UNITED MARITIME CORPORATION (the “Corporation”)
AMENDED AND RESTATED BYLAWS
As Adopted [●], 2022
1.1. Registered Office. The registered office of the Corporation in the Republic of the Marshall Islands shall be established and maintained at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Marshall Islands MH 96960 and The Trust Company of the Marshall Islands, Inc. shall be the registered agent of the corporation in charge thereof.
1.2. Other Offices. The Corporation may also have offices at such other places both within and without the Marshall Islands as the board of directors of the Corporation (the “Board of
Directors”) may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1. Place of Meetings. All meetings of the stockholders shall be held at such time and place, either within or without the Marshall Islands, as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
2.2. Annual Meetings. The annual meeting of stockholders shall be held on such date and at such time as may be fixed by the Board of Directors and stated in the notice of the meeting,
for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these Bylaws (the “Bylaws”).
Written notice of an annual meeting stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than fifteen (15) nor more than sixty
(60) days before the date of the annual meeting.
To be properly brought before the annual meeting, business must be either (i) specified in the notice of annual meeting (or any supplement or amendment thereto) given by or at the direction of the
Board of Directors, (ii) otherwise brought before the annual meeting by or at the direction of the Board of Directors, or (iii) otherwise properly brought before the annual meeting by a stockholder. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation (the “Secretary”). To be timely, a stockholder’s notice to the Secretary
must be delivered to or mailed and received at the principal executive offices of the Corporation not less than one-hundred fifty (150) days nor more than one-hundred eighty (180) days prior to the one-year anniversary of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is more than thirty (30) days after such anniversary date, notice by a stockholder, to be timely, must be so received not later than
the close of business on the tenth (10
th) day following the day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual
meeting was made, whichever first occurs.
In no event shall the public disclosure of any adjournment of an annual meeting of the stockholders commence a new time period for the giving of the stockholder’s notice described
herein.
To be in proper written form, a stockholder’s notice to the Secretary shall set forth (a) as to each matter the stockholder proposes to bring before the annual meeting (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, and (ii) any material interest of the stockholder in such business, and (b) as to the stockholder giving the notice (i) the
name and record address of the stockholder and (ii) the class, series and number of shares of capital stock of the Corporation which are beneficially owned by the stockholder. Notwithstanding anything in these Bylaws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set forth in this Article II, Section 2. The officer of the Corporation presiding at an annual meeting shall, if the facts warrant, determine and declare to the annual meeting
that business was not properly brought before the annual meeting in accordance with the provisions of the Article II, Section 2, and if such officer should so determine, such officer shall so declare to the annual meeting and any such business not
properly brought before the meeting shall not be transacted.
2.3.
Special Meetings. Special meetings of stockholders, unless otherwise prescribed by statute or by the Articles of Incorporation of the Corporation
(the
“Articles of Incorporation”), may be called for any purpose or purposes at any time by the Chairman of the Board of Directors, a majority of the entire Board of Directors, or the Chief Executive Officer. No other person or persons are permitted to call
a special meeting of stockholders, unless otherwise prescribed by law. No business may be conducted at a special meeting of stockholders other than business brought before the meeting by the Chairman of the Board of Directors, a majority of the entire
Board of Directors, or the Chief Executive Officer.
Unless otherwise provided by law, written notice of a special meeting of stockholders, stating the time, place and purpose or purposes thereof, shall be given to each stockholder entitled to vote at
such meeting, not less than fifteen (15) or more than sixty (60) days before the date fixed for the meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
2.4. Quorum. One-third of the shares of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Articles of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the holders
of a majority of the votes entitled to be cast by the stockholders entitled to vote thereat and present in person or represented by proxy shall have power to adjourn the meeting from time to time until a quorum shall be present or represented.
2.5. Organization. The Chairman of the Board of Directors shall act as chairman of meetings of the stockholders. The Board of Directors may designate any other officer or director of
the Corporation to act as chairman of any meeting in the absence of the Chairman of the Board of Directors, and the Board of Directors may further provide for determining who shall act as chairman of any stockholders meeting in the absence of the
Chairman of the Board of Directors and such designee.
The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but in the absence of the Secretary the presiding officer may appoint any other person to act as secretary
of any meeting.
2.6. Voting. Unless otherwise required by law, the Articles of Incorporation or these Bylaws, any question (other than the election of directors) brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat. At all meetings of stockholders for the election of directors, a plurality of the votes cast shall be sufficient to elect.
Each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder, unless otherwise provided by the Articles of Incorporation. Each
stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize any person or persons to act for him by proxy. All proxies shall be executed in writing and shall
be filed with the Secretary of the Corporation not later than the day on which exercised. No proxy shall be voted or acted upon after eleven (11) months from its date, unless the proxy provides for a longer period. The Board of Directors, in its
discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
2.7. Action of Stockholders Without Meeting. Unless otherwise provided by the Articles of Incorporation, any action required to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed
by all stockholders entitled to vote with respect to the subject matter thereof and shall be delivered to the Corporation by delivery to its registered office in the Marshall Islands, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
2.8. Voting List. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list
of the stockholders entitled to vote at the meeting, arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the election, either at a place within the city, town or village where the election is to be held, which place shall be
specified in the notice of the meeting, or, if not specified, at the place where said meeting is to be held. The list shall be produced and kept at the time and place of election during the whole time thereof, and may be inspected by any stockholder of
the Corporation who is present.
2.9. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 8 of
this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
2.10. Adjournment. Any meeting of the stockholders, including one at which directors are to be elected, may be adjourned for such periods as the presiding officer of the meeting or the
stockholders present in person or by proxy and entitled to vote shall direct.
2.11. Ratification. Any transaction questioned in any stockholders’ derivative suit, or any other suit to enforce alleged rights of the Corporation or any of its stockholders, on the
ground of lack of authority, defective or irregular execution, adverse interest of any director, officer or stockholder, nondisclosure, miscomputation or the application of improper principles or practices of accounting may be approved, ratified and
confirmed before or after judgment by the Board of Directors or by the holders of Common Stock and, if so approved, ratified or confirmed, shall have the same force and effect as if the questioned transaction had been originally duly authorized, and
said approval, ratification or confirmation shall be binding upon the Corporation and all of its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.
2.12. Judges. All votes by ballot at any meeting of stockholders shall be conducted by two judges appointed for the purpose either by the directors or by the meeting. The judges shall
decide upon the qualifications of voters, count the votes and declare the result.
3.1. Powers; Number; Qualifications. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise
provided by law or in the Articles of Incorporation. The number of directors which shall constitute the Board of Directors shall be not less than one (1) nor more than thirteen (13). The exact number of directors shall be fixed from time to time,
within the limits specified in this Article III Section 1 or in the Articles of Incorporation, by the Board of Directors or as otherwise provided by law. Directors need not be stockholders of the Corporation. The Board may be divided into Classes as
more fully described in the Articles of Incorporation.
3.2. Election; Term of Office; Resignation; Removal; Vacancies; Each director shall hold office until the next annual meeting of stockholders at which his Class stands for election
or until such director’s earlier resignation, removal from office, death or incapacity. Unless otherwise provided in the Articles of Incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of
directors or from any other cause may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director and each director so chosen shall hold office until the next annual meeting and until such
director’s successor shall be duly elected and shall qualify, or until such director’s earlier resignation, removal from office, death or incapacity.
3.3. Nominations. Nominations of persons for election to the Board of Directors of the Corporation at a meeting of stockholders of the Corporation may be made at such meeting by or at
the direction of the Board of Directors, by any committee or persons appointed by the Board of Directors or by any stockholder of the Corporation entitled to vote for the election of directors at the meeting who complies with the notice procedures set
forth in this Article III, Section 3. Such nominations by any stockholder shall be made pursuant to timely notice in writing to the Secretary of the Corporation.
To be timely, a stockholder’s notice to the Secretary shall be delivered to or mailed and received at the principal executive offices of the Corporation not less than one-hundred fifty (150) days nor
more than one-hundred eighty (180) days prior to the one-year anniversary date of the immediately preceding annual meeting of stockholders; provided however, that in the event that the annual meeting is called for a date that is more than thirty (30)
days after such anniversary date, notice by the stockholder, to be timely, must be so received not later than the close of business on the tenth (10th) day following the
day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first occurs. In no event shall the public disclosure of any adjournment of an annual meeting of the
stockholders commence a new time period for the giving of the stockholder’s notice described herein.
To be in proper written form, a stockholder’s notice to the Secretary shall set forth (i) as to each person whom the stockholder proposes to nominate for election or reelection as a director, (a) the name, age, business address and residence address
of the person, (b) the principal occupation or employment of the person, (c) the class and number of shares of capital stock of the Corporation which are beneficially owned by the person, and (d) any other information relating to the person that is
required to be disclosed in solicitations for proxies for election of directors pursuant to the Rules and Regulations of the Securities and Exchange Commission under Section 14 of the Securities Exchange Act of 1934, as amended, and (ii) as to the
stockholder giving the notice (a) the name and record address of the stockholder and (b) the class and number of shares of capital stock of the Corporation which are beneficially owned by the stockholder. The Corporation may require any proposed
nominee to furnish such information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein. The officer of the Corporation presiding at an annual meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding any other provisions of the Articles of Incorporation or these Bylaws (and notwithstanding the fact that some lesser percentage may be specified by law, the Articles of Incorporation or
these Bylaws), the vote of not less than two-thirds of the entire Board of Directors shall be required to amend, alter, change or repeal this Article III, Section 3.
3.4. Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the Marshall Islands. The first
meeting of each newly elected Board of Directors shall be held immediately after and at the same place as the meeting of the stockholders at which it is elected and no notice of such meeting shall be necessary to newly elected directors in order
legally to constitute the meeting, provided a quorum shall be present. Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time to time be determined by the Board of Directors. Special meetings
of the Board of Directors may be called by the Chairman of the Board of Directors, the Chief Executive Officer or a majority of the entire Board of Directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, email, facsimile or telegram on twenty-four (24) hours notice, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
3.5. Quorum. Except as may be otherwise specifically provided by law, the Articles of Incorporation or these Bylaws, at all meetings of the Board of Directors
or any committee thereof, a majority of the entire Board of Directors or such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is
a quorum shall be the act of the Board of Directors provided that the act of at least eighty per cent (80%) of the entire Board of Directors shall be required for (i) the establishment, dissolution or alteration of duties or composition under Section
3.10 of this Article III of any committee of the Board of Directors empowered to manage the ocean going shipping business and affairs of the Corporation, including without limitation the power to approve the acquisition and sale of vessels and of
shares in vessel owning entities (but excluding sales of all or substantially all of the Corporation’s property and assets) and debt financing related thereto and (ii) the amendment of this Section of these Bylaws. If a quorum shall not be present at
any meeting of the Board of Directors or of any committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
3.6. Organization of Meetings. The Board of Directors shall elect one of its members to be Chairman of the Board of Directors. The Chairman of the Board of
Directors shall lead the Board of Directors in fulfilling its responsibilities as set forth in these By-Laws, including its responsibility to oversee the performance of the Corporation, and shall determine the agenda and perform all other duties and
exercise all other powers which are or from time to time may be delegated to him or her by the Board of Directors.
Meetings of the Board of Directors shall be presided over by the Chairman of the Board of Directors, or in his or her absence, by the Chief Executive officer, or in the absence
of the Chairman of the Board of Directors and the Chief Executive Officer by such other person as the Board of Directors may designate or the members present may select.
3.7. Actions of Board of Directors Without Meeting. Unless otherwise restricted by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing, and the writing
or writings are filled with the minutes of proceedings of the Board of Directors or committee.
3.8. Removal of Directors by Stockholders. The entire Board of Directors or any individual Director may be removed, with cause, by a majority vote of the holders
of the outstanding shares then entitled to vote at an election of directors. No Director may be removed without cause by either the stockholders or the Board of Directors. Except as otherwise provided by applicable law, cause for the removal of a
Director shall be deemed to exist only if the Director whose removal is proposed: (i) has been convicted, or has been granted immunity to testify in any proceeding in which another has been convicted, of a felony by a court of competent jurisdiction
and that conviction is no longer subject to direct appeal; (ii) has been found to have been negligent or guilty of misconduct in the performance of his duties to the Corporation in any matter of substantial importance to the Corporation by (A) the
affirmative vote of at least 80% of the directors then in office at any meeting of the Board of Directors called for that purpose or (B) a court of competent jurisdiction; or (iii) has been adjudicated by a court of competent jurisdiction to be
mentally incompetent, which mental incompetence directly affects his ability to serve as a director of the Corporation.
No proposal by a stockholder to remove a Director shall be voted upon at a meeting of the stockholders unless such stockholder has given timely notice thereof in proper written
form to the Secretary. To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than one hundred fifty (150) days nor more than one hundred
eighty (180) days prior to the one-year anniversary date of the immediately preceding annual meeting of the stockholders. To be in proper written form, a stockholder’s notice must set forth: (a) a statement of the grounds, if any, on which such
Director is proposed to be removed, (b) evidence reasonably satisfactory to the Secretary of such stockholder’s status as such and of the number of shares of each class of capital stock of the Corporation beneficially owned by such stockholder, and
(c) a list of the names and addresses of other stockholders of the Corporation, if any, with whom such stockholder is acting in concert, and the number of shares of each class of capital stock of the Corporation beneficially owned by each such
stockholder.
No stockholder proposal to remove a Director shall be voted upon at an annual meeting of the stockholders unless proposed in accordance with the procedures set forth in this
Article III, Section 8. If the officer of the Corporation presiding at an annual meeting determines, based on the facts, that a stockholder proposal to remove a Director was not made in accordance with the foregoing procedures, such presiding
officer shall declare to the meeting that a proposal to remove a Director of the Corporation was not made in accordance with the procedures prescribed by these Bylaws, and such defective proposal shall be disregarded.
In case the Board of Directors or any one or more Directors be so removed, new Directors may be elected at the same time for the unexpired portion of the full term of the
Director or Directors so removed. All of the foregoing provisions of this Article III, Section 8 are subject to the terms of any preferred stock with respect to the directors to be elected solely by the holders of such preferred stock.
3.9. Resignations. Any Director may resign at any time by submitting his written resignation to the Board of Directors or Secretary of the Corporation. Such
resignation shall take effect at the time of its receipt by the Corporation unless another time be fixed in the resignation, in which case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make
it effective.
3.10. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. In
the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified member; provided that in the case of disqualification of a member of a committee empowered to manage the ocean going shipping business and affairs of the Corporation,
then the matter shall be referred to the entire Board of Directors. Any such committee, to the extent provided by law and in the resolution of the Board of Directors establishing such committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or
authority in reference to amending the Articles of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all the Corporation’s property and assets,
recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution or amending the Bylaws of the Corporation; and, unless the resolution expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
3.11. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed amount (in
cash or other form of consideration) for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation
thereof. Members of special or standing committees may be allowed like compensation for attending committee meetings.
3.12. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if (i) the material facts
as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by a
vote sufficient for such purpose without counting the vote of the interested director, or, if the votes of the disinterested directors are insufficient to constitute an act of the Board of Directors, by the unanimous affirmative vote of the
disinterested directors; or (ii) the material facts as to his or their relationship or interest in such contract or transaction are disclosed in good faith or known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors or a committee thereof or the
stockholders. Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
3.13. Meetings by Means of Conference Telephone. Members of the Board of Directors or any committee designed by the Board of Directors may participate in a
meeting of the Board of Directors or of a committee of the Board of Directors by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this subsection shall constitute presence in person at such meeting.
4.1. General. The officers of the Corporation shall be elected by the Board of Directors and may consist of: a Chairman of the Board, Chief Executive Officer, President, Secretary
and Treasurer. The Board of Directors, in its discretion, may also elect one or more Vice Presidents (including Executive Vice Presidents and Senior Vice Presidents), Assistant Secretaries, Assistant Treasurers, a Controller and such other officers
as in the judgment of the Board of Directors may be necessary or desirable. Any number of offices may be held by the same person and more than one person may hold the same office, unless otherwise prohibited by law, the Articles of Incorporation or
these Bylaws. The officers of the Corporation need not be stockholders of the Corporation, nor need such officers be directors of the Corporation.
4.2. Election. The Board of Directors at its first meeting held after each annual meeting of stockholders shall elect the officers of the Corporation who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until
their earlier resignation or removal. Except as otherwise provided in this Article IV, any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in
any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers who are directors of the Corporation shall be filled by the Board of Directors.
4.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, and any such officer may, in the name and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and
which, as the owner thereof, the Corporation might have exercised and possessed if present; provided however, the act of at least eighty percent (80%) of the entire Board of Directors shall be required to modify the rights granted to the
Corporation’s Chief Executive Officer under this Section 4.3 or to amend this Section 4.3.
4.4. Chief Executive Officer. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, the Chief Executive Officer shall have ultimate authority
for decisions relating to the general management and control of the affairs and business of the Corporation and shall perform such other duties and exercise such other powers which are or from time to time may be delegated to him or her by the Board
of Directors or these Bylaws, all in accordance with basic policies as established by and subject to the oversight of the Board of Directors.
4.5. Vice Presidents. At the request of the Chief Executive Officer or in the absence of the Chief Executive Officer, or in the event of his or her inability or refusal to act,
the Vice President or the Vice Presidents if there is more than one (in the order designated by the Board of Directors) shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all
the restrictions upon such office. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Vice President, the Board of Directors shall designate the
officer of the Corporation who, in the absence of the Chief Executive Officer or in the event of the inability or refusal of such officer to act, shall perform the duties of such office, and when so acting, shall have all the powers of and be subject
to all the restrictions upon such office.
4.6. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings thereat in a book or books to
be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer, under whose supervision the Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of Directors, then any Assistant Secretary shall perform such actions. If there be no Assistant Secretary, then the Board of Directors or the Chief Executive Officer may
choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to
attest the affixing by this signature. The Secretary shall see that all books, reports, statements, certificates and other documents and record required by law to be kept or filed are properly kept or filed, as the case may be.
4.7. Treasurer. The Treasurer shall have the custody of the corporate funds and securities, and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer and the Board of Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Boards of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the Corporation.
4.8. Assistant Secretaries. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors, the Chief Executive Officer, any vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
4.9. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of
Directors, the Chief Executive Officer, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the Corporation.
4.10. Controller. The Controller shall establish and maintain the accounting records of the Corporation in accordance with generally accepted accounting principles applied on a
consistent basis, maintain proper internal control of the assets of the Corporation and shall perform such other duties as the Board of Directors, the Chief Executive Officer or any Vice President of the Corporation may prescribe.
4.11. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
4.12. Vacancies. The Board of Directors shall have the power to fill any vacancies in any office occurring from whatever reason.
4.13. Resignations. Any officer may resign at any time by submitting his written resignation to the Corporation. Such resignation shall take effect at the time of its receipt by
the Corporation, unless another time be fixed in the resignation, in which case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make it effective.
4.14. Removal. Subject to the provisions of any employment agreement approved by the Board of Directors, any officer of the Corporation may be removed at any time, with or without
cause, by the Board of Directors.
