter (other than a requisition of title or a taking which constitutes a Total Loss), during the Charter Term, the
Charterer will continue to pay Charter Hire and will collect and retain the compensation, reimbursements or awards for such requisition, or other taking of the Vessel received. If the Owner receives the compensation, reimbursements
or awards, then, provided no Event of Default shall have occurred and be continuing, the Owner agrees that it will turn over forthwith to the Charterer all compensation,
|
10. |
Liens
.
|
|
(a) |
Neither the Charterer nor any of its employees shall have any right, power or authority to create, incur or permit to be imposed upon the Vessel
any lien whatsoever during the Charter Term, except for (i) crew’s wages (including the master of the Vessel), or wages of stevedores when employed directly by the Charterer, any sub-charterer or the master or agent of the Vessel,
(ii) damages arising out of maritime tort, (iii) general average and salvage (including contract salvage), (iv) liens for taxes not yet due (provided that the Charterer has established appropriate reserves for the payment of such
taxes), (v) other maritime liens arising in the ordinary course of the Charterer’s business
provided
, such other maritime liens
shall be permitted only to the extent such amounts are not more than twenty five (25) days past due unless such amounts are being contested in good faith by appropriate legal proceedings diligently pursued and for which appropriate
reserves are established, and (vi) any mortgage executed by the Owner and/or the Head Owner (collectively, “
Permitted Liens
”). The
Charterer shall carry a copy of this Charter with the Vessel’s papers, and on demand will exhibit the same to any person having business with the Vessel which might give rise to any lien thereon, other than liens for crew’s wages,
general average and salvage. The Charterer will place and keep prominently displayed in the chart room and the captain’s cabin on the Vessel in a conspicuous place, a notice, framed under glass, printed in plain type of such size
that the paragraph of reading material shall cover a reasonable space acceptable to the Owner reading as follows:
|
|
(b) |
With respect to any claims and demands made by any person against the Owner or the Head Owner or the Vessel, except if the claim or demand has
been brought about as a result of an action or omission of the Owner or the Head Owner (as the case may be), the Charterer hereby agrees as follows:
|
|
(c) |
Notwithstanding the foregoing provisions of this Section 10, if a libel shall be filed against the Vessel, or if the Vessel shall be seized,
arrested, levied upon and taken into custody or detained in any proceeding in any court or tribunal or by any government or under colour of authority, the Charterer shall forthwith give notice of such arrest and taking or detention
to the Owner and (except in connection with any taking or requisition of the title or use of the Vessel by any governmental authority or as a result of any action or omission of the Owner) cause the Vessel to be released therefrom
within twenty five (25) days from the date of such seizure, arrest or detention, or within such lesser time as may be necessary to avoid prejudice to the interests of the Owner with respect to the Vessel. Without limiting the
Charterer’s obligations under Section 18 of this Charter, the Charterer shall hold harmless, defend and indemnify the Owner, the Head Owner and the Vessel from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, judgments, costs and expenses, including attorneys’ fees, of whatsoever kind and nature, imposed on, incurred by or claimed against the Owner, the Head Owner or the Vessel, in any way relating to
or arising out of the assertion of a lien against the Vessel, including, without limitation, a Permitted Lien (but excluding any lien claimed by any person claiming the same by, through or under the Owner or as a result of any
action or omission of the Owner).
|
11. |
Mortgages; Financing; Subordination
.
|
|
(a) |
The Charterer hereby agrees that should the Owner and/or the Head Owner wish to mortgage the Vessel or assign this Charter in connection with any
financing arrangements of the Owner and/or the Head Owner, the Charterer shall agree to post notices of the mortgage and the Charter as reasonably required, execute such documents reasonably acknowledging the terms and existence of
the mortgage, and the assignment of charter, and otherwise cooperate reasonably with the Owner and/or the Head Owner and any mortgagee in respect of such financing. Any such mortgage shall provide that the Charterer shall have the
right of quiet enjoyment in its use of the Vessel so long as no Event of Default has occurred and is continuing under this Charter and further that such mortgage shall not impede (if applicable) any purchase option of the Charterer
under the Multipartite Agreement (which will be confirmed in a separate letter of quiet enjoyment in favour of the Charterer), and that notice of any event of default under such mortgage shall be promptly given to the Charterer. Any
reasonable costs and expenses associated with such activity will be borne by the Owner. Any mortgagee of the Vessel shall be qualified under applicable law and regulations to hold a mortgage on the Vessel without jeopardizing the
Vessel’s
|
|
(b) |
The Charterer hereby agrees that its right to use the Vessel and other rights related thereto, shall, in all respects, be subject, subordinate and
junior to the lien of any preferred mortgage or other security agreement created by the Owner and/or the Head Owner, and to the rights of the holder thereof, whether executed heretofore or hereafter (subject to the Charterer’s
rights of quiet enjoyment under this Section 11 and its further rights set forth in Sections 12 and 14). After notice of default in payment or performance under any such mortgage or security agreement, subject always to the
Charterer’s continued right of quiet enjoyment in its use of the Vessel, the Charterer may perform or pay Charter Hire for the Vessel to the holder of such security, and the same, to the extent of such payment, shall constitute
payment of Charter Hire as if it had been made to the Owner.