5.1. Form of Certificates. Shares of stock of the Corporation may be certified or uncertified, as provided under applicable law. All certificates shall be numbered and shall be
entered into the book of the Corporation as they are issued. A certificate shall exhibit the holder’s name and number of shares and shall be signed, in the name of the Corporation (i) be the Chief Executive Officer or the President, and (ii) by the
Treasurer or the Secretary of the Corporation, certifying the number of shares owned by him in the Corporation. These signatures may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
5.2. Signatures. In case an officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
5.3. Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates therefore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of
Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall
require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
5.4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation
only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefore, which shall be canceled before a new certificate shall be issued. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate of shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transactions upon its books, unless the Corporation has a duty to inquire as to adverse claims with respect to such transfer which has not been discharged. The Corporation shall have no duty
to inquire into adverse claims with respect to such transfer unless (a) the Corporation has received written notification of an adverse claim at a time and in a manner which affords the Corporation a reasonable opportunity to act on it prior to the
issuance of a new, reissued or re-registered share certificate and the notification identifies the claimant, the registered owner and the issue of which the share or shares is a part and provides an address for communications directed to the claimant;
or (b) the Corporation has required and obtained, with respect to a fiduciary, a copy of a will, trust, indenture, articles of co-partnership, Bylaws or other controlling instruments, for a purpose other than to obtain appropriate evidence of the
appointment or incumbency of the fiduciary, and such documents indicate, upon reasonable inspection, the existence of an adverse claim. The Corporation may discharge any duty of inquiry by any reasonable means, including notifying an adverse claimant
by registered or certified mail at the address furnished by him or, if there be no such address, at his address, at his residence or regular place of business that the security has been presented for registration of transfer by a named person, and that
the transfer will be registered unless within thirty days from the date of mailing the notification, either (a) an appropriate restraining order, injunction or other process issues from a court of competent jurisdiction; or (b) an indemnity bond,
sufficient in the Corporation’s judgment to protect the Corporation and any transfer agent, registrar or other agent of the Corporation involved from any loss which it or they may suffer by complying with the transfer claim, is filed with the
Corporation.
5.5. Fixing Record Date. In order that the Corporation may determine the stockholders entitled to notice or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record is adopted by the Board of Directors, and which record date
shall not be more than sixty (60) nor less than fifteen (15) days before the date of such meeting, nor more than sixty (60) days prior to any other action. If no record date is fixed :
(a) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.
(b) The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary,
shall be the first date on which a signed written consent is delivered to the Corporation.
(c) The record date for determining stockholders foe any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
5.6. Registered Stockholders. Prior to due presentment for transfer of any share or shares, the Corporation shall treat the registered owner thereof as the person exclusively
entitled to vote, to receive notifications and to all other benefits of ownership with respect to such share or shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, expect as otherwise provided by the laws of the Marshall Islands.
6.1. Form of Notice. Notices to directors and stockholders other than notices to directors of special meetings of the Board of Directors which may be given by any means stated in
Article III, Section 4, shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall
be mailed. Notice to directors may also be given by telegram.
6.2. Waiver of Notice. Whenever at notice is required to be given under the provisions of law or the Articles of Incorporation or by these Bylaws of the Corporation, a written
waiver, signed by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose
of, any regular, or special meeting of the stockholders, Directors, or members of a committee of Directors need be specified in any written waiver of notice unless so required by the Articles of Incorporation.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
7.1. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or nor opposed to the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or nor opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
7.2. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other enterprise against expenses ( including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the Corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
7.3. To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of nay action, suit or proceeding referred to
in Section 1 or 2 of this Article, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.
7.4. Any indemnification under the sections 1 or 2 of this Article (unless ordered by a court) shall be made by the Corporation only as authorizes in the specific case upon a
determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in such section. Such determination shall be made :
(a) By the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceedings, or
(b) If such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or
7.5. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by
the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Section. Such expenses (including attorneys’ fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.
7.6. The indemnification and advancement of expenses provided by, or granted pursuant to the other sections of this Article shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expense may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while
holding such office.
7.7. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article.
7.8. For purposes of this Article, references to “the Corporation” shall include, in addition to the resulting Corporation, any consistent Corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer
employee or agent of such constituent Corporation, or is or was serving at the request of such constituent Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under this Article with respect to the resulting or surviving Corporation as he would have with respect to such constituent Corporation if its separate existence had continued.
7.9. For purposes of this Article, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article.
7.10. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
7.11. No director or officer of the Corporation shall be personally liable to the Corporation or to any stockholder of the Corporation for monetary damages for breach of fiduciary duty as
a director or officer, provided that this provision shall not limit the liability of a director or officer (i) for any breach of the director’s or the officer’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 28 (m) of the Business Corporations Act of Marshall Islands, or (iv) for any transaction from which the director or officer derived an improper
personal benefit.
7.12. Any repeal or modification of this Article shall not adversely affect any rights to indemnification and to the advancement of expenses of a Director or officer of the Corporation
existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
ARTICLE VIII
GENERAL PROVISIONS
8.1. Reliance on Books and Records. Each Director, each member of any committee designated by the Board of Directors, and each officer of the Corporation, shall, in the performance
of his duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation, including reports made to the Corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
8.2. Dividends. Subject to the provisions of the Articles of Incorporation, if any, dividends upon the capital stock of the Corporation may be declared by the Board of Directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Articles of Incorporation. Before payment of any dividend, there mat be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created.
8.3. Annual Statement. The Board of Directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full
and clear statement of the business and condition of the Corporation.
8.4. Checks. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other persons as the Board of Directors may from time to
time designate.
8.5. Fiscal Year. The fiscal year of the Corporation shall be as determined by the Board of Directors. If the Board of Directors shall fail to do so, the Chief Executive Officer
shall fix the fiscal year.
8.6. Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Marshall Islands”. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced.
8.7. Amendments. The original or other Bylaws may be adopted, amended or repealed as provided in the Articles of Incorporation.
8.8. Interpretation of Bylaws. All words, terms and provisions of these Bylaws shall be interpreted and defined by and in accordance with the General Corporation Law of the Marshall
Islands, as amended, and as amended from time to time hereafter.
18
Exhibit 4.2
UNITED MARITIME CORPORATION
2022 EQUITY INCENTIVE PLAN
ADOPTED ON [●], 2022
ARTICLE I.
General
1.1. Purpose
The United Maritime Corporation 2022 Equity Incentive Plan (the “Plan”) is designed to provide certain Key Persons (as defined below), whose initiative and efforts are deemed to be
important to the successful conduct of the business of United Maritime Corporation (the “Company”), with incentives to (a) enter into and remain in the service of the Company or its Affiliates (as defined below), (b) acquire a proprietary interest in
the success of the Company, (c) maximize their performance and (d) enhance the long-term performance of the Company.
1.2. Administration
(a) Administration. The Plan shall be administered by the Compensation Committee of the Company’s Board of Directors (the “Board”) or such other committee of the
Board as may be designated by the Board to administer the Plan (the “Administrator”); provided that (i) in the event the Company is subject to Section 16 of the U.S. Securities Exchange Act of 1934, as amended (the “1934 Act”), the
Administrator shall be composed of two or more directors, each of whom is a “Non-Employee Director” (a “Non-Employee Director”) under Rule 16b-3 (as promulgated and interpreted by the Securities and Exchange Commission (the “SEC”) under the 1934 Act,
or any successor rule or regulation thereto as in effect from time to time (“Rule 16b-3”)), and (ii) the Administrator shall be composed solely of two or more directors who are “independent directors” under the rules of any stock exchange on which
the Company’s Common Stock (as defined below) is traded; provided further, however, that, (A) the requirement in the preceding clause (i) shall apply only when required to exempt an Award intended to qualify for an exemption
under the applicable provisions referenced therein, (B) the requirement in the preceding clause (ii) shall apply only when required pursuant to the applicable rules of the applicable stock exchange and (C) if at any time the Administrator is not so
composed as required by the preceding provisions of this sentence, that fact will not invalidate any grant made, or action taken, by the Administrator hereunder that otherwise satisfies the terms of the Plan. Subject to the terms of the Plan and
applicable law, and in addition to other express powers and authorizations conferred on the Administrator by the Plan, the Administrator shall have the full power and authority to: (1) designate the Persons (as defined below) to receive Awards (as
defined below) under the Plan; (2) determine the types of Awards granted to a participant under the Plan; (3) determine the number of shares to be covered by, or with respect to which payments, rights or other matters are to be calculated with
respect to, Awards; (4) determine the terms and conditions of any Awards; (5) determine whether, and to what extent, and under what circumstances, Awards may be settled or exercised in cash, shares, other securities, other Awards or other property,
or cancelled, forfeited or suspended, and the methods by which Awards may be settled, exercised, cancelled, forfeited or suspended; (6) determine whether, to what extent, and under what circumstances cash, shares, other securities, other Awards,
other property and other amounts payable with respect to an Award shall be deferred, either automatically or at the election of the holder thereof or the Administrator; (7) construe, interpret and implement the Plan and any Award Agreement (as
defined below); (8) prescribe, amend, rescind or waive rules and regulations relating to the Plan, including rules governing its operation, and appoint such agents as it shall deem appropriate for the proper administration of the Plan; (9) correct
any defect, supply any omission and reconcile any inconsistency in the Plan or any Award Agreement; and (10) make any other determination and take any other action that the Administrator deems necessary or desirable for the administration of the
Plan. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Administrator, may be made at any
time and shall be final, conclusive and binding upon all Persons.
(b) General Right of Delegation. Except to the extent prohibited by applicable law, the applicable rules of a stock exchange or any charter, by-laws or other
agreement governing the Administrator, the Administrator may delegate all or any part of its responsibilities to any Person or Persons selected by it; provided, however, that in no event shall an officer of the Company be delegated
the authority to grant Awards to, or amend Awards held by, the following individuals: (i) individuals who are subject to Section 16 of the 1934 Act, or (ii) officers of the Company (or directors of the Company) to whom authority to grant or amend
Awards has been delegated hereunder; provided, further, that any delegation of administrative authority shall only be permitted to the extent it is permissible under applicable securities laws (including, without limitation, Rule
16b-3, to the extent applicable) and the rules of any applicable stock exchange. Any delegation hereunder shall be subject to the restrictions and limits that the Administrator specifies at the time of such delegation, and the Administrator may at
any time rescind the authority so delegated or appoint a new delegate. At all times, the delegatee appointed under this Section 1.2(b) shall serve in such capacity at the pleasure of the Administrator.
(c) Indemnification. No member of the Board, the Administrator or any employee of the Company or an Affiliate (each such Person, a “Covered Person”) shall be
liable for any action taken or omitted to be taken or any determination made in good faith with respect to the Plan or any Award hereunder. Each Covered Person shall be indemnified and held harmless by the Company against and from (i) any loss,
cost, liability or expense (including attorneys’ fees) that may be imposed upon or incurred by such Covered Person in connection with or resulting from any action, suit or proceeding to which such Covered Person may be a party or in which such
Covered Person may be involved by reason of any action taken or omitted to be taken under the Plan or any Award Agreement and (ii) any and all amounts paid by such Covered Person, with the Company’s approval, in settlement thereof, or paid by such
Covered Person in satisfaction of any judgment in any such action, suit or proceeding against such Covered Person; provided that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding
and, once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Company’s choice. The foregoing right of indemnification shall not be available to a Covered Person to
the extent that a court of competent jurisdiction in a final judgment or other final adjudication, in either case not subject to further appeal, determines that the acts or omissions of such Covered Person giving rise to the indemnification claim
resulted from such Covered Person’s bad faith, fraud or willful criminal act or omission or that such right of indemnification is otherwise prohibited by law or by the Company’s articles of incorporation or by-laws (in each case, as amended and/or
restated). The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which Covered Persons may be entitled under the Company’s articles of incorporation or by-laws (in each case, as amended and/or
restated), as a matter of law, or otherwise, or any other power that the Company may have to indemnify such Persons or hold them harmless.
(d) Delegation of Authority to Senior Officers. The Administrator may, in accordance with and subject to the terms of Section 1.2(b), delegate, on such terms and
conditions as it determines, to one or more senior officers of the Company the authority to make grants of Awards to employees of the Company and its Subsidiaries (as defined below) (including any such prospective employee) and consultants of the
Company and its Subsidiaries.
(e) Award Grants. Notwithstanding anything to the contrary contained herein, the Board may, in its sole discretion, at any time and from time to time, grant Awards
to Non-Employee Directors or administer the Plan with respect to such Awards, in which event the Board shall have all the authority and responsibility granted to the Administrator herein with respect to such Awards. In determining Awards to be
granted under the Plan, the Administrator shall take into account such factors as it deem advisable, which may include taking into account the Company’s performance, the Award recipient’s performance, and/or the satisfaction of any performance goals
or targets as may established from time to time.
1.3. Persons Eligible for Awards
The Persons eligible to receive Awards under the Plan are those directors, officers and employees (including any prospective officer or employee) of the Company and its
Subsidiaries and Affiliates and consultants and service providers (including individuals who are employed by or provide services to any entity that is itself such a consultant or service provider) to the Company and its Subsidiaries and Affiliates
(collectively, “Key Persons”) as the Administrator shall select.
1.4. Types of Awards
Awards may be made under the Plan in the form of (a) “incentive stock options” that are intended to qualify for special U.S. federal income tax treatment pursuant to Sections 421
and 422 of the Code (as defined below), as may be amended from time to time, or pursuant to a successor provision of the Code, and which is so designated in the applicable Award Agreement, (b) non-qualified stock options (i.e., any stock options
granted under the Plan that are not “incentive stock options”), (c) stock appreciation rights, (d) restricted stock, (e) restricted stock units and (f) unrestricted stock, all as more fully set forth in the Plan. The term “Award” means any of the
foregoing that are granted under the Plan. No incentive stock option (other than an incentive stock option that may be assumed or issued by the Company in connection with a transaction to which Section 424(a) of the Code applies) may be granted under
the Plan to a Person who is not eligible to receive an incentive stock option under the Code.
1.5. Shares Available for Awards; Adjustments for Changes in Capitalization
(a) Maximum Number. Subject to adjustment as provided in Section 1.5(c), the aggregate number of shares of common stock of the Company, par value $0.0001 (“Common
Stock”), with respect to which Awards may at any time be granted under the Plan shall be 150,000. The following shares of Common Stock shall again become available for Awards under the Plan: (i) any shares that are subject to an Award under the Plan
and that remain unissued upon the cancellation or termination of such Award for any reason whatsoever; (ii) any shares of restricted stock forfeited pursuant to the Plan or the applicable Award Agreement; provided that any dividend equivalent
rights with respect to such shares that have not theretofore been directly remitted to the grantee are also forfeited; and (iii) any shares in respect of which an Award is settled for cash without the delivery of shares to the grantee. Any shares
tendered or withheld to satisfy the grant or exercise price or tax withholding obligation pursuant to any Award shall again become available to be delivered pursuant to Awards under the Plan.
(b) Source of Shares. Shares issued pursuant to the Plan may be authorized but unissued Common Stock or treasury shares. The Administrator may direct that any
stock certificate evidencing shares issued pursuant to the Plan shall bear a legend setting forth such restrictions on transferability as may apply to such shares.
(c) Adjustments. (i) In the event that any dividend or other distribution (whether in the form of cash, Company shares, other securities or other property), stock
split, reverse stock split, reorganization, merger, consolidation, split-up, combination, repurchase or exchange of Company shares or other securities of the Company, issuance of warrants or other rights to purchase Company shares or other securities
of the Company, or other similar corporate transaction or event, other than an Equity Restructuring (as defined below), affects the Company shares such that an adjustment is determined by the Administrator to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to an Award, then the Administrator shall, in such manner as it may deem equitable, adjust any or all of the number of shares
or other securities of the Company (or number and kind of other securities or property) with respect to which Awards may be granted under the Plan, including the maximum number of shares issuable to an individual as set forth in Section 1.5(d).
(ii) The Administrator is authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring
events (including the events described in Section 1.5(c)(i) or the occurrence of a Change in Control (as defined below), other than an Equity Restructuring) affecting the Company, any Affiliate, or the financial statements of the Company or any
Affiliate, or of changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange, accounting principles or law, whenever the Administrator determines that such adjustments are appropriate in
order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to an Award, including providing for (A) adjustment to (1) the number of shares or other securities of the
Company (or number and kind of other securities or property) subject to outstanding Awards or to which outstanding Awards relate and (2) the Exercise Price (as defined below) with respect to any Award and (B) a substitution or assumption of Awards,
accelerating the exercisability or vesting of, or lapse of restrictions on, Awards, or accelerating the termination of Awards by providing for a period of time for exercise prior to the occurrence of such event, or, if deemed appropriate or
desirable, providing for a cash payment to the holder of an outstanding Award in consideration for the cancellation of such Award (it being understood that, in such event, any option or stock appreciation right having a per share Exercise Price equal
to, or in excess of, the Fair Market Value (as defined below) of a share subject to such option or stock appreciation right may be cancelled and terminated without any payment or consideration therefor); provided, however, that with respect to options and stock appreciation rights, unless otherwise determined by the Administrator, such adjustment shall be made in accordance with the provisions of Section 424(h) of the Code.
(iii) In the event of (A) a dissolution or liquidation of the Company, (B) a sale of all or substantially all the Company’s assets or (C) a merger, reorganization or
consolidation involving the Company or one of its Subsidiaries (as defined below), the Administrator shall have the power to:
(1) provide that outstanding options, stock appreciation rights and/or restricted stock units (including any related dividend equivalent right) shall either continue in effect, be
assumed or an equivalent award shall be substituted therefor by the successor corporation or a parent corporation or subsidiary corporation;
(2) cancel, effective immediately prior to the occurrence of such event, options, stock appreciation rights and/or restricted stock units (including each dividend equivalent right
related thereto) outstanding immediately prior to such event (whether or not then exercisable) and, in full consideration of such cancellation, pay to the holder of such Award a cash payment in an amount equal to the excess, if any, of the Fair
Market Value (as of a date specified by the Administrator) of the shares subject to such Award over the aggregate Exercise Price of such Award (it being understood that, in such event, any option or stock appreciation right having a per share
Exercise Price equal to, or in excess of, the Fair Market Value of a share subject to such option or stock appreciation right may be cancelled and terminated without any payment or consideration therefor); or
(3) notify the holder of an option or stock appreciation right in writing or electronically that each option and stock appreciation right shall be fully vested and exercisable for
a period of 30 days from the date of such notice, or such shorter period as the Administrator may determine to be reasonable, and the option or stock appreciation right shall terminate upon the expiration of such period (which period shall expire no
later than immediately prior to the consummation of the corporate transaction).
(iv) In connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in this Section 1.5(c):
(A) The number and type of securities or other property subject to each outstanding Award and the Exercise Price or grant price thereof, if applicable, shall be equitably
adjusted; and
(B) The Administrator shall make such equitable adjustments, if any, as the Administrator may deem appropriate to reflect such Equity Restructuring with respect to the
aggregate number and kind of shares that may be issued under the Plan (including, but not limited to, adjustments of the limitations set forth in Sections 1.5(a) and 1.5(d)). The adjustments provided under this Section 1.5(c)(iv) shall be
nondiscretionary and shall be final and binding on the affected participant and the Company.
(d) Individual Limit. Except for the limits set forth in this Section 1.5, no provision of this Plan shall be deemed to limit the number or value of shares of
Common Stock with respect to which the Administrator may make Awards to any Key Person. Subject to adjustment as provided in Section 1.5(c), the total number of shares of Common Stock with respect to which incentive stock options may be granted
under the Plan to any one employee of the Company or a “parent corporation” or “subsidiary corporation” (as such terms are defined in Section 424 of the Code) of the Company during any one calendar year shall not exceed 3,125,000. Incentive stock
options granted and subsequently cancelled or deemed to be cancelled (e.g., as a result of re-pricing) in a calendar year count against the limit in the preceding sentence even after their cancellation.
1.6. Definitions of Certain Terms
(a) “Affiliate” shall mean (i) any entity that, directly or indirectly, is controlled by, controls or is under common control with, the Company and (ii) any entity in
which the Company has a significant equity interest, in either case as determined by the Administrator.