|
|
(c) |
The Owner agrees and confirms that, so long as no Event of Default hereunder has occurred and is continuing, the Charterer shall have exclusive
possession, control, and quiet enjoyment in its use of the Vessel during the Charter Term, subject to the conditions of this Charter, without hindrance or molestation by the Owner, or any other person claiming by, through or under
the Owner.
|
12. |
End of Charter and Other Options
.
|
|
(a) |
On the last day of the Charter Term, unless an Event of Default or a failure to pay the whole or part of any Charter Hire on the due date thereof
shall have occurred and be continuing, the Charterer shall purchase the Vessel for the respective Purchase Price as set forth below in Section 12(d) plus (w) Basic Charter Hire due through and including the date of purchase, (x) any
applicable taxes (other than any taxes based upon or measured by the income of the Owner), (y) expenses of sale (including the Owner’s and the Head Owner’s reasonable counsel fees), and (z) any Additional Hire then due hereunder;
|
|
(b) |
Subject to the terms and conditions of this Section 12, upon written notice from the Charterer to the Owner (with a copy to the Head Owner)
setting forth the Charter Hire Payment Date on which the Charterer wishes to purchase the Vessel and pay to the Owner the Early Purchase Amount (as such term is defined below) (the “
Purchase Option Notice
”) (such Purchase Option Notice to be given not less than one hundred and thirty (130) days prior to the Charter Hire Payment Date during the Charter
Term on which the Charterer wishes to purchase the Vessel), the Charterer shall have the option to, unless an Event of Default or a failure to pay the whole or part of any Charter Hire on the due date thereof shall have occurred and
be continuing, purchase the Vessel on the Charter Hire Payment Date set forth in the Purchase Option Notice for (v) the respective Purchase Price set forth below in Section 12(d) plus (w) Charter Hire due through and including the
date of purchase (x) any applicable taxes (other than any taxes based upon or measured by the net income (however denominated) of the Owner) (y) expenses of sale (including the Owner’s and the Head Owner’s reasonable counsel fees)
and (z) either (i) plus any Arrangements Credit (as defined in Section 12(j)), or (ii) less any Arrangements Debit (as defined in Section 12(j)) and (zz) the amount due
|
|
(c) |
Not less than one hundred and seventy (170) days prior to the end of the Charter Term, the Charterer shall provide the Owner with irrevocable
written confirmation of its purchase of the Vessel pursuant to Section 12(b). Should the Charterer fail to provide such confirmation or a notice pursuant to Section 12(b), the Charterer shall be obliged to purchase the Vessel in
accordance with Section 12(a).
|
|
(d) |
If the Charterer:
|
|
(e) |
ANY SALE OF THE VESSEL TO THE CHARTERER (OR AS THE CHARTERER MAY DIRECT, A NOMINEE) PURSUANT TO THIS SECTION 12 SHALL BE MADE WITHOUT ANY
WARRANTIES BY THE OWNER OR THE HEAD OWNER WHATSOEVER, EITHER EXPRESS OR IMPLIED, EXCEPT THAT THE OWNER, OR, AS THE CASE MAY BE, THE HEAD OWNER, SHALL WARRANT THAT THE VESSEL IS FREE AND CLEAR OF ANY LIENS OR ENCUMBRANCES CREATED BY
OR THROUGH THE OWNER, OR, AS THE CASE MAY BE, THE HEAD OWNER AND ITS PREDECESSORS IN TITLE EXCEPT FOR THE BUILDER, THE SELLER OR THE CHARTERER (OR ANY SUBSIDIARY OR AFFILIATE THEREOF) AND THAT THE OWNER, OR, AS THE CASE MAY BE, THE
HEAD OWNER, IS TRANSFERRING WHATEVER TITLE IT ORIGINALLY RECEIVED. WITHOUT LIMITING THE FOREGOING, ANY SUCH SALE SHALL BE ON AN “AS IS, WHERE IS” BASIS WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO TITLE (EXCEPT AS SET FORTH
IN THE PREVIOUS SENTENCE) OR THE DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SEAWORTHINESS OR CONDITION OF THE VESSEL, OR ELIGIBILITY OF THE VESSEL TO ENGAGE IN ANY PARTICULAR TRADE. ALL SUCH WARRANTIES SHALL BE
EXPRESSLY WAIVED BY THE CHARTERER AT THE TIME OF SUCH SALE. ALL SALES, USE AND OTHER TAXES WHICH MAY BECOME DUE AS A RESULT OF THE SALE SHALL BE FOR THE SOLE ACCOUNT OF THE CHARTERER. UPON ITS RECEIPT IN GOOD COLLECTED FUNDS OF THE
AMOUNT PAYABLE PURSUANT TO SECTION 12(A) OR, AS THE CASE MAY BE, SECTION 12(B), THE OWNER AGREES TO EXECUTE AND DELIVER (OR, AS THE CASE MAY BE, PROCURE THAT THE HEAD OWNER EXECUTES AND DELIVERS) TO THE CHARTERER OR THE CHARTERER'S
NOMINEE ANY AND ALL DOCUMENTS REQUIRED BY THE LAW OF THE FLAG STATE FOR THE PURPOSE OF RE-REGISTERING THE VESSEL IN