(b) Unless otherwise set forth in the applicable Award Agreement, in connection with a termination of employment or consultancy/service relationship or a dismissal from
Board membership, for purposes of the Plan, the term “for Cause” shall be defined as follows:
(i) if there is an employment, severance, consulting, service, change in control or other agreement governing the relationship between the grantee, on the one hand, and the
Company or an Affiliate, on the other hand, that contains a definition of “cause” (or similar phrase), for purposes of the Plan, the term “for Cause” shall mean those acts or omissions that would constitute “cause” under such agreement; or
(ii) if the preceding clause (i) is not applicable to the grantee, for purposes of the Plan, the term “for Cause” shall mean any of the following:
(A) any failure by the grantee substantially to perform the grantee’s employment or consulting/service or Board membership duties;
(B) any excessive unauthorized absenteeism by the grantee;
(C) any refusal by the grantee to obey the lawful orders of the Board or any other Person to whom the grantee reports;
(D) any act or omission by the grantee that is or may be injurious to the Company or any Affiliate, whether monetarily, reputationally or otherwise;
(E) any act by the grantee that is inconsistent with the best interests of the Company or any Affiliate;
(F) the grantee’s gross negligence that is injurious to the Company or any Affiliate, whether monetarily, reputationally or otherwise;
(G) the grantee’s material violation of any of the policies of the Company or an Affiliate, as applicable, including, without limitation, those policies relating to
discrimination or sexual harassment;
(H) the grantee’s material breach of his or her employment or service contract with the Company or any Affiliate;
(I) the grantee’s unauthorized (1) removal from the premises of the Company or an Affiliate of any document (in any medium or form) relating to the Company or an Affiliate
or the customers or clients of the Company or an Affiliate or (2) disclosure to any Person of any of the Company’s, or any Affiliate’s, confidential or proprietary information;
(J) the grantee’s being convicted of, or entering a plea of guilty or nolo contendere to, any crime that constitutes a felony or involves moral turpitude; and
(K) the grantee’s commission of any act involving dishonesty or fraud.
Any rights the Company or its Affiliates may have under the Plan in respect of the events giving rise to a termination or dismissal “for Cause” shall be in addition to any other rights the Company or
its Affiliates may have under any other agreement with a grantee or at law or in equity. Any determination of whether a grantee’s employment, consultancy/service relationship or Board membership is (or is deemed to have been) terminated “for Cause”
shall be made by the Administrator. If, subsequent to a grantee’s voluntary termination of employment or consultancy/service relationship or voluntarily resignation from the Board or involuntary termination of employment or consultancy/service
relationship without Cause or removal from the Board other than “for Cause”, it is discovered that the grantee’s employment or consultancy/service relationship or Board membership could have been terminated “for Cause”, the Administrator may deem
such grantee’s employment or consultancy/service relationship or Board membership to have been terminated “for Cause” upon such discovery and determination by the Administrator.
(c) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(d) Unless otherwise set forth in the applicable Award Agreement, “Disability” shall mean the grantee’s being unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or the grantee’s, by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident
and health plan covering employees of the grantee’s employer. The existence of a Disability shall be determined by the Administrator.
(e) “Equity Restructuring” shall mean a non-reciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off, rights offering
or recapitalization through a large, nonrecurring cash dividend, that affects the shares of Common Stock (or other securities of the Company) or the share price thereof and causes a change in the per share value of the shares underlying outstanding
Awards.
(f) “Exercise Price” shall mean (i) in the case of options, the price specified in the applicable Award Agreement as the price-per-share at which such share can be
purchased pursuant to the option or (ii) in the case of stock appreciation rights, the price specified in the applicable Award Agreement as the reference price-per-share used to calculate the amount payable to the grantee.
(g) The “Fair Market Value” of a share of Common Stock on any day shall be the closing price on the Nasdaq Global Market, or such other primary stock exchange upon which
such shares are then listed, as reported for such day in The Wall Street Journal, or, if no such price is reported for such day, the average of the high bid and low asked price of Common Stock as reported for such day. If no quotation is made for
the applicable day, the Fair Market Value of a share of Common Stock on such day shall be determined in the manner set forth in the preceding sentence for the next preceding trading day. Notwithstanding the foregoing, if there is no reported closing
price or high bid/low asked price that satisfies the preceding sentences, or if otherwise deemed necessary or appropriate by the Administrator, the Fair Market Value of a share of Common Stock on any day shall be determined by such methods and
procedures as shall be established from time to time by the Administrator. The “Fair Market Value” of any property other than Common Stock shall be the fair market value of such property determined by such methods and procedures as shall be
established from time to time by the Administrator.
(h) “Person” shall mean any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint
stock company, governmental body or other entity of any kind.
(i) “Repricing” shall mean (i) lowering the Exercise Price of an option or a stock appreciation right after it has been granted, (ii) the cancellation of an option or a
stock appreciation right in exchange for cash or another Award when the Exercise Price exceeds the Fair Market Value of the underlying shares subject to the Award and (iii) any other action with respect to an option or a stock appreciation right that
is treated as a repricing under (A) generally accepted accounting principles or (B) any applicable stock exchange rules.
(j) Unless otherwise set forth in the applicable Award Agreement, “Retirement” shall mean a grantee’s resignation of employment or consultancy/service relationship or
dismissal from the Board, with the Company’s or its applicable Affiliate’s prior consent, on or after (i) his or her 65th birthday, (ii) the date on which he or she has attained age 60 and completed at least five years of service with the Company or
one or more of its Affiliates (using any method of calculation the Administrator deems appropriate) or (iii) if approved by the Administrator, on or after his or her having completed at least 20 years of service with the Company or one or more of its
Affiliates (using any method of calculation the Administrator deems appropriate).
(k) “Subsidiary” shall mean any entity in which the Company, directly or indirectly, has a 50% or more equity interest.
ARTICLE II.
Awards Under The Plan
2.1. Agreements Evidencing Awards
Each Award granted under the Plan shall be evidenced by a written certificate (“Award Agreement”), which shall contain such provisions as the Administrator may deem necessary or
desirable and which may, but need not, require execution or acknowledgment by a grantee. The Award shall be subject to all of the terms and provisions of the Plan and the applicable Award Agreement.
2.2. Grant of Stock Options and Stock Appreciation Rights
(a) Stock Option Grants. The Administrator may grant non-qualified stock options and/or incentive stock options (collectively, “options”) to purchase shares of
Common Stock from the Company to such Key Persons, and in such amounts and subject to such vesting and forfeiture provisions and other terms and conditions, as the Administrator shall determine, subject to the provisions of the Plan. Except to the
extent otherwise specifically provided in the applicable Award Agreement, no option will be treated as an “incentive stock option” for purposes of the Code. Incentive stock options may be granted to employees of the Company and any “parent
corporation” or “subsidiary corporation” (as such terms are defined in Section 424 of the Code) of the Company. In the case of incentive stock options, the terms and conditions of such Awards shall be subject to such applicable rules as may be
prescribed by Sections 421, 422 and 424 of the Code and any regulations related thereto, as may be amended from time to time. If an option is intended to be an incentive stock option, and if for any reason such option (or any portion thereof) shall
not qualify as an incentive stock option for purposes of Section 422 of the Code, then, to the extent of such non-qualification, such option (or portion thereof) shall be regarded as a non-qualified stock option appropriately granted under the Plan;
provided that such option (or portion thereof) otherwise complies with the Plan’s requirements relating to option Awards. It shall be the intent of the Administrator to not grant an Award in the form of stock options to any Key Person who is
then subject to the requirements of Section 409A of the Code with respect to such Award if the Common Stock (as defined below) underlying such Award does not then qualify as “service recipient stock” for purposes of Section 409A. Furthermore, it
shall be the intent of the Administrator, in granting options to Key Persons who are subject to Section 409A and/or 457 of the Code, to structure such options so as to comply with the requirements of Section 409A and/or 457 of the Code, as
applicable.
(b) Stock Appreciation Right Grants; Types of Stock Appreciation Rights. The Administrator may grant stock appreciation rights to such Key Persons, and in such
amounts and subject to such vesting and forfeiture provisions and other terms and conditions, as the Administrator shall determine, subject to the provisions of the Plan. The terms of a stock appreciation right may provide that it shall be
automatically exercised for a payment upon the happening of a specified event that is outside the control of the grantee and that it shall not be otherwise exercisable. Stock appreciation rights may be granted in connection with all or any part of,
or independently of, any option granted under the Plan. It shall be the intent of the Administrator to not grant an Award in the form of stock appreciation rights to any Key Person (i) who is then subject to the requirements of Section 409A of the
Code with respect to such Award if the Common Stock underlying such Award does not then qualify as “service recipient stock” for purposes of Section 409A or (ii) if such Award would create adverse tax consequences for such Key Person under Section
457A of the Code.
(c) Nature of Stock Appreciation Rights. The grantee of a stock appreciation right shall have the right, subject to the terms of the Plan and the applicable Award
Agreement, to receive from the Company an amount equal to (i) the excess of the Fair Market Value of a share of Common Stock on the date of exercise of the stock appreciation right over the Exercise Price of the stock appreciation right, multiplied
by (ii) the number of shares with respect to which the stock appreciation right is exercised. Each Award Agreement with respect to a stock appreciation right shall set forth the Exercise Price of such Award and, unless otherwise specifically
provided in the Award Agreement, the Exercise Price of a stock appreciation right shall equal the Fair Market Value of a share of Common Stock on the date of grant; provided that in no event may such Exercise Price be less than the greater of
(A) the Fair Market Value of a share of Common Stock on the date of grant and (B) the par value of a share of Common Stock. Payment upon exercise of a stock appreciation right shall be in cash or in shares of Common Stock (valued at their Fair
Market Value on the date of exercise of the stock appreciation right) or any combination of both, all as the Administrator shall determine. Repricing of stock appreciation rights granted under the Plan shall not be permitted (1) to the extent such
action could cause adverse tax consequences to the grantee under Sections 409A or 457A of the Code or (2) without prior shareholder approval, to the extent such approval would be required to be obtained by the Company pursuant to the applicable rules
of any applicable stock exchange on which the Common Stock is then listed, and any action that would be deemed to result in a Repricing of a stock appreciation right shall be deemed null and void if it would cause such adverse tax consequences or if
any requisite shareholder approval related thereto is not obtained prior to the effective time of such action. Upon the exercise of a stock appreciation right granted in connection with an option, the number of shares subject to the option shall be
reduced by the number of shares with respect to which the stock appreciation right is exercised. Upon the exercise of an option in connection with which a stock appreciation right has been granted, the number of shares subject to the stock
appreciation right shall be reduced by the number of shares with respect to which the option is exercised.
(d) Option Exercise Price. Each Award Agreement with respect to an option shall set forth the Exercise Price of such Award and, unless otherwise specifically
provided in the Award Agreement, the Exercise Price of an option shall equal the Fair Market Value of a share of Common Stock on the date of grant; provided that in no event may such Exercise Price be less than the greater of (i) the Fair
Market Value of a share of Common Stock on the date of grant and (ii) the par value of a share of Common Stock. Repricing of options granted under the Plan shall not be permitted (1) to the extent such action could cause adverse tax consequences to
the grantee under Sections 409A or 457A of the Code or (2) without prior shareholder approval, to the extent such approval would be required to be obtained by the Company pursuant to the applicable rules of any applicable stock exchange on which the
Common Stock is then listed, and any action that would be deemed to result in a Repricing of an option shall be deemed null and void if it would cause such adverse tax consequences or if any requisite shareholder approval related thereto is not
obtained prior to the effective time of such action.
2.3. Exercise of Options and Stock Appreciation Rights
Subject to the other provisions of this Article II and the Plan, each option and stock appreciation right granted under the Plan shall be exercisable as follows:
(a) Timing and Extent of Exercise. Options and stock appreciation rights shall be exercisable at such times and under such conditions as determined by the
Administrator and set forth in the corresponding Award Agreement, but in no event shall any portion of such Award be exercisable subsequent to the tenth anniversary of the date on which such Award was granted. Unless the applicable Award Agreement
otherwise provides, an option or stock appreciation right may be exercised from time to time as to all or part of the shares as to which such Award is then exercisable.
(b) Notice of Exercise. An option or stock appreciation right shall be exercised by the filing of a written notice with the Company or the Company’s designated
exchange agent (the “Exchange Agent”), on such form and in such manner as the Administrator shall prescribe.
(c) Payment of Exercise Price. Any written notice of exercise of an option shall be accompanied by payment for the shares being purchased. Such payment shall be
made: (i) by certified or official bank check (or the equivalent thereof acceptable to the Company or its Exchange Agent) for the full option Exercise Price; (ii) with the consent of the Administrator, which consent shall be given or withheld in the
sole discretion of the Administrator, by delivery of shares of Common Stock having a Fair Market Value (determined as of the exercise date) equal to all or part of the option Exercise Price and a certified or official bank check (or the equivalent
thereof acceptable to the Company or its Exchange Agent) for any remaining portion of the full option Exercise Price; or (iii) at the sole discretion of the Administrator and to the extent permitted by law, by such other provision, consistent with
the terms of the Plan, as the Administrator may from time to time prescribe (whether directly or indirectly through the Exchange Agent), or by any combination of the foregoing payment methods.
(d) Delivery of Certificates Upon Exercise. Subject to Sections 3.2, 3.4 and 3.13, promptly after receiving payment of the full option Exercise Price, or after
receiving notice of the exercise of a stock appreciation right for which the Administrator determines payment will be made partly or entirely in shares, the Company or its Exchange Agent shall (i) deliver to the grantee, or to such other Person as
may then have the right to exercise the Award, a certificate or certificates for the shares of Common Stock for which the Award has been exercised or, in the case of stock appreciation rights, for which the Administrator determines will be made in
shares or (ii) establish an account evidencing ownership of the stock in uncertificated form. If the method of payment employed upon an option exercise so requires, and if applicable law permits, an optionee may direct the Company or its Exchange
Agent, as the case may be, to deliver the stock certificate(s) to the optionee’s stockbroker.
(e) No Stockholder Rights. No grantee of an option or stock appreciation right (or other Person having the right to exercise such Award) shall have any of the
rights of a stockholder of the Company with respect to shares subject to such Award until the issuance of a stock certificate to such Person for such shares. Except as otherwise provided in Section 1.5(c), no adjustment shall be made for dividends,
distributions or other rights (whether ordinary or extraordinary, and whether in cash, securities or other property) for which the record date is prior to the date such stock certificate is issued.
2.4. Termination of Employment; Death Subsequent to a Termination of Employment
(a) General Rule. Except to the extent otherwise provided in paragraphs (b), (c), (d), (e) or (f) of this Section 2.4 or Section 3.5(b)(iii), a grantee who incurs
a termination of employment or consultancy/service relationship or dismissal from the Board may exercise any outstanding option or stock appreciation right on the following terms and conditions: (i) exercise may be made only to the extent that the
grantee was entitled to exercise the Award on the date of termination of employment or consultancy/service relationship or dismissal from the Board, as applicable; and (ii) exercise must occur within three months after termination of employment or
consultancy/service relationship or dismissal from the Board but in no event after the original expiration date of the Award.
(b) Dismissal “for Cause”. If a grantee incurs a termination of employment or consultancy/service relationship or dismissal from the Board “for Cause”, all options
and stock appreciation rights not theretofore exercised shall immediately terminate upon the grantee’s termination of employment or consultancy/service relationship or dismissal from the Board.
(c) Retirement. If a grantee incurs a termination of employment or consultancy/service relationship or dismissal from the Board as the result of his or her Retirement,
then any outstanding option or stock appreciation right shall, to the extent exercisable at the time of such Retirement, remain exercisable for a period of three years after such Retirement; provided that in no event may such option or stock
appreciation right be exercised following the original expiration date of the Award.
(d) Disability. If a grantee incurs a termination of employment or consultancy/service relationship or a dismissal from the Board by reason of a Disability, then
any outstanding option or stock appreciation right shall, to the extent exercisable at the time of such termination or dismissal, remain exercisable for a period of one year after such termination or dismissal; provided that in no event may
such option or stock appreciation right be exercised following the original expiration date of the Award.
(e) Death.
(i) Termination of Employment as a Result of Grantee’s Death. If a grantee incurs a termination of employment or
consultancy/service relationship or leaves the Board as the result of his or her death, then any outstanding option or stock appreciation right shall, to the extent exercisable at the time of such death, remain exercisable for a period of one year
after such death; provided that in no event may such option or stock appreciation right be exercised following the original expiration date of the Award.
(ii) Restrictions on Exercise Following Death. Any such exercise of an Award following a grantee’s death shall be made only by
the grantee’s executor or administrator or other duly appointed representative reasonably acceptable to the Administrator, unless the grantee’s will specifically disposes of such Award, in which case such exercise shall be made only by the recipient
of such specific disposition. If a grantee’s personal representative or the recipient of a specific disposition under the grantee’s will shall be entitled to exercise any Award pursuant to the preceding sentence, such representative or recipient
shall be bound by all the terms and conditions of the Plan and the applicable Award Agreement which would have applied to the grantee.
(f) Administrator Discretion. The Administrator may, in writing, waive or modify the application of the foregoing provisions of this Section 2.4.
2.5. Transferability of Options and Stock Appreciation Rights
Except as otherwise specifically provided in this Plan or the applicable Award Agreement evidencing an option or stock appreciation right, during the lifetime of a grantee, each
such Award granted to a grantee shall be exercisable only by the grantee, and no such Award may be sold, assigned, transferred, pledged or otherwise encumbered or disposed of other than by will or by the laws of descent and distribution. The
Administrator may, in any applicable Award Agreement evidencing an option or stock appreciation right, permit a grantee to transfer all or some of the options or stock appreciation rights to (a) the grantee’s spouse, children or grandchildren
(“Immediate Family Members”), (b) a trust or trusts for the exclusive benefit of such Immediate Family Members or (c) other parties approved by the Administrator. Following any such transfer, any transferred options and stock appreciation rights
shall continue to be subject to the same terms and conditions as were applicable immediately prior to the transfer.
2.6. Grant of Restricted Stock
(a) Restricted Stock Grants. The Administrator may grant restricted shares of Common Stock to such Key Persons, in such amounts and subject to such vesting and
forfeiture provisions and other terms and conditions as the Administrator shall determine, subject to the provisions of the Plan. A grantee of a restricted stock Award shall have no rights with respect to such Award unless such grantee accepts the
Award within such period as the Administrator shall specify by accepting delivery of a restricted stock Award Agreement in such form as the Administrator shall determine and, in the event the restricted shares are newly issued by the Company, makes
payment to the Company or its Exchange Agent by certified or official bank check (or the equivalent thereof acceptable to the Administrator) in an amount at least equal to the par value of the shares covered by the Award (which payment may be waived
at the time of grant of the restricted stock Award to the extent the restricted shares granted hereunder are otherwise deemed to be fully paid and non-assessable).
(b) Issuance of Stock Certificate. Promptly after a grantee accepts a restricted stock Award in accordance with Section 2.6(a), subject to Sections 3.2, 3.4 and
3.13, the Company or its Exchange Agent shall issue to the grantee a stock certificate or stock certificates for the shares of Common Stock covered by the Award or shall establish an account evidencing ownership of the stock in uncertificated form.
Upon the issuance of such stock certificates, or establishment of such account, the grantee shall have the rights of a stockholder with respect to the restricted stock, subject to: (i) the nontransferability restrictions and forfeiture provisions
described in the Plan (including paragraphs (d) and (e) of this Section 2.6); (ii) in the Administrator’s sole discretion, a requirement, as set forth in the Award Agreement, that any dividends paid on such shares shall be held in escrow and, unless
otherwise determined by the Administrator, shall remain forfeitable until all restrictions on such shares have lapsed; and (iii) any other restrictions and conditions contained in the applicable Award Agreement.
(c) Custody of Stock Certificate. Unless the Administrator shall otherwise determine, any stock certificates issued evidencing shares of restricted stock shall
remain in the possession of the Company until such shares are free of any restrictions specified in the applicable Award Agreement. The Administrator may direct that such stock certificates bear a legend setting forth the applicable restrictions on
transferability.
(d) Nontransferability. Except as otherwise specifically provided in this Plan or the applicable Award Agreement evidencing a restricted stock Award, shares of
restricted stock granted under the Plan may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of prior to the lapsing of all restrictions thereon. The Administrator at the time of grant shall specify the date or dates
(which may depend upon or be related to the attainment of performance goals and other conditions) on which the nontransferability of the restricted stock shall lapse. The Administrator may, in any applicable Award Agreement evidencing a restricted
stock Award, permit a grantee to transfer all or some of the shares of restricted stock prior to the lapsing of all restrictions thereon to (i) the grantee’s Immediate Family Members, (ii) a trust or trusts for the exclusive benefit of such Immediate
Family Members or (iii) other parties approved by the Administrator. Following any permitted transfer prior to the lapsing of all restrictions on the restricted stock, any transferred shares of restricted stock shall continue to be subject to the
same terms and conditions as were applicable immediately prior to the transfer.