|
|
(f) |
For the purposes of establishing the Market Value (as such term is defined in Section 12(g) below) of the Vessel:
|
|
(g) |
Subject to Section 12(f)(ii), each of the Charterer and the Owner shall instruct their respective Appointed Broker, and shall jointly instruct the
Third Broker, to consider the market value of the Vessel:
|
|
(h) |
In the event that the Market Value is greater than the Purchase Price, the Charterer shall pay to the Owner an amount equal to twenty five per
cent (25%) of the difference between the Market Value and the Profit Share Price (the “
Profit Share Amount
”). Any amount payable by
the Charterer to the Owner pursuant to this Section 12(h) shall become due and be paid concurrently with the amounts payable by the Charterer to the Owner pursuant to Section 12(a) or, as the case may be, Section 12(b), above,
including, but not limited to, the Purchase Price. For the avoidance of doubt, the Profit Share Amount shall be calculated without regard to any Arrangements Credit or Arrangements Debit or to any amount due under clause 108 of the
Time Charter.
|
|
(i) |
For the purposes of this Section 12, the “Approved Brokers” shall be deemed to mean:
|
|
(j) |
If the Charterer exercises its early purchase option under Section 12(b) or if the Owner, by written notice to the Charterer, declares the
Charterer in default hereunder pursuant to Section 17 and the Event of Default in question is an Event of Default under the Bareboat Charter, and the Charterer is entitled to purchase the Vessel pursuant to the terms of clause 5 of
the Multipartite Agreement and the Vessel is to be acquired by the Charterer pursuant to such
|
|
(k) |
Unless and until all the applicable foregoing payments and performance set forth in this Section 12 have been made and/or performed in full by the
Charterer, the Charterer's obligations under this Charter, including, without limitation, the obligation to pay Charter Hire for the Vessel, shall continue in full force and effect.
|
13. |
Representations and Warranties; Owner Covenants
.
|
|
(a) |
Charterer’s Representations
. The Charterer
represents, warrants, covenants, and agrees to and with the Owner that: (i) the Charterer is a limited liability company duly organized, validly existing, and in good standing under the laws of the Republic of the Marshall Islands,
has the power to own its property and assets, and is duly qualified in each jurisdiction where the nature of its operations requires such qualification, (ii) the execution, delivery, and performance of this Charter are within the
Charterer’s power, have been duly authorized by all necessary limited liability company action, do not contravene the Charterer’s certificate of organization or regulations, or similar documents, or violate any judgment, order or
decree applicable to the Charterer, and do not contravene any law, any order of any court or other agency of government, or any agreement or instrument or contractual restriction binding on or affecting any of its property, or
constitute a default thereunder, and (iii) this Charter constitutes the legal, valid and binding obligation of the Charterer enforceable against the Charterer in accordance with its terms.
|
|
(b) |
Owner’s Representations and Covenants
. The
Owner represents, warrants, covenants, and agrees to and with the Charterer that (i) the Owner is a company organized, existing, and in good standing under the laws of the Switzerland, (ii) the Owner has the requisite limited
liability company power and authority to hold title to the Vessel and to enter into and carry out the transactions contemplated and to execute, deliver and perform under this Charter; (iii) the execution, delivery, and performance
of this Charter do not contravene the provisions of the certificate of organization or regulations, or similar documents, of the Owner, or violate any judgment, order or decree applicable to the Owner or result in any violation of,
or conflict with, or constitute a default under, or subject the Vessel to any lien of, any indenture, contract, agreement or other instrument applicable to the Owner, (iv) this Charter constitutes the legal, valid and binding
obligation of the Owner enforceable against the Owner in accordance with its terms, and (v) the Owner will not create or permit to exist, any lien or encumbrance on or against the Vessel that arises out of the express action or
omission of the Owner, other
|
14. |
Assignment; Sub-bareboat Charter
.
|
|
(a) |
The Charterer does not have the right to, and shall not, assign, pledge, or hypothecate this Charter (by operation of law or otherwise), in whole
or in part, or any interest herein, or any right, duty or obligation hereunder (collectively, an “u”) without the prior written consent of the Owner, which consent is subject to the consent of the Head Owner, in their absolute
discretion, and any purported Assignment without the Owner’s and the Head Owner’s prior written consent shall be void and unenforceable against the Owner and the Head Owner. The Owner will exercise reasonable endeavours to obtain
such consent from the Head Owner. The Charterer shall remain primarily liable under this Charter and the Guarantor will remain primarily liable under the Guarantee in the event of any permitted Assignment, which will in no event be
considered a novation of this Charter unless the Owner expressly agrees to the contrary in writing.
|
|
(b) |
Notwithstanding the foregoing, the Charterer agrees that it shall not further sub-bareboat or sub-time charter or otherwise let or charter the
Vessel to any person without the prior written consent of the Owner and the Head Owner, except under the Time Charter. In the case of any permitted sub-bareboat charter of the Vessel, such sub-bareboat charter (i) shall state it is
subject and subordinate to the rights of the Owner and the Head Owner hereunder, (ii) shall not contain any terms and conditions which would prevent the Charterer from fulfilling its obligations under this Charter, (iii) shall
include an express prohibition against any further sub-bareboat charters without the prior written consent of the Owner and the Head Owner, and (iv) shall contain an acknowledgement by the sub-bareboat charterer stating that it
acknowledges the existence of this Charter and the Bareboat Charter and their priority over all of the terms of the sub-bareboat charter.
|
15. |
Logo and Vessel Names
.
|
16. |
Notices
.
|
17. |
Defaults; Remedies
.
|
|
(a) |
Events of Default
. Any one or more of the
following is an Event of Default (“Event of Default”) by the Charterer:
|
|
(b) |
Remedies
. At any time that an Event of Default
has occurred and is continuing, the Owner, by written notice to the Charterer, may declare the Charterer in default hereunder, in which case the Owner shall be entitled to pursue all remedies available at law or in equity or in
admiralty, including, without limitation, the following remedies:
|
|
(1) |
to pay all of the Owner’s and the Head Owner’s costs, charges and expenses incurred in taking, moving, laying-up, holding, repairing, selling,
chartering or otherwise disposing of the Vessel;
|
|
(2) |
to the extent not previously paid by the Charterer, to pay the Owner all sums (including the Loss Value as provided in Section 17(b)(iii) above)
due by the Charterer under this Charter;
|
|
(3) |
to reimburse the Charterer for any Loss Value previously paid by the Charterer to the Owner in accordance with Section 17(b)(iii) above; and
|
|
(4) |
any sums remaining shall be retained by the Owner.
|
|
(c) |
Multipartite Agreement
. If the Owner, by
written notice to the Charterer, declares the Charterer in default under this Charter pursuant to this Section 17 and the Event of Default in question is a Relevant Event of Default (as defined below), and the Charterer is entitled
to purchase the Vessel pursuant to the terms of clause 5 of the Multipartite Agreement and the Vessel is to be acquired by the Charterer pursuant to such terms, then prior to the Charterer’s purchase of the Vessel pursuant to the
terms of clause 5 of the Multipartite Agreement the Charterer shall pay to the Owner (v) Charter Hire due through and including the date of purchase, (w) any applicable taxes (other than any taxes based upon or measured by the net
income (however denominated) of the Owner), (x) expenses of sale (including the Owner’s and the Head Owner’s reasonable counsel fees), (y) the amount due under clause 108 of the Time Charter and (z) either (i) plus any Arrangements
Credit (as defined in Section 12(j)), or (ii) less any Arrangements Debit (as defined in Section 12(j)). For the purposes of this Charter, a “Relevant Event of Default” means an Event of Default under the Bareboat Charter which was
caused in whole or in part by the act or omission of the Charterer.
|
|
(d) |
Notwithstanding any other provision of this Charter, in the event that this Charter is terminated pursuant to the terms of clause 4.6 of the
Multipartite Agreement, the Parties unconditionally and irrevocably agree that the following Sections shall survive (or as the case may be shall be deemed to survive) such termination of this Charter and are expressly made for the
benefit of, and shall be enforceable by, the Owner, its successors and assigns: Section 16 (Notices); Section 17 (Defaults; Remedies); Section 19 (Income Tax); Section 20 (Law and Jurisdiction); Section 25 (Waiver); and Section 26
(No Remedy Exclusive).