(e) Consequence of Termination of Employment. Unless otherwise set forth in the applicable Award Agreement, (i) a grantee’s termination of employment or
consultancy/service relationship or dismissal from the Board for any reason other than death, Disability or Retirement shall cause the immediate forfeiture of all shares of restricted stock that have not yet vested as of the date of such termination
of employment or consultancy/service relationship or dismissal from the Board and (ii) if a grantee incurs a termination of employment or consultancy/service relationship or dismissal from the Board as the result of his or her death, Disability or
Retirement, all shares of restricted stock that have not yet vested as of the date of such termination or departure from the Board shall immediately vest as of such date. Unless otherwise determined by the Administrator, all dividends paid on shares
forfeited under this Section 2.6(e) that have not theretofore been directly remitted to the grantee shall also be forfeited, whether by termination of any escrow arrangement under which such dividends are held or otherwise. The Administrator may, in
writing, waive or modify the application of the foregoing provisions of this Section 2.6(e).
2.7. Grant of Restricted Stock Units
(a) Restricted Stock Unit Grants. The Administrator may grant restricted stock units to such Key Persons, and in such amounts and subject to such vesting and
forfeiture provisions and other terms and conditions, as the Administrator shall determine, subject to the provisions of the Plan. A restricted stock unit granted under the Plan shall confer upon the grantee a right to receive from the Company,
conditioned upon the occurrence of such vesting event as shall be determined by the Administrator and specified in the Award Agreement, the number of such grantee’s restricted stock units that vest upon the occurrence of such vesting event multiplied
by the Fair Market Value of a share of Common Stock on the date of vesting. Payment upon vesting of a restricted stock unit shall be in cash or in shares of Common Stock (valued at their Fair Market Value on the date of vesting) or both, all as the
Administrator shall determine, and such payments shall be made to the grantee at such time as provided in the Award Agreement, which the Administrator shall intend to be (i) if Section 409A of the Code is applicable to the grantee, within the period
required by Section 409A such that it qualifies as a “short-term deferral” pursuant to Section 409A and the Treasury Regulations issued thereunder, unless the Administrator shall provide for deferral of the Award intended to comply with Section 409A,
(ii) if Section 457A of the Code is applicable to the grantee, within the period required by Section 457A(d)(3)(B) such that it qualifies for the exemption thereunder, or (iii) if Sections 409A and 457A of the Code are not applicable to the grantee,
at such time as determined by the Administrator.
(b) Dividend Equivalents. The Administrator may include in any Award Agreement with respect to a restricted stock unit a dividend equivalent right entitling the
grantee to receive amounts equal to the ordinary dividends that would be paid, during the time such Award is outstanding and unvested, on the shares of Common Stock underlying such Award if such shares were then outstanding. In the event such a
provision is included in a Award Agreement, the Administrator shall determine whether such payments shall be (i) paid to the holder of the Award, as specified in the Award Agreement, either (A) at the same time as the underlying dividends are paid,
regardless of the fact that the restricted stock unit has not theretofore vested, or (B) at the time at which the Award’s vesting event occurs, conditioned upon the occurrence of the vesting event, (ii) made in cash, shares of Common Stock or other
property and (iii) subject to such other vesting and forfeiture provisions and other terms and conditions as the Administrator shall deem appropriate and as shall be set forth in the Award Agreement.
(c) Consequence of Termination of Employment. Unless otherwise set forth in the applicable Award Agreement, (i) a grantee’s termination of employment or
consultancy/service relationship or dismissal from the Board for any reason other than death, Disability or Retirement shall cause the immediate forfeiture of all restricted stock units that have not yet vested as of the date of such termination of
employment or consultancy/service relationship or dismissal from the Board and (ii) if a grantee incurs a termination of employment or consultancy/service relationship or dismissal from the Board as the result of his or her death, Disability or
Retirement, all restricted stock units that have not yet vested as of the date of such termination or departure from the Board shall immediately vest as of such date. Unless otherwise determined by the Administrator, any dividend equivalent rights
on any restricted stock units forfeited under this Section 2.7(c) that have not theretofore been directly remitted to the grantee shall also be forfeited, whether by termination of any escrow arrangement under which such dividends are held or
otherwise. The Administrator may, in writing, waive or modify the application of the foregoing provisions of this Section 2.7(c).
(d) No Stockholder Rights. No grantee of a restricted stock unit shall have any of the rights of a stockholder of the Company with respect to such Award unless and
until a stock certificate is issued with respect to such Award upon the vesting of such Award (it being understood that the Administrator shall determine whether to pay any vested restricted stock unit in the form of cash or Company shares or both),
which issuance shall be subject to Sections 3.2, 3.4 and 3.13. Except as otherwise provided in Section 1.5(c), no adjustment to any restricted stock unit shall be made for dividends, distributions or other rights (whether ordinary or extraordinary,
and whether in cash, securities or other property) for which the record date is prior to the date such stock certificate, if any, is issued.
(e) Transferability of Restricted Stock Units. Except as otherwise provided in an applicable Award Agreement evidencing a restricted stock unit, no restricted
stock unit granted under the Plan shall be assignable or transferable. The Administrator may, in any applicable Award Agreement evidencing a restricted stock unit, permit a grantee to transfer all or some of the restricted stock units to (i) the
grantee’s Immediate Family Members, (ii) a trust or trusts for the exclusive benefit of such Immediate Family Members or (iii) other parties approved by the Administrator. Following any such transfer, any transferred restricted stock units shall
continue to be subject to the same terms and conditions as were applicable immediately prior to the transfer.
2.8. Grant of Unrestricted Stock
The Administrator may grant (or sell at a purchase price at least equal to par value) shares of Common Stock free of restrictions under the Plan to such Key Persons and in such
amounts and subject to such forfeiture provisions as the Administrator shall determine. Shares may be thus granted or sold in respect of past services or other valid consideration.
ARTICLE III.
Miscellaneous
3.1. Amendment of the Plan; Modification of Awards
(a) Amendment of the Plan. The Board may from time to time suspend, discontinue, revise or amend the Plan in any respect whatsoever, except that no such amendment
shall materially impair any rights or materially increase any obligations under any Award theretofore made under the Plan without the consent of the grantee (or, upon the grantee’s death, the Person having the right to exercise the Award). For
purposes of this Section 3.1, any action of the Board or the Administrator that in any way alters or affects the tax treatment of any Award shall not be considered to materially impair any rights of any grantee.
(b) Stockholder Approval Requirement. If (1) required by applicable rules or regulations of a national securities exchange or the SEC, the Company shall obtain
stockholder approval with respect to any amendment to the Plan that (i) expands the types of Awards available under the Plan, (ii) materially increases the aggregate number of shares which may be issued under the Plan, except as permitted pursuant to
Section 1.5(c), (iii) materially increases the benefits to participants under the Plan, including any material change to (A) permit, or that has the effect of, a Repricing of any outstanding Award, (B) reduce the price at which shares or options to
purchase shares may be offered or (C) extend the duration of the Plan, or (iv) materially expands the class of Persons eligible to receive Awards under the Plan, or (2) the Administrator determines that it desires to retain the ability to grant
incentive stock options under the Plan thereafter, the Company shall obtain stockholder approval with respect to any amendment to the Plan that (i) increases the number of shares that may be issued under the Plan or the individual limit set forth
under Section 1.5(d) of the Plan (except, in each case, as permitted pursuant to Section 1.5(c)) or (ii) expands the class of Persons eligible to receive incentive stock options under the Plan.
(c) Modification of Awards. The Administrator may cancel any Award under the Plan. The Administrator also may amend any outstanding Award Agreement, including,
without limitation, by amendment which would: (i) accelerate the time or times at which the Award becomes unrestricted, vested or may be exercised; (ii) waive or amend any goals, restrictions or conditions set forth in the Award Agreement; or (iii)
waive or amend the operation of Sections 2.4, 2.6(e) or 2.7(c) with respect to the termination of the Award upon termination of employment or consultancy/service relationship or dismissal from the Board; provided, however, that no
such amendment shall be made without shareholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to the Award. However, any such cancellation or amendment (other than an amendment pursuant to
Section 1.5, 3.5 or 3.16) that materially impairs the rights or materially increases the obligations of a grantee under an outstanding Award shall be made only with the consent of the grantee (or, upon the grantee’s death, the Person having the right
to exercise the Award). In making any modification to an Award (e.g., an amendment resulting in a direct or indirect reduction in the Exercise Price or a waiver or modification under Section 2.4(f), 2.6(e) or 2.7(c)), the Administrator may
consider the implications, if any, of such modification under the Code with respect to incentive stock options granted under the Plan and/or Sections 409A and 457A of the Code with respect to Awards granted under the Plan to individuals subject to
such provisions of the Code.
3.2. Consent Requirement
(a) No Plan Action Without Required Consent. If the Administrator shall at any time determine that any Consent (as defined below) is necessary or desirable as a
condition of, or in connection with, the granting of any Award under the Plan, the issuance or purchase of shares or other rights thereunder, or the taking of any other action thereunder (each such action being hereinafter referred to as a “Plan
Action”), then such Plan Action shall not be taken, in whole or in part, unless and until such Consent shall have been effected or obtained to the full satisfaction of the Administrator.
(b) Consent Defined. The term “Consent” as used herein with respect to any Plan Action means (i) any and all listings, registrations or qualifications in respect
thereof upon any securities exchange or under any federal, state or local law, rule or regulation, (ii) any and all written agreements and representations by the grantee with respect to the disposition of shares, or with respect to any other matter,
which the Administrator shall deem necessary or desirable to comply with the terms of any such listing, registration or qualification or to obtain an exemption from the requirement that any such listing, qualification or registration be made and
(iii) any and all consents, clearances and approvals in respect of a Plan Action by any governmental or other regulatory bodies.
3.3. Nonassignability
Except as provided in Sections 2.4(e), 2.5, 2.6(d) or 2.7(e), (a) no Award or right granted to any Person under the Plan
or under any Award Agreement shall be assignable or transferable other than by will or by the laws of descent and distribution and (b) all rights granted under the Plan or any Award Agreement shall be exercisable during the life of the grantee only
by the grantee or the grantee’s legal representative or the grantee’s permissible successors or assigns (as authorized and determined by the Administrator). All terms and conditions of the Plan and the applicable Award Agreements will be binding
upon any permitted successors or assigns.
3.4. Taxes
(a) Withholding. A grantee or other Award holder under the Plan shall be required to pay, in cash, to the Company, and the Company and its Affiliates shall have
the right and are hereby authorized to withhold from any Award, from any payment due or transfer made under any Award or under the Plan or from any compensation or other amount owing to such grantee or other Award holder, the amount of any applicable
withholding taxes in respect of an Award, its grant, its exercise, its vesting, or any payment or transfer under an Award or under the Plan, and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations
for payment of such taxes. Whenever shares of Common Stock are to be delivered pursuant to an Award under the Plan, with the approval of the Administrator, which the Administrator shall have sole discretion whether or not to give, the grantee may
satisfy the foregoing condition by electing to have the Company withhold from delivery shares having a value equal to the amount of minimum tax required to be withheld. Such shares shall be valued at their Fair Market Value as of the date on which
the amount of tax to be withheld is determined. Fractional share amounts shall be settled in cash. Such a withholding election may be made with respect to all or any portion of the shares to be delivered pursuant to an Award as may be approved by
the Administrator in its sole discretion.
(b) Liability for Taxes. Grantees and holders of Awards are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in
connection with Awards (including, without limitation, any taxes arising under Sections 409A and 457A of the Code) and the Company shall not have any obligation to indemnify or otherwise hold any such Person harmless from any or all of such taxes.
The Administrator shall have the discretion to organize any deferral program, to require deferral election forms, and to grant or, notwithstanding anything to the contrary in the Plan or any Award Agreement, to unilaterally modify any Award in a
manner that (i) conforms with the requirements of Sections 409A and 457A of the Code (to the extent applicable), (ii) voids any participant election to the extent it would violate Sections 409A or 457A of the Code (to the extent applicable) and (iii)
for any distribution event or election that could be expected to violate Section 409A of the Code, make the distribution only upon the earliest of the first to occur of a “permissible distribution event” within the meaning of Section 409A of the Code
or a distribution event that the participant elects in accordance with Section 409A of the Code. The Administrator shall have the sole discretion to interpret the requirements of the Code, including, without limitation, Sections 409A and 457A, for
purposes of the Plan and all Awards.
3.5. Change in Control
(a) Change in Control Defined. Unless otherwise set forth in the applicable Award Agreement, for purposes of the Plan, “Change in Control” shall mean the
occurrence of any of the following:
(i) any “person” (as defined in Section 13(d)(3) of the 1934 Act), company or other entity (other than (A) the Company, (B) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or an Affiliate or (C) any company or other entity owned, directly or indirectly, by the holders of the voting stock of the Company in substantially the same proportions as their ownership of
the aggregate voting power of the capital stock ordinarily entitled to elect directors of the Company directly or indirectly “controls” (as defined in Rule 12b-2 under the 1934 Act)) acquires “beneficial ownership” (as defined in Rule 13d-3 under the
1934 Act), directly or indirectly, of more than 50% of the aggregate voting power of the capital stock ordinarily entitled to elect directors of the Company;
(ii) the sale of all or substantially all the Company’s assets in one or more related transactions to any “person” (as defined in Section 13(d)(3) of the 1934 Act),
company or other entity, other than such a sale (A) to a Subsidiary which does not involve a material change in the equity holdings of the Company, (B) to an entity which has acquired all or substantially all the Company’s assets (any such entity
described in clause (A) or (B), the “Acquiring Entity”) if, immediately following such sale, 50% or more of the aggregate voting power of the capital stock ordinarily entitled to elect directors of the Acquiring Entity (or, if applicable, the
ultimate parent entity that directly or indirectly has beneficial ownership of more than 50% of the aggregate voting power of the capital stock ordinarily entitled to elect directors of the Acquiring Entity) is beneficially owned by the holders of
the voting stock of the Company, and such voting power among the persons who were holders of the voting stock of the Company immediately prior to such sale is, immediately following such sale, held in substantially the same proportions as the
aggregate voting power of the capital stock ordinarily entitled to elect directors of the Company immediately prior to such sale;
(iii) any merger, consolidation, reorganization or similar event of the Company or any Subsidiary as a result of which the holders of the voting stock of the Company
immediately prior to such merger, consolidation, reorganization or similar event do not directly or indirectly hold 50% or more of the aggregate voting power of the capital stock of the surviving entity ordinarily entitled to elect directors of the
surviving entity (or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of more than 50% of the aggregate voting power of the capital stock ordinarily entitled to elect directors of the surviving entity)
and such voting power among the persons who were holders of the voting stock of the Company immediately prior to such sale is, immediately following such sale, held in substantially the same proportions as the aggregate voting power of the capital
stock ordinarily entitled to elect directors of the Company immediately prior to such sale;
(iv) the approval by the Company’s stockholders of a plan of complete liquidation or dissolution of the Company; or
(v) during any period of 12 consecutive calendar months, individuals:
|
(A) |
who were directors of the Company on the first day of such period, or
|
|
(B) |
whose election or nomination for election to the Board was recommended or approved by at least a majority of the directors then still in office who were directors of the Company on the first day of such period, or whose election or
nomination for election were so approved,
|
shall cease to constitute a majority of the Board.
Notwithstanding the foregoing, unless otherwise set forth in the applicable Award Agreement, for each Award subject to Section 409A of the Code, a Change in Control shall be deemed to have occurred
under this Plan with respect to such Award only if a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section
409A of the Code, provided that such limitation shall apply to such Award only to the extent necessary to avoid adverse tax effects under Section 409A of the Code.
(b) Effect of a Change in Control. Unless the Administrator provides otherwise in an Award Agreement, upon the occurrence of a Change in Control:
(i) notwithstanding any other provision of this Plan, any Award then outstanding shall become fully vested and any restriction and forfeiture provisions thereon imposed
pursuant to the Plan and the Award Agreement shall lapse and any Award in the form of an option or stock appreciation right shall be immediately exercisable;
(ii) to the extent permitted by law and not otherwise limited by the terms of the Plan, the Administrator may amend any Award Agreement in such manner as it deems
appropriate;
(iii) a grantee who incurs a termination of employment or consultancy/service relationship or dismissal from the Board for any reason, other than a termination or dismissal
“for Cause”, concurrent with or within one year following the Change in Control may exercise any outstanding option or stock appreciation right, but only to the extent that the grantee was entitled to exercise the Award on the date of his or her
termination of employment or consultancy/service relationship or dismissal from the Board, until the earlier of (A) the original expiration date of the Award and (B) the later of (x) the date provided for under the terms of Section 2.4 without
reference to this Section 3.5(b)(iii) and (y) the first anniversary of the grantee’s termination of employment or consultancy/service relationship or dismissal from the Board.
(c) Miscellaneous. Whenever deemed appropriate by the Administrator, any action referred to in paragraph (b)(ii) of this Section 3.5 may be made conditional upon
the consummation of the applicable Change in Control transaction. For purposes of the Plan and any Award Agreement granted hereunder, the term “Company” shall include any successor to United Maritime Corporation.
3.6. Operation and Conduct of Business
Nothing in the Plan or any Award Agreement shall be construed as limiting or preventing the Company or any Affiliate from taking any action with respect to the operation and
conduct of their business that they deem appropriate or in their best interests, including any or all adjustments, recapitalizations, reorganizations, exchanges or other changes in the capital structure of the Company or any Affiliate, any merger or
consolidation of the Company or any Affiliate, any issuance of Company shares or other securities or subscription rights, any issuance of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or other
securities or rights thereof, any dissolution or liquidation of the Company or any Affiliate, any sale or transfer of all or any part of the assets or business of the Company or any Affiliate, or any other corporate act or proceeding, whether of a
similar character or otherwise.
3.7. No Rights to Awards
No Key Person or other Person shall have any claim to be granted any Award under the Plan.
3.8. Right of Discharge Reserved
Nothing in the Plan or in any Award Agreement shall confer upon any grantee the right to continue his or her employment with the Company or any Affiliate, his or her
consultancy/service relationship with the Company or any Affiliate, or his or her position as a director of the Company or any Affiliate, or affect any right that the Company or any Affiliate may have to terminate such employment or
consultancy/service relationship or service as a director.
3.9. Non-Uniform Determinations
The Administrator’s determinations and the treatment of Key Persons and grantees and their beneficiaries under the Plan need not be uniform and may be made and determined by the
Administrator selectively among Persons who receive, or who are eligible to receive, Awards under the Plan (whether or not such Persons are similarly situated). Without limiting the generality of the foregoing, the Administrator shall be entitled,
among other things, to make non-uniform and selective determinations, and to enter into non-uniform and selective Award Agreements, as to (a) the Persons to receive Awards under the Plan, (b) the types of Awards granted under the Plan, (c) the number
of shares to be covered by, or with respect to which payments, rights or other matters are to be calculated with respect to, Awards and (d) the terms and conditions of Awards.
3.10. Other Payments or Awards
Nothing contained in the Plan shall be deemed in any way to limit or restrict the Company from making any award or payment to any Person under any other plan, arrangement or
understanding, whether now existing or hereafter in effect.
3.11. Headings
Any section, subsection, paragraph or other subdivision headings contained herein are for the purpose of convenience only and are not intended to expand, limit or otherwise define
the contents of such subdivisions.
3.12. Effective Date and Term of Plan
(a) Adoption; Stockholder Approval. The Plan was adopted by the Board on [●], 2022. The Board may, but need not,
make the granting of any Awards under the Plan subject to the approval of the Company’s stockholders.
(b) Termination of Plan. The Board may terminate the Plan at any time. All Awards made under the Plan prior to its termination shall remain in effect until such
Awards have been satisfied or terminated in accordance with the terms and provisions of the Plan and the applicable Award Agreements. No Awards may be granted under the Plan following the tenth anniversary of the date on which the Plan was adopted
by the Board.