|
18. |
Indemnification, Withholding and Certain Agreements
.
|
|
(a) |
Owner’s Indemnification of the Charterer
. The
Owner agrees to indemnify, defend, and hold harmless the Charterer from all damages or costs arising as a result of (i) the Owner’s violation of any law or regulation of the jurisdiction in which the Owner is organized or maintains
its principal office (other than a violation that would not have occurred but for the use, operation or presence of the Vessel or any part thereof in the relevant jurisdiction or the failure of the Charterer to perform its
obligations under this Charter or any act or omission of the Charterer), (ii) the gross negligence or wilful misconduct of the Owner unless such gross negligence or wilful misconduct is imputed to the
|
|
(b) |
Charterer’s Indemnification of the Owner and the Head
Owner
. The Charterer hereby assumes liability for, and shall defend, indemnify and hold harmless the Indemnified Parties (for the purposes of this Section 18, “
Indemnified Parties
” means: the Owner, the Head Owner and any of their affiliates and any mortgagee of the Vessel, whose identity the Owner has notified the Charterer of, and each of
their respective successors and assigns, and the directors, officers, employees, representatives, agents and servants of any of the foregoing, and each an “Indemnified Party”) from and against any and all Claims (as hereinafter
defined) which may be imposed on, incurred by or asserted against any of the Indemnified Parties or the Vessel (whether or not also indemnified against pursuant to any other agreement or by any other person), regardless of when
asserted (whether after or during the Charter Term) and in any way relating to or arising out of any of the following: the documentation, registry, possession, use, operation, lay-up, chartering, subchartering, condition,
maintenance, repair, each Acceptability, inspection, compliance with Environmental Laws and return of the Vessel. Notwithstanding the foregoing, the Charterer shall not be obligated to indemnify any Indemnified Party in respect of
any act or omission constituting gross negligence by such Indemnified Party, or its agents or representatives. The Charterer agrees to further indemnify, defend and hold harmless each Indemnified Party and the Vessel from and
against all liens created and imposed on the Vessel other than those caused by Owner's or, as the case may be, the Head Owner’s own actions, and in the event of the seizure of the Vessel under legal process to enforce such lien or
asserted lien, the Charterer shall secure the prompt release of the Vessel by payment of same or otherwise as may be appropriate. The Owner's right to Charter Hire as provided for in Section 5 of this Charter shall not be suspended
during any time when the Vessel is under seizure by legal process as a result of such liens or asserted liens. As used herein, "Claims" shall mean any and all liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs, expenses, fines, penalties and disbursements (including, without limitation, reasonable attorneys' fees, litigation expenses and investigatory fees and disbursements) of whatsoever kind and nature, including, without
limitation, (i) claims or penalties arising from any violation of the laws or regulations of any authority or country or political subdivision thereof, (ii) claims as the result of latent, patent or other defects, whether or not
discoverable by the Owner, the Head Owner or the Charterer, (iii) Environmental Claims, and (iv) tort claims of any kind, including, without limitation, claims for injury or damage caused by leakage, discharge or spillage of oil or
cargo, refuse or any hazardous substance, but excluding Taxes (as such term is defined in Section 18 (c) below).
|
|
(c) |
Charterer’s Withholding
. Notwithstanding
anything herein or in the Bareboat Charter to the contrary, the Charterer hereby covenants and agrees that it shall make all payments of Charter Hire and other amounts payable by the Charterer under this Charter to the Owner or any
Indemnified Party or any Tax Indemnitee (for the purposes of this Section 18, “
Tax Indemnitee
” means any
|
|
(d) |
Survival
. The obligations of the Owner and the
Charterer under this Section 18 shall survive the expiration or earlier termination or cancellation of this Charter and are expressly made for the benefit of, and shall be enforceable by, the party to which the obligations are owed,
and its successors and assigns.
|
|
(e) |
No Limitation
. Except as otherwise limited
herein, it is the intent of the Parties that all indemnity obligations or liabilities assumed by the Parties under this Charter be without limit and without regard to the cause or causes thereof (including pre-existing conditions),
the unseaworthiness of any vessel, strict liability or the negligence of any party or parties, whether such negligence be sole, joint or concurrent, active or passive.
|
|
(f) |
Consequential Damages
. Neither Party shall be
liable to the other Party for any consequential or special damages, arising out of, resulting from or relating in any way to this Charter, irrespective of the negligence or fault of any party.