3.13. Restriction on Issuance of Stock Pursuant to Awards
The Company shall not permit any shares of Common Stock to be issued pursuant to Awards granted under the Plan unless such shares of Common Stock are fully paid and non-assessable
under applicable law. Notwithstanding anything to the contrary in the Plan or any Award Agreement, at the time of the exercise of any Award, at the time of vesting of any Award, at the time of payment of shares of Common Stock in exchange for, or in
cancellation of, any Award, or at the time of grant of any unrestricted shares under the Plan, the Company and the Administrator may, if either shall deem it necessary or advisable for any reason, require the holder of an Award (a) to represent in
writing to the Company that it is the Award holder’s then-intention to acquire the shares with respect to which the Award is granted for investment and not with a view to the distribution thereof or (b) to postpone the date of exercise until such
time as the Company has available for delivery to the Award holder a prospectus meeting the requirements of all applicable securities laws; and no shares shall be issued or transferred in
connection with any Award unless and until all legal requirements applicable to the issuance or transfer of such shares have been complied with to the satisfaction of the Company and the Administrator. The Company and the Administrator shall have
the right to condition any issuance of shares to any Award holder hereunder on such Person’s undertaking in writing to comply with such restrictions on the subsequent transfer of such shares as the Company or the Administrator shall deem necessary or
advisable as a result of any applicable law, regulation or official interpretation thereof, and all share certificates delivered under the Plan shall be subject to such stop transfer orders and other restrictions as the Company or the Administrator
may deem advisable under the Plan, the applicable Award Agreement or the rules, regulations and other requirements of the SEC, any stock exchange upon which such shares are listed, and any applicable securities or other laws, and certificates
representing such shares may contain a legend to reflect any such restrictions. The Administrator may refuse to issue or transfer any shares or other consideration under an Award if it determines that the issuance or transfer of such shares or other
consideration might violate any applicable law or regulation or entitle the Company to recover the same under Section 16(b) of the 1934 Act, and any payment tendered to the Company by a grantee or other Award holder in connection with the exercise of
such Award shall be promptly refunded to the relevant grantee or other Award holder. Without limiting the generality of the foregoing, no Award granted under the Plan shall be construed as an offer to sell securities of the Company, and no such
offer shall be outstanding, unless and until the Administrator has determined that any such offer, if made, would be in compliance with all applicable requirements of any applicable securities laws.
3.14. Requirement of Notification of Election Under Section 83(b) of the Code or Upon Disqualifying Disposition Under
Section 421(b) of the Code
(a) Notification of Election Under Section 83(b) of the Code. If an Award recipient, in connection with the acquisition of Company shares under the Plan, makes an
election under Section 83(b) of the Code (to include in gross income in the year of transfer the amounts specified in Section 83(b) of the Code), the grantee shall notify the Administrator of such election within ten days of filing notice of the
election with the U.S. Internal Revenue Service, in addition to any filing and notification required pursuant to regulations issued under Section 83(b) of the Code.
(b) Notification of Disqualifying Disposition of Incentive Stock Options. If an Award recipient shall make any disposition of Company shares delivered pursuant to
the exercise of an incentive stock option under the circumstances described in Section 421(b) of the Code (relating to certain disqualifying dispositions) or any successor provision of the Code, the grantee shall notify the Company of such
disposition within ten days thereof.
3.15. Severability
If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify
the Plan or any Award under any law deemed applicable by the Administrator, such provision shall be construed or deemed amended to conform to the applicable laws or, if it cannot be construed or deemed amended without, in the determination of the
Administrator, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
3.16. Sections 409A and 457A
To the extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Sections 409A and 457A of the Code and Department of Treasury regulations and other
interpretive guidance issued thereunder. Notwithstanding any provision of the Plan or any applicable Award Agreement to the contrary, in the event that the Administrator determines that any Award may be subject to Section 409A or 457A of the Code,
the Administrator may adopt such amendments to the Plan and the applicable Award Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the
Administrator determines are necessary or appropriate to (i) exempt the Plan and Award from Sections 409A and 457A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Award, or (ii) comply with the
requirements of Sections 409A and 457A of the Code and related Department of Treasury guidance and thereby avoid the application of penalty taxes under Sections 409A and 457A of the Code.
3.17. Forfeiture; Clawback
The Administrator may, in its sole discretion, specify in the applicable Award Agreement that any realized gain with respect to options or stock appreciation rights and any
realized value with respect to other Awards shall be subject to forfeiture or clawback, in the event of (a) a grantee’s breach of any non-competition, non-solicitation, confidentiality or other restrictive covenants with respect to the Company or any
Affiliate or (ii) a financial restatement that reduces the amount of bonus or incentive compensation previously awarded to a grantee that would have been earned had results been properly reported.
3.18. No Trust or Fund Created
Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and an
Award recipient or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the
Company or its Affiliate.
3.19. No Fractional Shares
No fractional shares shall be issued or delivered pursuant to the Plan or any Award, and the Administrator shall determine whether cash, other securities, or other property shall
be paid or transferred in lieu of any fractional shares or whether such fractional shares or any rights thereto shall be canceled, terminated, or otherwise eliminated.
3.20. Governing Law
The Plan will be construed and administered in accordance with the laws of the State of New York, without giving effect to principles of conflict of laws.
Exhibit 4.8
Dated 15 July 2020
US$22,500,000
TERM LOAN FACILITY
SEA GLORIUS SHIPPING CO.
SEA GENIUS SHIPPING CO.
as joint and several Borrowers
and
SEANERGY MARITIME HOLDINGS CORP.
as Guarantor
and
LUCID AGENCY SERVICES LIMITED
as Facility Agent
and
LUCID TRUSTEE SERVICES LIMITED
as Security Agent
FACILITY AGREEMENT
relating to
the refinancing certain existing indebtedness
secured on m.v.s "GLORIUSHIP" and "GENIUSHIP"
Index
Clause |
|
Page |
|
|
|
Section |
1 Interpretation |
2 |
1 |
Definitions and Interpretation |
2 |
Section |
2 The Facility |
29 |
2 |
The Facility |
29 |
3 |
Purpose |
29 |
4 |
Conditions of Utilisation |
30 |
Section |
3 Utilisation |
31 |
5 |
Utilisation |
31 |
Section |
4 Repayment, Prepayment and Cancellation |
33 |
6 |
Repayment |
33 |
7 |
Prepayment and Cancellation |
33 |
Section |
5 Costs of Utilisation |
36 |
8 |
Interest |
36 |
9 |
Interest Periods |
36 |
10 |
Fees |
37 |
Section |
6 Additional Payment Obligations |
39 |
11 |
Tax Gross Up and Indemnities |
39 |
12 |
Increased Costs |
44 |
13 |
Other Indemnities |
45 |
14 |
Mitigation by the Finance Parties |
48 |
15 |
Costs and Expenses |
48 |
Section |
7 Guarantee and Joint and Several Liability of the Borrowers |
50 |
16 |
Guarantee and Indemnity |
50 |
17 |
Joint and Several Liability of the Borrowers |
53 |
Section |
8 Representations, Undertakings and Events of Default |
55 |
18 |
Representations |
55 |
19 |
Financial Covenants |
61 |
20 |
Information Undertakings |
62 |
21 |
General Undertakings |
66 |
22 |
Insurance Undertakings |
72 |
23 |
Ship Undertakings |
78 |
24 |
Security Cover |
83 |
25 |
Earnings Account and Application of Earnings |
86 |
26 |
Events of Default |
87 |
Section |
9 Changes to Parties |
93 |
27 |
Changes to the Lenders |
93 |
28 |
Changes to the Transaction Obligors |
98 |
Section |
10 The Finance Parties |
99 |
29 |
The Facility Agent |
99 |
30 |
The Security Agent |
110 |
31 |
Conduct of Business by the Finance Parties |
125 |
32 |
Sharing among the Finance Parties |
126 |
Section |
11 Administration |
128 |
33 |
Payment Mechanics |
128 |
34 |
Set-Off |
131 |
35 |
Bail-In |
131 |
36 |
Notices |
131 |
37 |
Calculations and Certificates |
134 |
38 |
Partial Invalidity |
134 |
39 |
Remedies and Waivers |
134 |
40 |
Settlement or Discharge Conditional |
134 |
41 |
Irrevocable Payment |
134 |
42 |
Amendments and Waivers |
135 |
43 |
Confidential Information |
137 |
44 |
Counterparts |
140 |
Section 12 Governing Law and Enforcement |
141 |
45 |
Governing Law |
141 |
46 |
Enforcement |
141 |
47 |
Patriot Act Notice |
142 |
Schedules
Schedule 1 The Parties |
143 |
Part A The Obligors |
143 |
Part B The Original Lenders |
144 |
Part C The Servicing Parties |
146 |
Schedule 2 Conditions Precedent |
147 |
Part A Conditions precedent to Utilisation Request |
147 |
Part B Conditions precedent to Utilisation |
149 |
Schedule 3 Requests |
152 |
Utilisation Request |
152 |
Schedule 4 Form of Transfer Certificate |
154 |
Schedule 5 Form of Assignment Agreement |
156 |
Schedule 6 Repayment Schedule |
159 |
Schedule 7 Details of the Ships |
160 |
Schedule 8 Timetables |
161 |
Schedule 9 Form of Compliance Certificate |
162 |
|
|
Execution |
|
|
|
Execution Pages |
163 |
THIS AGREEMENT is made on 15 July 2020
Parties
|
(1) |
SEA GLORIUS SHIPPING CO., a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, MH96960, Majuro, Marshall Islands as borrower ("Borrower A") |
|
(2) |
SEA GENIUS SHIPPING CO., a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, MH96960, Majuro, Marshall Islands as borrower ("Borrower B") |
|
(3) |
SEANERGY MARITIME HOLDINGS CORP., a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex,
Ajeltake Road, Ajeltake Island, MH96960, Majuro, Marshall Islands as guarantor (the "Guarantor") |
|
(4) |
THE FINANCIAL INSTITUTIONS listed in Part B of Schedule
1 (The Parties) as lenders (the "Original Lenders") |
|
(5) |
LUCID AGENCY SERVICES LIMITED as agent of the other Finance Parties (the "Facility Agent") |
|
(6) |
LUCID TRUSTEE SERVICES LIMITED as security agent for the Secured Parties (the "Security Agent") |
Background
The Lenders have agreed to make available to the Borrowers a senior secured term loan facility of up to US$22,500,000 in two Tranches for the purpose of refinancing part
of the Existing Indebtedness in respect of the Ships in an aggregate amount of up to the lesser of (i) $22,500,000 and (ii) 80 per cent. of the aggregate of the Initial Market Value of Ship A and Ship B.
OPERATIVE PROVISIONS
Section 1
Interpretation
|
1 |
Definitions and Interpretation |
In this Agreement:
"Account Bank" means Alpha Bank S.A. acting through its office at
Piraeus, Greece or any replacement bank or other financial institution as may be approved by the Facility Agent acting with the authorisation of the Majority Lenders.
"Account Security" means a document creating Security over the Earnings
Accounts in agreed form.
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of that Holding Company.
"Approved Brokers" means any firm or firms of insurance brokers
approved in writing by the Facility Agent, acting with the authorisation of the Majority Lenders.
"Approved Classification" means:
|
(a) |
in relation to a Ship, as at the date of this Agreement, the classification in relation to that Ship specified in Schedule 7 (Details
of the Ships); |
|
(b) |
in relation to the Collateral Ship, I* Hull *Mach, |
or the equivalent classification with another Approved Classification Society.
"Approved Classification Society" means:
|
(a) |
in relation to a Ship, as at the date of this Agreement, the classification society in relation to that Ship specified Schedule 7 (Details
of the Ships); |
|
(b) |
in relation to the Collateral Ship, Bureau Veritas, |
or any other classification society approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders, such
approval not to be unreasonably withheld or delayed.
"Approved Commercial Manager" means:
|
(c) |
a direct or indirect wholly owned Subsidiary of the Guarantor; or |
|
(d) |
any other person not being a wholly owned Subsidiary of the Guarantor approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders as the commercial manager of a Ship, or as the
case may be, the Collateral Ship, such approval not to be unreasonably withheld or delayed. |
"Approved Flag" means:
|
(a) |
in relation to a Ship, as at the date of this Agreement, the flag in relation to that Ship specified in Schedule 7 (Details of the
Ships); |
|
(b) |
in relation to the Collateral Ship, the Republic of Liberia, |
or such other flag approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders, such approval not to be
unreasonably withheld or delayed.
"Approved Manager" means the Approved Commercial Manager or the
Approved Technical Manager.
"Approved Technical Manager" means:
|
(b) |
a direct or indirect wholly owned Subsidiary of the Guarantor; or |
|
(c) |
any other person not being a direct or indirect wholly owned Subsidiary of the Guarantor approved in writing by the Facility Agent, acting with the authorisation of the Majority Lenders as the technical manager of a
Ship, or as the case may be, the Collateral Ship, such approval not to be unreasonably withheld or delayed. |
"Approved Valuer" means Clarksons Valuations Limited, Braemar ACM
Valuations Limited, Simpson Spence & Young Valuations Services Ltd, Arrow Research Limited, Fearnleys Shipbrokers A/S (or any Affiliate of such person through which valuations are commonly issued) and any other firm or firms of independent sale and
purchase shipbrokers approved in writing by the Facility Agent, acting with the authorisation of the Majority Lenders.
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit
institutions and investment firms.
"Assignment Agreement" means an agreement substantially in the form set
out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee and the Facility Agent (acting with the
authorisation of the Majority Lenders).
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation, legalisation or registration.
"Availability Period" means the period from and including the date of
this Agreement to and including 31 August 2020.
"Available Commitment" means a Lender's Commitment minus:
|
(a) |
the amount of its participation in the outstanding Loan; and |
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in the Loan that is due to be made on or before the proposed Utilisation Date. |
"Available Facility" means the aggregate for the time being of each
Lender's Available Commitment.
"Bail-In Action" means the exercise of any Write-down and Conversion
Powers.
"Bail-In Legislation" means:
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, 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 state other than such an EEA Member Country or the United Kingdom, 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. |
"Borrower" means Borrower A or Borrower B.
"Borrower A Collateral Guarantee" means a collateral guarantee to be granted by (i) Borrower A in favour of (ii) the Collateral
Security Agent in relation to the obligations of, amongst others, the Collateral Guarantor under the Collateral Facility Agreement.
"Borrower B Collateral Guarantee" means a collateral guarantee to be granted by (i) Borrower B in favour of (ii) the Collateral
Security Agent in relation to the obligations of, amongst others, the Collateral Guarantor under the Collateral Facility Agreement.
"Borrower Collateral Guarantee" means the Borrower A Collateral Guarantee or the Borrower B Collateral Guarantee.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London, New York and Athens.
"Cash" shall have the meaning given to such term in the Latest
Financial Statements.
"Charter" means, in relation to a Ship, or as the case may be the
Collateral Ship, any charter relating to that Ship or the Collateral Ship, or other contract for its employment, whether or not already in existence.
"Charter Assignment" means the assignment creating Security over any
Charter which exceeds 13 months (including any optional extensions and any redelivery allowance) and any Charter Guarantee in agreed form.
"Charter Guarantee" means any guarantee, bond, letter of credit or
other instrument (whether or not already issued) supporting a Charter.
"Code" means the US Internal Revenue Code of 1986.
"Collateral Account Security" means a document creating second priority
Security over the Collateral Earnings Account in agreed form.
"Collateral Earnings Account" means:
|
(a) |
an account in the name of the Collateral Guarantor with the Account Bank designated "Lord Ocean Navigation Co. – USD Earnings Account"; or |
|
(b) |
any other account in the name of the Collateral Guarantor with the Account Bank which may, with the prior written consent of the Facility Agent, be opened in the place of the account referred to in paragraph (a)
above, irrespective of the number or designation of such replacement account; or |
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above. |
"Collateral Event of Default" has the meaning given to the term "Event of Default" in the Collateral Facility Agreement.
"Collateral Facility Agreement" means the facility agreement dated 11 June
2018 (as amended and restated pursuant to the Collateral Facility Amendment and Restatement Deed) and made between, amongst others, (i) the Collateral Guarantor as borrower, (ii) the Guarantor as guarantor, (iii) the Facility Agent as facility agent
and (iv) the Collateral Security Agent as security agent.
"Collateral Facility Amendment and Restatement Deed" means the resignation, appointment, amendment and restatement deed dated 15 July 2020 and made between amongst others, (i) the
Collateral Guarantor as borrower, (ii) the Guarantor as guarantor, (iii) the Facility Agent as successor facility agent and (iv) the Collateral Security Agent as successor security agent.
"Collateral Finance Parties" has the meaning given to the term "Finance Parties" in the Collateral Facility Agreement
"Collateral General Assignment" means a second priority general assignment in respect of the Collateral Ship creating Security over its
Earnings, Insurances and any Requisition Compensation in agreed form.
"Collateral Guarantee" means a collateral guarantee to be granted by the Collateral Guarantor in favour of the Security Agent, in
relation to the obligations of, amongst others, the Borrowers under this Agreement and the other Finance Documents in the agreed form.
"Collateral Guarantor" means Lord Ocean Navigation Co., a corporation incorporated in the Republic of Liberia whose registered address
is at 80 Broad Street, Monrovia, Liberia.
"Collateral Intercreditor Agreement" means the intercreditor agreement
to be entered into between, amongst others, (i) the Collateral Guarantor and the Guarantor as debtors, (ii) the Collateral Security Agent as senior security agent and (iii) the Security Agent as junior security agent.
"Collateral Manager's Undertaking" means, in relation to an Approved Manager, a second priority letter of undertaking from that
Approved Manager subordinating the rights of that Approved Manager against the Collateral Ship and the Collateral Guarantor to the rights of the Finance Parties in agreed form.
"Collateral Mortgage" means the second priority or, as the case may be, preferred ship mortgage on the Collateral Ship under the
jurisdiction of the relevant Approved Flag (together with, if applicable, the deed of covenants collateral thereto), each in agreed form.
"Collateral Security Agent" has the meaning given to the term "Security Agent" in the Collateral Facility Agreement.
"Collateral Security Documents" means the Collateral Guarantee, the Collateral Account Security, the Collateral General Assignment,
each Collateral Manager's Undertaking, the Collateral Mortgage and the Collateral Shares Security.
"Collateral Shareholder" means Emperor Holding Ltd., a corporation incorporated in the Republic of the Marshall Islands whose address office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, the Republic of the Marshall Islands.
"Collateral Shares Security" means a document to be executed by the
Collateral Shareholder creating second priority Security over the shares in the Collateral Guarantor in agreed form.
"Collateral Ship" means the 2010-built Capesize bulk carrier type of vessel of approximately 179,000 deadweight, having IMO Number
9519066 and registered in the name of the Collateral Guarantor under the Liberian flag with the name "LORDSHIP".
"Commercial Management Agreement" means, in relation to a Ship, or as
the case may be the Collateral Ship, the agreement entered into between a Borrower or Collateral Guarantor which is the owner of that Ship or Collateral Ship and the Approved Commercial Manager regarding the commercial management of that Ship, or as
the case may be, the Collateral Ship.
"Commitment" means:
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part B of Schedule 1 (The Parties) and the amount of any other Commitment transferred to it under this Agreement; and |
|
(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement, |
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Compliance Certificate" means a certificate in the form set out in Schedule 9 (Form of Compliance Certificate) or in any other form agreed between the Guarantor and the Facility Agent
"Confidential Information" means all information relating to any
Transaction Obligor, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming
a Finance Party under, the Finance Documents or the Facility from either:
|
(a) |
any Transaction Obligor or any of its advisers; or |
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Transaction Obligor or any of its advisers, |
in whatever form, and includes information given orally and any document, electronic file or any other
way of representing or recording information which contains or is derived or copied from such information but excludes:
|
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 43 (Confidential
Information); or |
|
(B) |
is identified in writing at the time of delivery as non-confidential by any Transaction Obligor or any of its advisers; or |
|
(C) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with a Transaction
Obligor and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. |
"Confidentiality Undertaking" means a confidentiality undertaking in
substantially the appropriate form recommended by the LMA from time to time or in any other form agreed between the Borrowers and the Facility Agent.
"Corresponding Debt" means any amount, other than any Parallel Debt,
which an Obligor owes to a Secured Party under or in connection with the Finance Documents.
"Deed of Release" means a deed releasing the Existing Security and the undertakings, obligations and liabilities (including any
indemnities) of the Borrowers in connection with the Existing Indebtedness in a form acceptable to the Facility Agent (acting on the instructions of the Majority Lenders).
"Default" means an Event of Default or a Potential Event of Default.
"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
"Dispute" has the meaning given to it in Clause 46.1 (Jurisdiction).
"Disruption Event" means either or both of:
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or
otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties or, if applicable, any Transaction Obligor; or |
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party or, if applicable, any Transaction Obligor preventing that,
or any other, Party or, if applicable, any Transaction Obligor: |
|
(i) |
from performing its payment obligations under the Finance Documents; or |
|
(ii) |
from communicating with other Parties or, if applicable, any Transaction Obligor in accordance with the terms of the Finance Documents, |
and which (in either such case) is not caused by, and is beyond the control of, the Party or, if applicable, any Transaction Obligor whose operations are
disrupted.
"Document of Compliance" has the meaning given to it in the ISM Code.
"dollars" and "$"
mean the lawful currency, for the time being, of the United States of America.
"Earnings" means, in relation to a Ship, or as the case may be, the
Collateral Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to a Borrower or the Collateral Guarantor or the Security Agent and which arise out of or in connection with or relate to the use or operation of
that Ship, or, as the case may be, the Collateral Ship, including (but not limited to):
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders), pooled or shared with any other person: |
|
(i) |
all freight, hire and passage moneys including, without limitation, all moneys payable under, arising out of or in connection with a Charter or a Charter Guarantee; |
|
(ii) |
the proceeds of the exercise of any lien on sub-freights; |
|
(iii) |
compensation payable to a Borrower or, as the case may be, the Collateral Owner or the Security Agent in the event of requisition of that Ship, or as the case may be, the Collateral Ship for hire or use; |
|
(iv) |
remuneration for salvage and towage services; |
|
(v) |
demurrage and detention moneys; |
|
(vi) |
without prejudice to the generality of sub-paragraph (i) above, damages for breach (or payments for variation or termination) of any
charterparty or other contract for the employment of that Ship or, as the case may be, the Collateral Ship; |
|
(vii) |
all moneys which are at any time payable under any Insurances in relation to loss of hire; |
|
(viii) |
all monies which are at any time payable to a Borrower or, as the case may be, the Collateral Owner in relation to general average contribution; and |
|
(b) |
if and whenever that Ship or, as the case may be the Collateral Ship is employed on terms whereby any moneys falling within sub-paragraphs (i)
to (viii) of paragraph (a) above are pooled or shared with any other person,
that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship or, as the case may be the Collateral Ship. |
"Earnings Account" means in relation to a Borrower:
|
(a) |
an account in the name of that Borrower with the Account Bank designated "[Earnings Account]"; or |
|
(b) |
any other account in the name of a Borrower with the Account Bank which may, with the prior written consent of the Facility Agent, be opened in the place of the account referred to in paragraph (a) above,
irrespective of the number or designation of such replacement account; or |
|
(c) |
any sub-account of any account referred to in paragraphs (a) or (b) above. |
"EEA Member Country" means any member state of the European Union,
Iceland, Liechtenstein and Norway.
"Environmental Approval" means any present or future permit, ruling,
variance or other Authorisation required under Environmental Laws.
"Environmental Claim" means any claim by any governmental, judicial or
regulatory authority or any other person which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law and, for this purpose, "claim"
includes a claim for damages, compensation, contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-up and removal, whether or not similar to the foregoing; an order or direction to take, or
not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.
"Environmental Incident" means:
|
(a) |
any release, emission, spill or discharge of Environmentally Sensitive Material whether within a Ship or, as the case may be the Collateral Ship or from a Ship or, as the case may be the Collateral Ship into any
other vessel or into or upon the air, sea, land or soils (including the seabed) or surface water; or |
|
(b) |
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than a Ship
or, as the case may be the Collateral Ship and which involves a collision between a Ship or, as the case may be the Collateral Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which
a Ship or, as the case may be the Collateral Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or a Ship and/or any Transaction Obligor and/or any operator or manager of a Ship or, as the case may be the
Collateral Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or |
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from a Ship
or, as the case may be the Collateral Ship and in connection with which a Ship or, as the case may be the Collateral Ship is actually or potentially liable to be arrested and/or where any Transaction Obligor and/or any operator or manager of a
Ship or, as the case may be the Collateral Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval. |
"Environmental Law" means any present or future law relating to
pollution or protection of human health or the environment, to conditions in the workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened releases of
Environmentally Sensitive Material.
"Environmentally Sensitive Material" means and includes all
contaminants, oil, oil products, toxic substances and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor thereto.
"ERISA Affiliate" means each person (and defined in Section 3(9) of
ERISA) which together with any Borrower would be deemed to be a "single employer" within the meaning of Section 414(b), (c), (m) or (o) of the Code.
"EU Bail-In Legislation Schedule" means the document described as such
and published by the Loan Market Association (or any successor person) from time to time.
"Event of Default" means any event or circumstance specified as such in
Clause 26 (Events of Default).
"Existing Facility Agent" has the meaning given to the term "Agent" in
the Existing Facility Agreement.
"Existing Facility Agreement" means the facility agreement dated 1
September 2015 (as amended and/or supplemented by a supplemental letter dated 16 May 2016, a supplemental letter dated 23 February 2017, a supplemental agreement dated 28 March 2018 and as further amended and/or supplemented by a second supplemental
agreement dated 1 April 2019) and entered into between, amongst other, the Borrowers as joint and several borrowers, (ii) Hamburg Commercial Bank AG as lender and (iii) the Existing Facility Agent, to finance, among others, the acquisition of the
Ships.
"Existing Indebtedness" means, at any date, any outstanding Financial
Indebtedness on that date under or in connection with the Existing Facility Agreement.
"Existing Lender" has the meaning given to it in Clause 27.1
(Assignments and transfers by the Lenders).
"Existing Security" means any Security created to secure the Existing
Indebtedness (or any part thereof) under the Existing Facility Agreement.
"Facility" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to
the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 5 Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.
"FATCA" means:
|
(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. |
"FATCA Application Date" means:
|
(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; or |
|
(b) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first
date from which such payment may become subject to a deduction or withholding required by FATCA. |
"FATCA Deduction" means a deduction or withholding from a payment under
a Finance Document required by FATCA.
"FATCA Exempt Party" means a Party that is entitled to receive payments
free from any FATCA Deduction.
"Fee Letter" means any letter or letters dated on or about the date of
this Agreement between any of the Facility Agent, the Security Agent and any Obligor setting out any of the fees referred to in Clause 10.2 (Agency fee).
"Fidelity Marine" means Fidelity Marine Inc., a corporation incorporated and existing under the laws of the Republic of the Marshall
Islands whose registered address is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands.
"Finance Document" means:
|
(b) |
the Utilisation Request; |
|
(c) |
the Intercreditor Agreement; |
|
(d) |
the Collateral Intercreditor Agreement; |
|
(e) |
any Security Document; |
|
(f) |
any Collateral Security Documents; |
|
(g) |
any Subordination Agreement; |
|
(i) |
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or |
|
(j) |
any other document designated as such by the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrowers. |
"Finance Party" means the Facility Agent, the Security Agent or a
Lender.
"Financial Indebtedness" means any indebtedness for or in relation to:
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; |
|
(d) |
the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability; |
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); |
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing; |
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market
value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account); |
|
(h) |
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and |
|
(i) |
the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above. |
"Fleet Vessels" means the vessels from time to time owned by the members of the Group and "Fleet Vessel" means any of them.
"GAAP" means generally accepted accounting principles in the US
including IFRS.
"General Assignment" means, in relation to a Ship, the general
assignment creating Security over that Ship's Earnings, its Insurances and any Requisition Compensation in relation to that Ship, in agreed form.
"Group" means the Guarantor and its Subsidiaries from time to time,
including, without limitation, the Borrowers.
"Holding Company" means, in relation to a person, any other person in
relation to which it is a Subsidiary.
"IFRS" means international accounting standards within the meaning of
the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
"Indemnified Person" means:
|
(a) |
for the purposes of Clause 13.2 (Other indemnities), each Finance Party, each Affiliate of a Finance Party and each officer or
employee of a Finance Party or its Affiliate; |
|
(b) |
for the purposes of Clause 13.3 (Indemnity to the Facility Agent), the Facility Agent, each Affiliate of the Facility Agent
and each director, officer and employee; and |
|
(c) |
for the purposes of Clause 13.4 (Indemnity to the Security Agent), the Security Agent and every Receiver and Delegate, each
Affiliate of the Security Agent, Receiver and Delegate and each director, officer and employee. |
"Initial Market Value" means, in relation to a Ship, the Market Value of that Ship determined pursuant to the valuation(s) relative
thereto referred to in paragraph 4.5 of Part B of Schedule 2 (Conditions Precedent).
"Insurances" means, in relation to a Ship or, as the case may be the
Collateral Ship:
|
(a) |
all policies and contracts of insurance, including entries of that Ship or, as the case may be the Collateral Ship in any protection and indemnity or war risks association, effected in relation to that Ship, or, as
the case may be the Collateral Ship, its Earnings or otherwise in relation to that Ship or, as the case may be the Collateral Ship whether before, on or after the date of this Agreement; and |
|
(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium and any rights in relation to any claim whether or not the relevant
policy, contract of insurance or entry has expired on or before the date of this Agreement. |
"Intercreditor Agreement" means the intercreditor agreement to be
entered into between, amongst others, (i) the Borrowers and the Guarantor as debtors, (ii) the Security Agent as senior security agent and (iii) the Collateral Security Agent as junior security agent.
"Interest Payment Date" has the meaning given to it in Clause 8.2 (Payment of interest).
"Interest Rate" means 10.50 per cent. per annum.
"Interest Period" means, in relation to the Loan or any part of the
Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).
"ISM Code" means the International Safety Management Code for the Safe
Operation of Ships and for Pollution Prevention (including the guidelines on its implementation), adopted by the International Maritime Organisation, as the same may be amended or supplemented from time to time.
"ISPS Code" means the International Ship and Port Facility Security
(ISPS) Code as adopted by the International Maritime Organization's (IMO) Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.
"ISSC" means an International Ship Security Certificate issued under
the ISPS Code.
"Latest Financial Statements" means, as at the date of calculation, the annual audited or quarterly unaudited (as the case may be) the
Guarantor is obliged to deliver to the Facility Agent pursuant to Clause 20.2 (Financial statements).
"Lender" means:
|
(a) |
any Original Lender; and |
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 27 (Changes to the
Lenders), |
which in each case has not ceased to be a Party in accordance with this Agreement.
"LMA" means the Loan Market Association or any successor organisation.
"Loan" means the loan to be made available under the Facility or the
aggregate principal amount outstanding for the time being of the borrowings under the Facility and a "part of the Loan" means a Tranche or any other part of the Loan as the context may require.
"Major Casualty" means any casualty to a Ship, or, as the case may be
the Collateral Ship in relation to which the claim or the aggregate of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $750,000 or the equivalent in any other currency.
"Majority Lenders" means:
|
(a) |
if the Loan has not yet been advanced, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments; or |
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66⅔ per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or
Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66⅔ per cent. of the Loan immediately before such repayment. |
"Make-Whole Period" means the period commencing 15 months after the
Utilisation Date and ending three months thereafter.
"Management Agreement" means the Technical Management Agreement or the
Commercial Management Agreement.
"Manager's Undertaking" means, in relation to an Approved Manager, a
letter of undertaking from that Approved Manager subordinating the rights of that Approved Manager against a Ship and the relevant Borrower to the rights of the Finance Parties in agreed form.
"Market Value" means, in relation to a Ship or any other vessel, at any
date, an amount equal to the market value of that Ship or vessel shown by one valuation at the cost of the Borrowers each prepared:
|
(a) |
as at a date not more than 30 days previously; |
|
(b) |
by an Approved Valuer (appointed by the Borrower and addressed to the Facility Agent); |
|
(c) |
with or without physical inspection of that Ship or vessel (as the Facility Agent (acting on the instructions of the Majority Lenders) may require); and |
|
(d) |
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any Charter |
Provided that, if the Facility Agent does not agree with the Market Value of that Ship determined by such sole valuation, it may obtain
a second valuation of that Ship or any other vessel over which additional Security has been created in accordance with Clause 24.2 (Provision of additional security; prepayment), from one Approved Valuer selected and appointed by the Facility
Agent and the Market Value of that Ship or such other vessel shall be the arithmetic mean of such two valuations, (with the arithmetic mean of any range to apply, if an Approved Valuer gives a range).
"Material Adverse Effect" means in the reasonable opinion of the
Majority Lenders a material adverse effect on:
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any Obligor or Obligors as a whole; or |
|
(b) |
the ability of any Obligor to perform its obligations under any Finance Document; or |
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents. |
"Maximum Tranche Amount" means, in respect of:
|
(a) |
Tranche A, $6,500,000 ("Maximum Tranche A Amount"); and |
|
(b) |
Tranche B, $16,000,000 ("Maximum Tranche B Amount"). |
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month, except that:
|
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; |
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
|
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. |
The above rules will only apply to the last Month of any period.
"Mortgage" means, in relation to a Ship, the first priority or
preferred (as applicable) ship mortgage on a Ship and, if applicable, the deed of covenant collateral thereto, in agreed form.
"New Lender" has the meaning given to it in Clause 27.1
(Assignments and transfers by the Lenders).
"Non-Call Period" means the period commencing on the Utilisation Date and ending on the date falling 18 months after the Utilisation
Date (inclusive).
"Notes" means, as at the date of calculation, the aggregate outstanding
amount of certain notes issued or to be issued by the Guarantor to its shareholders and held or to be held by those shareholders in exchange for loan made by those shareholders to the Guarantor which have been or are to be, on-lent to the Borrowers and
other members of the Group to assist them with their working capital requirements.
"Obligor" means the Borrower or the Guarantor.
"OFAC" means the Office of Foreign Assets Control of the US Department
of Treasury.
"Original Financial Statements" means the Guarantor’s audited
consolidated financial statements for its financial year which ended 31 December 2019.
"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date
of this Agreement.
"Overseas Regulations" means the Overseas Companies Regulations 2009
(SI 2009/1801).
"Parallel Debt" means any amount which an Obligor owes to the Security
Agent under Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent)) or under that clause as incorporated by reference or in full in any other Finance
Document.
"Participating Member State" means any member state of the European
Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
"Party" means a party to this Agreement.
"Payment Date" has the meaning given to it in Clause 10.3
(Deferred Fee).
"Perfection Requirements" means the making or procuring of filings, stampings, registrations, notarisations, endorsements, translations
and/or notifications of any Finance Document (and/or any Security created under it) necessary for the validity, enforceability (as against the relevant Obligor or any relevant third party) and/or perfection of that Finance Document.
"PATRIOT Act" means the United States Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Improvement and Reauthorization Act of 2005 (H.R. 3199).
"Permitted Charter" means, in relation to a Ship, a Charter:
|
(a) |
which is a time, voyage or consecutive voyage charter; |
|
(b) |
the duration of which does not exceed 13 months (including any optional extensions and any redelivery allowance); |
|
(c) |
which is entered into on bona fide arm's length terms at the time at which that Ship is fixed; and |
|
(d) |
in relation to which not more than two months' hire is payable in advance, |
and any other Charter which is approved in writing by the Facility Agent acting with the authorisation of the Majority Lenders.
"Permitted Financial Indebtedness" means:
|
(a) |
any Financial Indebtedness incurred under the Finance Documents; |
|
(b) |
until the Utilisation Date, the Existing Indebtedness; |
|
(c) |
any Financial Indebtedness incurred under a Borrower Collateral Guarantee or any Second Priority Security Document; and |
|
(d) |
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents in a manner satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders). |
"Permitted Security" means:
|
(a) |
Security created by the Finance Documents; |
|
(b) |
until the Utilisation Date, the Existing Security; |
|
(c) |
Security created in favour of the Collateral Security Agent pursuant to the Second Priority Security Documents; |
|
(d) |
any netting or set-off arrangement entered into by any Transaction Obligor in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances; |
|
(e) |
liens for unpaid master's and crew's wages in accordance with first class ship ownership and management practice; |
|
(g) |
liens for master's disbursements incurred in the ordinary course of trading; |
|
(h) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Ship and not as a result of any default or omission by the relevant Borrower, provided such
liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 23.15 (Restrictions on chartering, appointment of managers etc.); |
|
(i) |
Security arising by operation of law in respect of Taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have
been made; and |
|
(j) |
any Security created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where a Borrower is actively prosecuting or defending such proceedings or arbitration in
good faith. |
"Plan" means any "employee benefit plan" as defined in Section 3(3) of
ERISA that is subject to Title IV of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed to by any Obligor or any of their respective ERISA Affiliates.
"Potential Event of Default" means any event or circumstance specified
in Clause 26 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents
or any combination of any of the foregoing) be an Event of Default.
"Prepayment Date" has the meaning given to it in Clause 10.4
(Make-whole prepayment fee).
"Prohibited Person" means any person (whether designated by name or by
reason of being included in a class of persons) against whom Sanctions are directed.
"Protected Party" has the meaning given to it in Clause 11.1 (Definitions).
"Receiver" means a receiver or receiver and manager or administrative
receiver of the whole or any part of the Security Assets.
"Related Fund" in relation to a fund (the "first fund"), means a
fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate
of the investment manager or investment adviser of the first fund.
"Relevant Amount" has the meaning given to it in Clause 7.4 (Mandatory prepayment on sale or Total Loss).
"Relevant Date" has the meaning given to it in Clause 7.4
(Mandatory prepayment on sale or Total Loss).
"Relevant Jurisdiction" means, in relation to a Transaction Obligor:
|
(a) |
its Original Jurisdiction; |
|
(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is situated; |
|
(c) |
any jurisdiction where it conducts its business; and |
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it. |
"Relevant Percentage" has the meaning given to it in Clause 24.1
(Minimum required security cover).
"Repayment Date" means each date on which a Repayment Instalment is
required to be paid under Clause 6.1 (Repayment of Loan).
"Repayment Instalment" has the meaning given to it in Clause 6.1 (Repayment of Loan).
"Repayment Schedule" means the loan amortisation schedule in respect of
the Loan set out in Schedule 6 (Repayment Schedule).
"Repeating Representation" means each of the representations set out in
Clause 18 (Representations) except Clause 18.10 (Insolvency), Clause 18.11 (No filing or stamp taxes), Clause 18.12 (Deduction of Tax), Clause 18.13 (No default), Clause 18.16 (Pari passu ranking), Clause 18.17 (No proceedings pending or threatened) and Clause 18.20 (No Charter)
and any representation of any Transaction Obligor made in any other Finance Document that is expressed to be a "Repeating Representation" or is otherwise expressed to be repeated.
"Representative" means any delegate, agent, manager, administrator,
nominee, attorney, trustee or custodian.
"Requisition" means, in relation to a Ship or, as the case may be the
Collateral Ship:
|
(a) |
any expropriation, confiscation, requisition (excluding a requisition for hire or use which does not involve a requisition for title) or acquisition of that Ship, or, as the case may be the Collateral Ship, whether
for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected (whether de jure or de facto) by any government or official authority or by any person or
persons claiming to be or to represent a government or official authority; and |
|
(b) |
any capture or seizure of that Ship or, as the case may be the Collateral Ship, (including any hijacking or theft) by any person whatsoever. |
"Requisition Compensation" includes all compensation or other moneys
payable to a Borrower or the Collateral Owner by reason of any Requisition or any arrest or detention of a Ship or, as the case may be the Collateral Ship, in the exercise or purported exercise of any lien or claim.