|
|
(g) |
For the purposes of this Section 18, an “
Indemnified
Tax
” means all Taxes, regardless of how or when such Taxes are imposed, incurred or asserted (whether imposed on, incurred by or asserted against the Vessel or the Owner or the Charterer or otherwise) arising out of, in
connection with or otherwise relating to the Vessel or this Charter or any of the transactions contemplated in or done pursuant to this Charter (including the Owner’s chartering of the Vessel from the Head Owner, and chartering of
the Vessel during the term of this Charter), provided that the Charterer shall have no obligation under this Section 18 to indemnify a Tax Indemnitee for the following Taxes (“
Excluded Taxes
”):
|
19. |
Income Tax
|
20. |
Law and Jurisdiction
|
|
(a) |
Governing Law
. This Charter is governed by and
interpreted in accordance with the general maritime laws of the United States and, to the extent they are not applicable, the internal laws of the State of New York (without regard to New York’s conflict of laws provisions).
|
|
(b) |
Venue
. All judicial actions by any Party to
enforce any provision of this Charter shall, if requested by the Owner, be brought in the United States District Court for the Southern District of New York or the state court of general jurisdiction sitting in the County of New
York in the State of New York. Each Party consents to the jurisdiction of such courts and hereby irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non-conveniens, which
it may now or hereafter have to the bringing of any such action or proceedings in such court.
|
|
(c) |
JURY TRIAL WAIVER
. EACH PARTY HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO TRIAL BY JURY TO EVERY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS CHARTER.
|
|
(d) |
Service of Process
. Service of process may be
made on the Charterer or the Guarantor by mailing or delivering a copy of such process to the Charterer c/o the Guarantor at the Guarantor’s address listed below (with a copy to the Charterer at its address identified in or in
accordance with Section 16), or to any new address of the Guarantor of which the Owner has been notified by the Charterer. The Charterer hereby irrevocably authorises and directs the Guarantor to accept such service on its behalf at
such address. As an alternative method of service, the Charterer also irrevocably consents to the service of any and all process, postage prepaid, in any such action or proceeding by mailing a copy of such process to the Guarantor
with a copy to the Charterer at its address identified in or in accordance with Section 16.
|
Address:
|
Top Ships Inc.
1. Vass. Sofias, Marousi 15124 Greece |
|
Attention:
|
Alexandros Tsirikos
|
|
Tel. No:
|
0030 210 8128180
|
|
E-Mail:
|
atsirikos@topships.org
|
21. |
Salvage
.
|
22. |
War
.
|
|
(a) |
For the purpose of this Charter, the words “War Risks” shall include any war (whether actual or threatened), act of war, civil war, hostilities,
revolution, rebellion, civil commotion, warlike operations, the laying of mines (whether actual or reported), acts of piracy, acts of terrorists, acts of hostility or malicious damage, blockades (whether imposed against all vessels
or imposed selectively against vessels of certain flags or ownership, or against certain cargoes or crews or otherwise howsoever), by any person, body, terrorist, pirate or political group, or the government of any state whatsoever,
which may be dangerous or are likely to be or to become dangerous to the Vessel, her cargo, crew or other persons on board the Vessel.
|
|
(b) |
The Charterer shall have the liberty:
|
23. |
Assignment of Insurances
.
|
|
(a) |
Collateral
. In order to secure all obligations
of the Charterer owing to the Owner under this Charter, the Charterer hereby assigns to the Head Owner with first priority and to the Owner with second priority, all of the Charterer’s right, title and interest in and to all
policies and contracts of insurance, including, without limitation, all entries in any protection and indemnity or war risks association or club, which are from time to time taken out in respect of the Vessel, her hull, machinery,
freight, disbursements, profits or otherwise, and all the benefits thereof, including, without limitation, all claims of whatsoever nature arising under such policies, as well as all amounts due from underwriters under any such
insurance whether as payment of losses, or as return premiums, or otherwise (collectively, the “Insurances”), and any proceeds of any of the foregoing. No later than the Delivery Date the Charterer shall give each underwriter notice
of the assignment of insurances contained herein in the form and terms attached as Exhibit B to this Charter (or in such other form and terms as the Owner may reasonably require) and procure that the loss payable clauses as attached
to Exhibit B to this Charter (or loss payable clauses otherwise in a form and terms satisfactory to the Owner and the Head Owner) shall have been duly endorsed on the insurances.
|
|
(b) |
No Obligation to Perform
. The Charterer hereby
agrees and covenants that, notwithstanding the provisions of this Section 23, neither the Owner nor the Head Owner shall have any of the Charterer’s obligations under any Insurances.
|
24. |
Change of Ownership
.