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"Safety Management Certificate" has the meaning given to it in the ISM
Code.
"Safety Management System" has the meaning given to it in the ISM Code.
"Sanctions" means any sanctions, embargoes, freezing provisions,
prohibitions or other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing):
|
(a) |
imposed by law or regulation of the United Kingdom, the Council of the European Union, the European Union, the member states of the European Union, the United Nations or its Security Council or the United States of
America regardless of whether the same is or is not binding on any Transaction Obligor; or |
|
(b) |
otherwise imposed by any law or regulation binding on a Transaction Obligor or to which a Transaction Obligor is subject (which shall include without limitation, any extra-territorial sanctions imposed by law or
regulation of the United States of America). |
"Seanergy Management" means Seanergy Management Corp., a corporation incorporated and existing under the laws of the Republic of the
Marshall Islands whose registered address is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands.
"Second Account Security" means, in relation to each Earnings Account, a document creating second priority Security in favour of the
Collateral Security Agent.
"Second Charter Assignment" means the assignment creating second priority Security over any Charter which exceeds 13 months (including
any optional extensions and any redelivery allowance) and any Charter Guarantee in favour of the Collateral Security Agent.
"Second General Assignment" means, in relation to a Ship, the second
priority general assignment creating Security over that Ship's Earnings, its Insurances and any Requisition Compensation in relation to that Ship, to be entered into by the relevant Borrower and the Collateral Security Agent in relation to the
obligations of that Borrower under the Borrower Collateral Guarantee to which it is a party.
"Second Manager's Undertaking" means, in relation to an Approved Manager, a second priority letter of undertaking from that Approved
Manager subordinating the rights of that Approved Manager against a Ship and the relevant Borrower to the rights of the Collateral Finance Parties.
"Second Mortgage" means, in relation to a Ship, the second priority or
preferred (as applicable) ship mortgage on that Ship and, if applicable, the deed of covenant collateral thereto to be executed by the relevant Borrower in favour of the Collateral Security Agent in relation to the obligations of that Borrower under
the Borrower Collateral Guarantee to which it is a party.
"Second Priority Security Documents" means the Second Account Security, any Second Charter Assignment, each Second General Assignment,
each Second Manager's Undertaking, each Second Mortgage and each Second Shares Security.
"Second Shares Security" means, in relation to a Borrower, a document to be executed by the Guarantor creating second priority Security
over the shares in that Borrower in favour of the Collateral Security Agent.
"Secured Liabilities" means all present and future obligations and
liabilities, (whether actual or contingent and whether owed jointly or severally or in any other capacity whatsoever) of each Transaction Obligor to any Secured Party under or in connection with each Finance Document.
"Secured Party" means each Finance Party from time to time party to
this Agreement, a Receiver or any Delegate.
"Security" means a mortgage, pledge, lien, charge, assignment,
hypothecation or security interest or any other agreement or arrangement having the effect of conferring security.
"Security Assets" means all of the assets of the Transaction Obligors
which from time to time are, or are expressed to be, the subject of the Transaction Security.
"Security Document" means:
|
(c) |
any General Assignment; |
|
(d) |
any Charter Assignment; |
|
(e) |
the Account Security; |
|
(f) |
any Manager's Undertaking; |
|
(g) |
any Subordinated Debt Security; |
|
(h) |
any other document (whether or not it creates Security) which is executed as security for the Secured Liabilities; or |
|
(i) |
any other document designated as such by the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrowers. |
"Security Period" means the period starting on the date of this
Agreement and ending on the date on which the Facility Agent (acting on the instructions of the Majority Lenders) is satisfied that there is no outstanding Commitment in force and that the Secured Liabilities have been irrevocably and unconditionally
paid and discharged in full.
"Security Property" means:
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security; |
|
(b) |
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction
Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties; |
|
(c) |
the Security Agent's interest in any turnover trust created under the Finance Documents; |
|
(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust
for the Secured Parties, |
except:
|
(i) |
rights intended for the sole benefit of the Security Agent; and |
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent (acting on the instructions of the Majority Lenders) or (being entitled to do so) has retained in accordance with the
provisions of this Agreement. |
"Servicing Party" means the Facility Agent or the Security Agent.
"Shares Security" means, in relation to a Borrower, a document to be
executed by the Guarantor creating Security over the shares in that Borrower in agreed form.
"Ship" means Ship A or Ship B.
"Ship A" means the 2004-built Capesize bulk carrier type of vessel with
the name "GLORIUSHIP" details of which are set out opposite its name in Schedule 7 (Details of the Ships).
"Ship B" means the 2010-built Capesize bulk carrier type of vessel with
the name "GENIUSHIP" details of which are set out opposite its name in Schedule 7 (Details of the Ships).
"Specified Time" means a day or time determined in accordance with Schedule 8 (Timetables).
"Subordinated Creditor" means:
|
(a) |
a Transaction Obligor; or |
|
(b) |
any other person who becomes a Subordinated Creditor in accordance with this Agreement. |
"Subordinated Debt Security" means a document creating Security
(including, without limitation, by way of an assignment) in relation to any Subordinated Liabilities entered into or to be entered into by a Subordinated Creditor in favour of the Security Agent in an agreed form.
"Subordinated Finance Document" means:
|
(a) |
a Subordinated Loan Agreement; and |
|
(b) |
any other document relating to or evidencing a Subordinated Creditor. |
"Subordinated Liabilities" means all indebtedness owed or expressed to
be owed by any Borrower to a Subordinated Creditor whether under the Subordinated Finance Documents or otherwise.
"Subordinated Loan Agreement" means any loan agreement made or to be
made between (i) any Borrower and (ii) a Subordinated Creditor.
"Subordination Agreement" means a subordination agreement entered into
or to be entered into by (i) a Subordinated Creditor, (ii) a Borrower and (iii) the Security Agent in agreed form.
"Subsidiary" means a subsidiary within the meaning of section 1159 of
the Companies Act 2006.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
"Tax Credit" has the meaning given to it in Clause 11.1 (Definitions).
"Tax Deduction" has the meaning given to it in Clause 11.1 (Definitions).
"Tax Payment" has the meaning given to it in Clause 11.1 (Definitions).
"Technical Management Agreement" means, in relation to a Ship or, as
the case may be the Collateral Ship the agreement entered into between a Borrower or Collateral Guarantor which is the owner of that Ship or, as the case may be the Collateral Ship, and the Approved Technical Manager regarding the technical management
of that Ship or, as the case may be the Collateral Ship.
"Termination Date" means the date falling on the fifth anniversary of
the Utilisation Date.
"Third Parties Act" has the meaning given to it in Clause 1.5 (Third party rights).
"Total Commitments" means the aggregate of the Commitments, being
$22,500,000 at the date of this Agreement.
"Total Loss" means, in relation to a Ship or, as the case may be,
Collateral Ship:
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of that Ship or, as the case may be, Collateral Ship; or |
|
(b) |
any Requisition of that Ship or, as the case may be, Collateral Ship unless that Ship or, as the case may be, Collateral Ship is returned to the full control of the relevant Borrower within 90 days of such
Requisition (or such later period agreed by the Facility Agent acting on the instructions of the Majority Lenders). |
"Total Loss Date" means, in relation to the Total Loss of a Ship:
|
(a) |
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of; |
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of that Ship the earlier of: |
|
(i) |
the date on which a notice of abandonment is given to the insurers; and |
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the relevant Borrower with that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and |
|
(c) |
in the case of any other type of Total Loss, the date (or the most likely date) on which it appears to the Majority Lenders that the event constituting the total loss occurred. |
"Tranche" means Tranche A or Tranche B.
"Tranche A" means that part of the Loan made or to be made available to
the Borrowers to refinance the Existing Indebtedness in respect of Ship A in the principal amount specified in paragraph (b) of Clause 5.3 (Currency and amount) or, as the case may be, the principle amount outstanding from time to time under that Tranche.
"Tranche B" means that part of the Loan made or to be made available to
the Borrowers to refinance the Existing Indebtedness in respect of Ship B in the principal amount specified in paragraph (c) of Clause 5.3 (Currency and amount) or, as the case may be, the principle amount outstanding from time to time under that Tranche.
"Transaction Document" means:
|
(b) |
a Subordinated Finance Document; |
|
(d) |
any other document designated as such by the Facility Agent and the Borrowers. |
"Transaction Obligor" means an Obligor, the Collateral Guarantor, the
Collateral Shareholder any Approved Manager (other than Fidelity Marine (for so long it is not a member of the Group) and V.Ships) or any other person (except a Finance Party) who executes a Transaction Document.
"Transaction Security" means the Security created or evidenced or
expressed to be created or evidenced under the Security Documents.
"Transfer Certificate" means a certificate in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the parties to such certificate.
"Transfer Date" means, in relation to an assignment or a transfer, the
later of:
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and |
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate. |
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements
Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutes or their affiliates
(otherwise than through liquidation, administration or other insolvency proceedings).
"UK Establishment" means a UK establishment as defined in the Overseas
Regulations.
"Unpaid Sum" means any sum due and payable but unpaid by a Transaction
Obligor under the Finance Documents.
"US" means the United States of America.
"US Tax Obligor" means:
|
(a) |
a person which is resident for tax purposes in the US; or |
|
(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes. |
"Utilisation" means the utilisation of the Facility.
"Utilisation Date" means the date of the Utilisation, being the date on
which the Loan is to be advanced.
"Utilisation Request" means a notice substantially in the form set out
in Schedule 3 (Requests).
"VAT" means:
|
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and |
|
(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere. |
"V.Ships" means V.Ships Limited, a corporation incorporated and existing under the laws of Cyprus whose registered office is at Zenas
Gunther, 16-18, Agia Triada, 3035 Limassol, Cyprus.
"Write-down and Conversion Powers" means:
|
(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; |
|
(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; and |
|
(c) |
in relation to any UK Bail-In Legislation: |
|
(i) |
any powers under that UK 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 UK Bail-In
Legislation that are related to or ancillary to any of those powers; and |
|
(ii) |
any similar or analogous powers under that UK Bail-In Legislation. |
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to: |
|
(i) |
the "Account Bank", any "Borrower", the "Facility Agent", any "Finance Party", any "Lender", any "Obligor",
any "Party", any "Secured Party", the "Security
Agent", any "Transaction Obligor" or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees
to, or of, its rights and/or obligations under the Finance Documents; |
|
(ii) |
"assets" includes present and future properties, revenues and rights of every description; |
|
(iii) |
a liability which is "contingent" means a liability which is not certain to arise and/or the amount of which remains unascertained; |
|
(iv) |
"document" includes a deed and also a letter, fax, email or telex; |
|
(v) |
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT; |
|
(vi) |
a "Finance Document", a "Security Document" or "Transaction Document" or any other agreement or instrument is a reference to that Finance Document, Security Document or Transaction Document or
other agreement or instrument as amended, novated, supplemented, extended or restated; |
|
(vii) |
a "group of Lenders" includes all the Lenders; |
|
(viii) |
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; |
|
(ix) |
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the
United States of America, the United Nations or its Security Council; |
|
(x) |
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure; |
|
(xi) |
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having
separate legal personality); |
|
(xii) |
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department
or regulatory, self-regulatory or other authority or organisation; |
|
(xiii) |
a provision of law is a reference to that provision as amended or re-enacted; |
|
(xiv) |
a time of day is a reference to New York time unless specified to the contrary; |
|
(xv) |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be
deemed to include that which most nearly approximates in that jurisdiction to the English legal term; |
|
(xvi) |
words denoting the singular number shall include the plural and vice versa; and |
|
(xvii) |
"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used. |
|
(b) |
The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined
pursuant to the terms of this Agreement. |
|
(c) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents. |
|
(d) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in
this Agreement. |
|
(e) |
A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived. |
|
1.3 |
Construction of insurance terms |
In this Agreement:
"approved" means, for the purposes of Clause 22 (Insurance Undertakings), approved in writing by the Facility Agent (acting on the instructions of the Majority Lenders).
"excess risks" means the proportion of claims for general average,
salvage and salvage charges not recoverable under the hull and machinery policies in respect of a Ship or, as the case may be the Collateral Ship, in consequence of its insured value being less than the value at which a Ship or, as the case may be the
Collateral Ship, is assessed for the purpose of such claims.
"obligatory insurances" means, in relation to a Ship or, as the case
may be, the Collateral Ship all insurances effected, or which a Borrower or, as the case may be, the Collateral Owner, is obliged to effect under Clause 22 (Insurance
Undertakings) or any other provision of this Agreement or of another Finance Document.
"policy" includes a slip, cover note, certificate of entry or other
document evidencing the contract of insurance or its terms.
"protection and indemnity risks" means the usual risks covered by a
protection and indemnity association managed in London, 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 6 of the International Hull Clauses (1/11/02) (1/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/10/83) (1/11/95) or the Institute Amended Running Down Clause (1/10/71) or any equivalent
provision.
"war risks" includes the risk of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02 or 1/11/03),
clause 24 of the Institute Time Clauses (Hulls) (1/11/95) or clause 23 of the Institute Time Clauses (Hulls)(1/10/83).
|
1.4 |
Agreed forms of Finance Documents |
References in Clause 1.1 (Definitions) to any Finance Document being
in "agreed form" are to that Finance Document:
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrowers and the Facility Agent); or |
|
(b) |
in any other form agreed in writing between the Borrowers and the Facility Agent acting with the authorisation of the Majority Lenders or, where Clause 42.2 (All Lender matters) applies, all the Lenders. |
|
(a) |
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy
the benefit of any term of this Agreement. |
|
(b) |
Subject to Clause 42.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any
person who is not a Party is not required to rescind or vary this Agreement at any time. |
|
(c) |
Any Receiver, Delegate, Affiliate or for the purpose of Clause 13.2 (Other indemnities), Clause 13.3 (Indemnity to the Facility Agent) and Clause 13.4 (Indemnity to the Security Agent),
any Indemnified Person, or any other person described in paragraph (b) of Clause 29.10
(Exclusion of liability), or paragraph (b) of Clause 30.11 (Exclusion
of liability) may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of this Agreement which expressly
confers rights on it. |
|
1.6 |
Facility Agent and Security Agent |
|
(a) |
Where there is any reference in this Agreement or any other Finance Document to the Facility Agent or the Security Agent acting reasonably or properly, or doing an act or coming to a determination, opinion or belief
that is reasonable or proper, or any similar or analogous reference, the Facility Agent or, as applicable, the Security Agent shall, where they have sought such instructions from the Majority Lenders, be deemed to be acting reasonably and
properly or doing an act or coming to a determination, opinion or belief that is reasonable if, as applicable, the Facility Agent or Security Agent acts on the instructions of the Majority Lenders. Where there is in this Agreement or any other
Finance Document a provision to the effect that the Facility Agent or the Security Agent is not to unreasonably withhold or delay its consent or approval, it shall be deemed not to have so withheld or delayed its consent or approval if the
withholding or delay is caused by instructions being sought from the Majority Lenders and it is not unreasonable for the Majority Lenders to withhold or delay giving their consent or approval. |
|
(b) |
Any corporation into which the Facility Agent or Security Agent may be merged or converted, or any corporation with which the Facility Agent or Security Agent may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Facility Agent or Security Agent shall be a party, or any corporation, including affiliated corporations, to which the Facility Agent or Security Agent shall sell or otherwise transfer: |
|
(i) |
all or substantially all of its assets; or |
|
(ii) |
all or substantially all of its corporate trust business, |
shall, on such date on which any such merger, conversion, consolidation or transfer becomes effective and to the extent permitted by any
applicable laws and subject to any credit rating requirements set out in this Agreement become the successor Facility Agent or Security Agent under this Agreement without the execution or filing of any paper or any further act on the part of the
parties to this Agreement, unless otherwise required by the Lenders (acting reasonably), and after the said effective date all references in this Agreement to the Facility Agent or Security Agent shall be deemed to be references to such successor
corporation. Written notice of any such merger, conversion, consolidation or transfer shall promptly be given to the Borrower by the Facility Agent or Security Agent.
Section 2
The Facility
Subject to the terms of this Agreement, the Lenders make available to the Borrowers a senior dollar term loan facility in two Tranches, Tranche A and Tranche
B, in an aggregate amount not exceeding the Total Commitments.
|
2.2 |
Finance Parties' rights and obligations |
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party
under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. |
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from a Transaction Obligor is
a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of
each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of the Loan or any other amount owed by a Transaction Obligor which relates to a Finance Party's participation
in the Facility or its role under a Finance Document (including any such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Transaction Obligor. |
|
(c) |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents. |
Each Borrower shall apply all amounts borrowed by it under the Facility only for the purpose stated in the preamble (Background) to this Agreement.
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
No part of the proceeds of the Loan will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official
of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of
1977, as may be amended from time to time.
|
4 |
Conditions of Utilisation |
|
4.1 |
Initial conditions precedent |
The Borrowers may not deliver the Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in Part A of Schedule 2 (Conditions Precedent) in form and substance satisfactory to
the Facility Agent (acting on the instructions of the Majority Lenders).
|
4.2 |
Further conditions precedent |
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if:
|
(a) |
on the date of the Utilisation Request and on the proposed Utilisation Date and before the Loan is advanced: |
|
(i) |
no Default is continuing or would result from the proposed Loan; and |
|
(ii) |
the Repeating Representations to be made by each Transaction Obligor are true; |
|
(b) |
the Facility Agent has received on or before the Utilisation Date, or the Majority Lenders are satisfied they will receive when the Loan is made available, all of the documents and other evidence listed in Part B of
Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders). |
|
4.3 |
Notification of satisfaction of conditions precedent |
|
(a) |
The Facility Agent shall send to the Lenders all of the conditions precedent referred to in Clause 4.1 (Initial conditions
precedent) and Clause 4.2 (Further conditions precedent) which it has received. |
|
(b) |
Each Lender shall promptly confirm to the Facility Agent in writing that it is satisfied as to the satisfaction of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent). |
|
(c) |
The Facility Agent shall notify the Borrowers and the Lenders promptly upon receipt of those confirmations referred to in paragraph (b) above from all of the Lenders. |
|
(d) |
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (c) above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of
giving any such notification. |
|
4.4 |
Waiver of conditions precedent |
If the Majority Lenders, at their discretion, permit the Loan to be borrowed before any of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) or Clause 4.2 (Further conditions precedent)
has been satisfied, the Borrowers shall ensure that that condition is satisfied within ten Business Days after the Utilisation Date or such later date as the Facility Agent, acting with the authorisation of the Majority Lenders, may agree in writing
with the Borrowers.