|
25. |
Waiver
. No waiver by either Party of any breach
by the other of any obligation, agreement or covenant hereunder shall be deemed to be a waiver of that or any subsequent breach of the same or any other covenant, agreement or obligation nor shall any forbearance by any Party to
seek a remedy for any breach by the other Party
|
26. |
No Remedy Exclusive
. Each and every right,
power and remedy given to the Owner in this Charter shall be cumulative and in addition to every other right, power and remedy herein or therein given now or hereafter existing at law, in equity, in admiralty, by statute or
otherwise. Each and every right, power and remedy whether given therein or otherwise existing may be exercised from time to time as often and in such order as may be determined by the Owner, and neither the failure or delay in
exercising any power or right nor the exercise or partial exercise of any right, power or remedy shall be construed to be a waiver of or acquiescence in any default therein; nor shall the acceptance of any security or of any payment
of or on account of any loan, promissory note, advance, obligation, expense, interest or fees maturing after an Event of Default or of any payment on account of any past default shall be construed to be a waiver of any right to take
advantage of any future default or of any past default not completely cured thereby.
|
27. |
Entire Agreement; Amendment
. This Charter and
its exhibits and schedules constitute the entire agreement between the Parties relating to the subject matter of this Charter and supersedes all prior agreements and undertakings of the Parties, whether oral or written, in
connection herewith. No amendment of this Charter shall be valid unless made in writing and signed by each of the Parties and consented to by the Head Owner.
|
28. |
Counterparts
. This Charter may be executed in
one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. It is the express intent of the Parties to be bound by the exchange of signatures on this
Charter via Portable Document Format (PDF), which the Parties agree shall constitute an original writing for all legal purposes.
|
29. |
Severability
. The Owner and the Charterer agree
that with respect to any specific provision of this Charter that is held by any court or other constituted legal authority to be void or otherwise unenforceable in any particular manner, the Parties consider and permit this Charter
to be amended in such manner as may be required in order to cause said provision and all other terms of this Charter to remain binding and enforceable against the Owner and the Charterer.
|
30. |
Captions
. The captions in this Charter are for
convenience and reference only and shall not define or limit any of the terms or provisions, or otherwise affect the construction, of this Charter.
|
31. |
Binding Effect
. Subject to Section 14, this
Charter shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assigns.
|
32. |
Interpretation
. References to “Sections” in
this Charter are sections of this Charter. The words “include(s)” and “including” shall be construed as being followed by the words “without limitation”.
|
OWNER
|
||
CARGILL INTERNATIONAL SA
|
||
By:
|
||
Name:
|
||
Title:
|
||
CHARTERER
|
||
PCH DREAMING INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
Basic Charter Hire
|
US$8,600 per day
|
Payment Number
|
Payment Date / Relevant Purchase Price Date
|
Loss Value $
|
Loss Value as a % of Original Vessel Cost
|
Purchase Price $
|
Profit Share Price $
|
0
|
36,000,000
|
||||
1
|
35,825,000
|
||||
2
|
35,650,000
|
||||
3
|
35,475,000
|
||||
4
|
35,300,000
|
||||
5
|
35,125,000
|
||||
6
|
34,950,000
|
||||
7
|
34,775,000
|
||||
8
|
34,600,000
|
||||
9
|
34,425,000
|
||||
10
|
34,250,000
|
||||
11
|
34,075,000
|
||||
12
|
33,900,000
|
||||
13
|
33,725,000
|
||||
14
|
33,550,000
|
||||
15
|
33,375,000
|
||||
16
|
33,200,000
|
||||
17
|
33,025,000
|
||||
18
|
32,850,000
|
||||
19
|
32,675,000
|
||||
20
|
32,500,000
|
||||
21
|
32,325,000
|
||||
22
|
32,150,000
|
||||
23
|
31,975,000
|
||||
24
|
31,800,000
|
||||
25
|
31,625,000
|
||||
26
|
31,450,000
|
||||
27
|
31,275,000
|
||||
28
|
31,100,000
|
||||
29
|
30,925,000
|
||||
30
|
30,750,000
|
||||
31
|
30,575,000
|
||||
32
|
30,400,000
|
||||
33
|
30,225,000
|
||||
34
|
30,050,000
|
||||
35
|
29,875,000
|
36
|
29,700,000
|
||||
37
|
29,525,000
|
||||
38
|
29,350,000
|
||||
39
|
29,175,000
|
||||
40
|
29,000,000
|
||||
41
|
28,825,000
|
||||
42
|
28,650,000
|
||||
43
|
28,475,000
|
||||
44
|
28,300,000
|
||||
45
|
28,125,000
|
||||
46
|
27,950,000
|
||||
47
|
27,775,000
|
||||
48
|
27,600,000
|
||||
49
|
27,425,000
|
||||
50
|
27,250,000
|
||||
51
|
27,075,000
|
||||
52
|
26,900,000
|
||||
53
|
26,725,000
|
||||
54
|
26,550,000
|
||||
55
|
26,375,000
|
||||
56
|
26,200,000
|
||||
57
|
26,025,000
|
||||
58
|
25,850,000
|
||||
59
|
25,675,000
|
||||
60
|
25,500,000
|
PCH DREAMING INC.
|
CARGILL INTERNATIONAL SA
|
|||
By:
|
By:
|
|||
Name:
|
Name:
|
|||
Title:
|
Title:
|
|
(A) |
Until CFT INVESTMENTS 1 LLC (together with its successors and assigns, the “Owner”) shall have notified underwriters
to the contrary,
|
|
(1) |
Except as provided in subsection (2) of this Clause (A), any claim under the insurance policy in respect of the M/T
“ECO MARINA DEL REY” (Hull No. 8242) with IMO No. 9798349 (the “
Vessel
”) (other than in respect of a total loss), up to and including
the amount of United States Dollars Five Hundred Thousand (US$500,000) shall be paid:
|
|
i. |
directly for the repair, salvage or other charges involved; or
|
|
ii. |
if Cargill International SA (the “
Charterer
”)
shall have first fully repaired the damage or paid all of the salvage or other charges, to the Charterer as reimbursement therefor as its interests may appear; or
|
|
iii. |
if PCH Dreaming Inc. (the “
Sub-Charterer
”)
shall have first fully repaired the damage or paid all of the salvage or other charges, to the Sub-Charterer as reimbursement therefor as its interests may appear,
|
|
(2) |
Any claim in respect of a total loss, and any claim of any nature (whether on account of the loss of or damage to the
Vessel, on account of return premiums, or otherwise) in excess of United States Dollars Five Hundred Thousand (US$500,000) or during the continuance of an Event of Default:
|
|
i. |
by the Charterer under the bareboat charter agreement (between the Owner and the Charterer) with respect to the
Vessel (notice of which Event of Default shall be provided by the Owner to the insurers); and/or
|
|
ii. |
by the Sub-Charterer under the sub-bareboat charter agreement (between the Charterer and the Sub- Charterer) with respect to the Vessel (notice of
which Event of Default shall be provided by the Owner and/or the Charterer to the insurers),
|
|
(B) |
The underwriters agree to advise the Owner and the Charterer:
|
|
(1) |
If any insurer cancels or gives notice of cancellation of any insurance (other than war risks) or entry at least
fourteen (14) days before such cancellation is
|
|
(2) |
Of any material change in the terms and conditions of the aforesaid insurance policies or non-renewal at least fourteen (14) days before such
change or non-renewal is to take effect.
|
Beneficiary:
|
PCH DREAMING INC.
|
Beneficiary Bank:
|
ALPHA BANK A.E.
|
Full address of Beneficiary Bank:
|
AKTI MIAOULI 93, 185 38 PIRAEUS
|
SWIFT Code:
|
CRBAGRAAXXX
|
CORRESPONDENT BANK:
|
CITIBANK N.A.
|
Full address of correspondent bank:
|
NEW YORK, 399 Park Avenue, New York N.Y.
10022 U.S.A.
|
SWIFT Code of Correspondent Bank;
|
CITIUS33XXX
|
IBAN:
|
GR38 0140 9600 9600 1500 6030 697
|
Payment reference:
|
HULL NO. 8242 – IMO 9798349
|
Subsidiaries as of March [26], 2019
|
Country of Incorporation
|
Top Ships Inc.
|
Marshall Islands
|
Top Tanker Management Inc.
|
Marshall Islands
|
Mytikas Shipping Company Limited
|
Marshall Islands
|
Lyndon International Co
|
Marshall Islands
|
Monte Carlo One Shipping Company Limited
|
Marshall Islands
|
Monte Carlo Seven Shipping Company Limited
|
Marshall Islands
|
Monte Carlo 37 Shipping Company Limited
|
Marshall Islands
|
Monte Carlo 39 Shipping Company Limited
|
Marshall Islands
|
Monte Carlo LAX Shipping Company Limited
|
Marshall Islands
|
Monte Carlo 71 Shipping Company Limited
|
Marshall Islands
|
Gramos Shipping Company Inc.
|
Marshall Islands
|
Style Maritime Ltd.
|
Marshall Islands
|
Jasmin Finance Limited
|
Marshall Islands
|
Astarte International Inc.
|
Marshall Islands
|
PCH77 Shipping Company Limited
|
Marshall Islands
|
Eco Seven Inc.
|
Marshall Islands
|
PCH Dreaming Inc.
|
Marshall Islands
|
South California Inc.
|
Marshall Islands
|
Malibu Warrior Inc.
|
Marshall Islands
|