Section 3
Utilisation
|
5.1 |
Delivery of Utilisation Request |
|
(a) |
The Borrowers may utilise the Facility by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time. |
|
(b) |
The Borrowers may not deliver more than one Utilisation Request. |
|
5.2 |
Completion of Utilisation Request |
|
(a) |
The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: |
|
(i) |
the proposed Utilisation Date is a Business Day within the Availability Period; |
|
(ii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and |
|
(iii) |
the proposed Interest Period complies with Clause 9 (Interest Periods). |
|
(b) |
Only one advance may be requested in the Utilisation Request. |
|
(a) |
The currency specified in the Utilisation Request must be dollars. |
|
(b) |
The amount of Tranche A must not exceed the Maximum Tranche A Amount. |
|
(c) |
The amount of Tranche B must not exceed the Maximum Tranche B Amount. |
|
(d) |
The amount of the Loan must be an amount which is not more than the Available Facility. |
|
5.4 |
Lenders' participation |
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in the Loan available by the Utilisation Date through its Facility Office. |
|
(b) |
The amount of each Lender's participation in the Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately before advancing the Loan. |
|
(c) |
Subject to receiving a Utilisation Request, the Facility Agent shall notify each Lender of the amount of the Loan and the amount of its participation in the Loan by the Specified Time. |
|
5.5 |
Cancellation of Commitments |
The Commitments in respect of any Tranche which are unutilised at the end of the Availability Period shall then be cancelled.
|
5.6 |
Retentions and payment to third parties |
Each Borrower irrevocably authorises the Facility Agent:
|
(a) |
to deduct from the proceeds of the Loan any fees then payable to the Finance Parties in accordance with Clause 10 (Fees), any
solicitors fees and disbursements together with any applicable VAT and any other items listed as deductible items in the Utilisation Request and to apply them in payment of the items to which they relate; and |
|
(b) |
on the Utilisation Date, to pay to, or for the account of, the Borrowers, the balance (after any deduction made in accordance with paragraph (a)
above) of the amounts which the Facility Agent receives from the Lenders in respect of the Loan. That payment shall be made: |
|
(i) |
to the account of the Existing Facility Agent which the Borrowers specify in the Utilisation Request; and |
|
(ii) |
in like funds as the Facility Agent received from the Lenders in respect of the Loan. |
|
5.7 |
Disbursement of Loan to third party |
Payment by the Facility Agent under Clause 5.6 (Retentions and payment
to third parties) to a person other than a Borrower shall constitute the advance of the Loan and each Borrower shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's participation
in the Loan.
|
5.8 |
Prepositioning of funds |
If, in respect of the Utilisation of the Loan, the Facility Agent (acting on the instructions of the Lenders), at the request of the Borrowers and on terms
acceptable to all the Lenders and the Borrowers, prepositions funds with any bank:
|
(a) |
the Lenders shall, prior to any such pre-positioning of funds, provide an instruction letter to the Facility Agent in form and substance acceptable to the Facility Agent; and |
|
(b) |
any such pre-positioning of funds shall constitute the advance of the Loan and the Borrowers shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's
participation in the Loan; and |
|
(c) |
shall, without duplication, indemnify each Finance Party against any costs, loss or liability it may incur in connection with such arrangement. |
Section 4
Repayment, Prepayment and Cancellation
|
(a) |
The Borrowers shall repay each Tranche by: |
|
(i) |
20 consecutive quarterly instalments, each in the amount specified in the Repayment Schedule (the "Instalments" and each an "Instalment"); and |
|
(ii) |
a balloon instalment in an amount equal to any part of that Tranche remaining outstanding on the Termination Date (each a "Balloon Instalment" and together with the Instalments, the "Repayment Instalments"
and each a "Repayment Instalment"), |
provided that if the aggregate amount of each Tranche advanced is less than the applicable Maximum Tranche Amount, each Repayment
Instalment of that Tranche shall be reduced pro rata by an amount equal to the undrawn amount.
|
(b) |
The First Repayment Instalment in respect of each Tranche shall be repaid on the date falling 3 Months after the Utilisation Date and the last one, together with the Balloon Instalment relevant to that Tranche shall
be paid on the Termination Date. |
On the Termination Date, the Borrowers shall additionally pay to the Facility Agent for the account of the Finance Parties all other sums then accrued and
owing under the Finance Documents.
No Borrower may re-borrow any part of the Facility which is repaid.
|
7 |
Prepayment and Cancellation |
|
(a) |
If it becomes unlawful in any applicable jurisdiction for a Lender, or an Affiliate of a Lender, for that Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its
participation in the Loan: |
|
(i) |
that Lender shall promptly notify the Facility Agent upon becoming aware of that event; |
|
(ii) |
upon the Facility Agent notifying the Borrowers, the Available Commitment of that Lender will be immediately cancelled; and |
|
(iii) |
the Borrowers shall prepay the Loan on the last day of the Interest Period for the Loan occurring after the Facility Agent has notified the Borrowers or, if earlier, the date specified by that Lender in the notice
delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participation prepaid. |
|
(b) |
Any partial prepayment or cancellation under this Clause 7.1 (Illegality) shall reduce the Repayment Instalments of each
Tranche proportionally by the amount prepaid or cancelled in pro rata. |
|
7.2 |
Automatic cancellation |
The unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which the Loan is made available.
|
7.3 |
Voluntary prepayment of Loan |
|
(a) |
Subject to paragraphs (b) and (c) below, the
Borrowers may, if they give the Facility Agent not less than 10 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the
amount of the Loan by a minimum amount of US$500,000 or a multiple of that amount). |
|
(b) |
The Borrowers may not prepay the Loan (in whole or in part) pursuant to this Clause 7.3 (Voluntary prepayment of Loan) before
the end of the Non-Call Period Provided however that the Borrowers may prepay a Tranche in whole during the Make-Whole Period subject to the Borrowers paying to the Lenders the Make-Whole Prepayment Fee payable pursuant to Clause 10.4 (Make-whole
Prepayment Fee) and any other prepayment fees payable pursuant to the terms of this Agreement. |
|
(c) |
Any partial prepayment made under this Clause 7.3 (Voluntary prepayment of Loan) shall reduce the Repayment Instalments of
each Tranche proportionally by the amount prepaid in pro rata. |
|
7.4 |
Mandatory prepayment on sale or Total Loss |
|
(a) |
If a Ship is sold or becomes a Total Loss, the Borrowers shall on the Relevant Date prepay the Relevant Amount. |
|
(b) |
Provided that no Default has occurred and is continuing, any remaining proceeds of the sale or Total Loss of a Ship, after the prepayment referred to in paragraph (a) above has been made together with all other
amounts that are payable on any such prepayment pursuant to the Finance Documents shall be paid to the Borrower that owned the relevant Ship. |
|
(c) |
In this Clause 7.4 (Mandatory prepayment on sale or Total Loss): |
"Relevant Amount" means, in relation to the Ship that has been sold or has become Total Loss, the aggregate of:
|
(i) |
the Tranche in relation that Ship; and |
|
(ii) |
an amount (if any) which after the application of the prepayment to be made pursuant to this Clause 7.4 (Mandatory prepayment on sale or Total Loss) above results in the security cover ratio required to be
maintained by the Borrowers pursuant to Clause 24.1 (Security Cover). |
"Relevant Date" means:
|
(i) |
in the case of a sale of a Ship on the date on which the sale is completed by delivery of that Ship to its buyer; or |
|
(ii) |
in the case of a Total Loss of a Ship on the earlier of: |
|
(A) |
the date falling 180 days after the Total Loss Date; and |
|
(B) |
the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss. |
|
(d) |
The amount of any partial prepayment of the Loan under this Clause 7.4 (Mandatory prepayment on sale or Total Loss) shall be applied first towards full prepayment of the Tranche relating to the Ship being sold
or which has become Total Loss and thereafter shall reduce the Repayment Instalments of the remaining Tranche outstanding by the amount prepaid pro rata. |
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and Cancellation) shall be
irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment and, if relevant, the part
of the Loan to be prepaid or cancelled. |
|
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid, any applicable fees payable pursuant to Clause 10 (Fees) and without premium or penalty. |
|
(c) |
No Borrower may re-borrow any part of the Facility which is prepaid. |
|
(d) |
No Borrower shall repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement. |
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated. |
|
(f) |
If the Facility Agent receives a notice under this Clause 7 (Prepayment and Cancellation) it shall promptly forward a copy of
that notice to either the Borrowers or the affected Lenders, as appropriate. |
|
(g) |
If all or part of any Lender's participation in the Loan is repaid or prepaid, an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be
cancelled on the date of repayment or prepayment. |
|
7.6 |
Application of prepayments |
Any prepayment of any part of the Loan under this Clause (other than a prepayment pursuant to Clause 7.1 (Illegality)) shall be applied pro rata to each Lender's participation in that part of the Loan.
Section 5
Costs of Utilisation
|
8.1 |
Calculation of interest |
The rate of interest on the Loan or any part of the Loan for each Interest Period is the Interest Rate for that Interest Period.
The Borrowers shall pay accrued interest on the Loan for each Interest Period on the last day of that Interest Period (each an "Interest
Payment Date") in the amount specified in the Repayment Schedule.
|
(a) |
If a Transaction Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and
after judgment) at a rate which is 2 per cent. per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of the Loan in the currency of the Unpaid Sum for successive
Interest Periods, each having a duration as follows: |
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or the relevant part of the Loan; and |
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2 per cent. per annum higher than the rate which would have applied if that Unpaid Sum had not become due. |
Any interest accruing under this Clause 8.3 (Default
interest) shall be immediately payable by the Obligor on demand by the Facility Agent (acting on the instructions of the Majority Lenders).
|
(b) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable. |
|
8.4 |
Notification of rates of interest |
The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest under this Agreement.
|
9.1 |
Duration of Interest Periods |
|
(a) |
The first Interest Period shall commence on the Utilisation Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period. |
|
(b) |
Each Interest Period shall be three Months. |
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).
The Borrowers shall pay to the Facility Agent a non-refundable upfront fee (for the account of the Lenders pro-rata to their Commitments) on the Utilisation
Date in an amount equal to 2 per cent. of the amount of the Loan.
The Borrowers shall pay to the Facility Agent and the Security Agent (for their own account) non-refundable annual agency fees at the times
and in the amount specified in a Fee Letter.
The Borrowers shall pay to the Facility Agent a non-refundable deferred fee (for the account of the Lenders pro-rata to their Commitments)
on the Payment Date in relation to each Tranche in an amount equal to 2 per cent. of the utilised amount in respect of that Tranche.
In this Clause 10.3 (Deferred Fee):
"Payment Date" means, in relation to a Tranche, the date falling on the
earlier of:
|
(a) |
the Relevant Date in respect of the Ship to which that Tranche relates; |
|
(b) |
the date on which that Tranche is repaid in full; |
|
(c) |
the date on which the Facility Agent takes any action as a result of the occurrence of an Event of Default which is continuing and a notice is served under Clause 26.20 (Acceleration) of the Facility Agreement; |
|
(d) |
the Termination Date; and |
|
(e) |
the last day of the Security Period. |
|
10.4 |
Make-whole prepayment fee |
If the Borrowers prepay a Tranche in whole during the Make-Whole Period (other than as a result of any prepayment made to rectify a shortfall pursuant Clause
24 (Security Cover) or any mandatory prepayment pursuant to Clause 7.4 (Mandatory
Prepayment on sale or Total Loss) triggered as a result of the sale of a Ship), the Borrowers shall additionally pay to the Facility Agent (for the account of the Lenders pro-rata to their Commitments) a non-refundable make-whole prepayment fee
on the date of such prepayment (the "Prepayment Date") calculated on the basis of the following formula:
where:
|
E: |
means the make-whole prepayment fee payable under this Clause 10.4 (Make-whole prepayment fee). |
|
X: |
means 50 per cent of the amount of the Tranche being prepaid, which is outstanding on the Prepayment Date (for the avoidance of doubt, immediately prior to any prepayment made). |
|
Y: |
means the number of days during the period commencing on the applicable Prepayment Date and ending on the last day of the Make-Whole Period. |
|
Z: |
means the Interest Rate applicable on the Prepayment Date. |
Section 6
Additional Payment Obligations
|
11 |
Tax Gross Up and Indemnities |
"Protected Party" means a Finance Party which is or will be subject to
any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
"Tax Credit" means a credit against, relief or remission for, or
repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of
Tax from a payment under a Finance Document, other than a FATCA Deduction.
"Tax Payment" means either the increase in a payment made by an Obligor
to a Finance Party under Clause 11.2 (Tax gross-up) or a payment under Clause 11.3
(Tax indemnity).
|
(b) |
Unless a contrary indication appears, in this Clause 11 (Tax Gross Up and Indemnities) reference to "determines" or "determined"
means a determination made in the absolute discretion of the person making the determination. |
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law. |
|
(b) |
Each Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a
Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrowers and that Obligor. |
|
(c) |
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the
payment which would have been due if no Tax Deduction had been required. |
|
(d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required
by law. |
|
(e) |
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled
to the payment evidence that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. |
|
(a) |
The Obligors shall (within five Business Days of demand by the Facility Agent acting on the instructions of a Protected Party or claiming on its own behalf) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document. |
|
(b) |
Paragraph (a) above shall not apply: |
|
(i) |
with respect to any Tax assessed on a Finance Party: |
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or |
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction, |
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that
Finance Party; or
|
(ii) |
to the extent a loss, liability or cost: |
|
(A) |
is compensated for by an increased payment under Clause 11.2 (Tax gross-up); or |
|
(B) |
relates to a FATCA Deduction required to be made by a Party. |
|
(c) |
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the
event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Obligors. |
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 11.3 (Tax indemnity), notify the Facility
Agent. |
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and |
|
(b) |
that Finance Party has obtained and utilised that Tax Credit, |
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as
it would have been in had the Tax Payment not been required to be made by the Obligor.
The Obligors shall pay and, within five Business Days of demand, indemnify each Secured Party against any cost, loss or liability which that Secured Party
incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any
VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to
any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such
supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party). |
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient
(the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that
consideration): |
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to
the amount of the VAT. The Recipient must (where this sub-paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the
Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and |
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT
chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT. |
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of
such cost or expense, including such part of it as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority. |
|
(d) |
Any reference in this Clause 11.6 (VAT) to any Party shall, at any time when that Party is treated as a member of a group or
unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the
grouping rules provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group
or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be). |
|
(e) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's
VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply. |
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party: |
|
(i) |
confirm to that other Party whether it is: |
|
(A) |
a FATCA Exempt Party; or |
|
(B) |
not a FATCA Exempt Party; and |
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and |
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law,
regulation, or exchange of information regime. |
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. |
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable
opinion constitute a breach of: |
|
(i) |
any law or regulation; |
|
(ii) |
any fiduciary duty; or |
|
(iii) |
any duty of confidentiality. |
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above
(including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and
payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information. |
|
(e) |
If a Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of: |
|
(i) |
where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement; |
|
(ii) |
where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or |
|
(iii) |
where a Borrower is not a US Tax Obligor, the date of a request from the Facility Agent, |
supply to the Facility Agent:
|
(iv) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or |
|
(v) |
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation. |
|
(f) |
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower. |
|
(g) |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the
Facility Agent unless it is unlawful for that Lender to do so (in which case that Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document,
authorisation or waiver to the relevant Borrower. |
|
(h) |
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in
connection with paragraphs (e), (f) or (g) above. |
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it
makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. |
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment
and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties. |
|
(a) |
Subject to Clause 12.3 (Exceptions), each Borrower shall, within five Business Days of a demand by the Facility Agent (acting
on the instructions of a Lender or claiming on its own behalf), pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of: |
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or |
|
(ii) |
compliance with any law or regulation made, |
in each case after the date of this Agreement; or
|
(iii) |
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV. |
|
(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) |
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012, as amended
by Regulation (EU) 2019/876; |
|
(B) |
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending
Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, as amended by Regulation (EU) 2019/876; and |
|
(C) |
any other law or regulation which implements Basel III. |
|
(iii) |
"Increased Costs" means: |
|
(A) |
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital; |
|
(B) |
an additional or increased cost; or |
|
(C) |
a reduction of any amount due and payable under any Finance Document, |
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its
Commitment or funding or performing its obligations under any Finance Document.
Notwithstanding anything above to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines and
directives promulgated thereunder, are deemed to have been introduced or adopted after the date of this Agreement, regardless of the date enacted or adopted.
|
12.2 |
Increased cost claims |
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 12.1 (Increased costs) shall notify the Facility Agent of the
event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrowers. |
|
(b) |
Each Finance Party shall provide a certificate confirming the amount of its Increased Costs. |
Clause 12.1 (Increased costs) does not apply to the extent any
Increased Cost is:
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor; |
|
(b) |
attributable to a FATCA Deduction required to be made by a Party; |
|
(c) |
compensated for by Clause 11.3 (Tax indemnity) (or would have been compensated for under Clause 11.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b)
of Clause 11.3 (Tax indemnity) applied); or |
|
(d) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation. |
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in
which that Sum is payable into another currency (the "Second Currency") for the purpose of: |
|
(i) |
making or filing a claim or proof against that Obligor; or |
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
that Obligor shall, as an independent obligation, on demand, indemnify each Secured Party to which that Sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of
its receipt of that Sum.
|
(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. |
|
(a) |
Each Obligor shall, within 5 Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of: |
|
(i) |
the occurrence of any Event of Default; |
|
(ii) |
a failure by a Transaction Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 32 (Sharing among the Finance Parties); |
|
(iii) |
funding, or making arrangements to fund, its participation in the Loan requested by the Borrowers in the Utilisation Request but not made by reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that Secured Party alone); or |
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower. |
|
(b) |
Each Obligor shall, on demand, indemnify each Finance Party, each Indemnified Person, against any cost, loss or liability incurred by that Indemnified Person pursuant to or in connection with any litigation,
arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance
Documents or which relates to the condition or operation of, or any incident occurring in relation to, a Ship or, as the case may be the Collateral Ship, unless such cost, loss or liability is caused by the gross negligence or wilful misconduct
of that Indemnified Person. |
|
(c) |
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction: |
|
(i) |
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or |
|
(ii) |
in connection with any Environmental Claim. |
|
(d) |
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 13.2 (Other
indemnities) subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act. |
|
13.3 |
Indemnity to the Facility Agent |
Each Obligor shall, within 5 Business Days of demand, indemnify each Indemnified Person against:
|
(a) |
any cost, loss or liability incurred by the Facility Agent as a result of: |
|
(i) |
investigating (acting on the instructions of the Majority Lenders) any event which the Majority Lenders reasonably believe is a Default; or |
|
(ii) |
acting or relying on any notice, request or instruction which the Majority Lenders reasonably believe to be genuine, correct and appropriately authorised; or |
|
(iii) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents or as may be required by the Majority Lenders; and |
|
(b) |
any cost, loss or liability incurred by any Indemnified Person (otherwise than by reason of that Indemnified Person's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to
Clause 33.11 (Disruption to Payment Systems etc.) notwithstanding that Indemnified Person's negligence, gross negligence or any other category of liability
whatsoever but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents. |
|
13.4 |
Indemnity to the Security Agent |
|
(a) |
Each Obligor shall, within 5 Business Days of demand, indemnify each Indemnified Person against any cost, loss or liability incurred by any of them: |
|
(i) |
in relation to or as a result of: |
|
(A) |
any failure by a Borrower to comply with its obligations under Clause 15 (Costs and Expenses); |
|
(B) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; |
|
(C) |
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security; |
|
(D) |
the exercise of any of the rights, powers, discretions, authorities and remedies vested in that Indemnified Person by the Finance Documents or by law; |
|
(E) |
any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; |
|
(F) |
any action by any Transaction Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and |
|
(G) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents, |
|
(ii) |
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents
(otherwise, in each case, than by reason of the relevant Indemnified Person's gross negligence or wilful misconduct). |
|
(b) |
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to give
effect to the indemnity in this Clause 13.4 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the
enforcement of the Transaction Security for all monies payable to it. |
|
14 |
Mitigation by the Finance Parties |
|
(a) |
Each Finance Party shall, in consultation with the Borrowers, take all reasonable but commercially prudent steps to mitigate any circumstances which arise and which would result in any amount becoming payable under
or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 11
(Tax Gross Up and Indemnities) or Clause 12 (Increased Costs) including (but not limited to) transferring its rights and obligations under the
Finance Documents to another Affiliate or Facility Office. |
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Transaction Obligor under the Finance Documents. |
|
14.2 |
Limitation of liability |
|
(a) |
Each Obligor shall, within 5 Business Days of demand, indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 14.1 (Mitigation). |
|
(b) |
A Finance Party is not obliged to take any steps under Clause 14.1 (Mitigation) if either: |
|
(i) |
a Default has occurred and is continuing; or |
|
(ii) |
in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it. |
|
15.1 |
Transaction expenses |
The Obligors shall, within 5 Business Days of demand, pay the Facility Agent and the Security Agent the amount of all documented costs and expenses (including
legal fees) reasonably incurred by any Secured Party in connection with the negotiation, preparation, printing, execution, administration syndication and perfection of:
|
(a) |
this Agreement and any other documents referred to in this Agreement or in a Security Document; and |
|
(b) |
any other Finance Documents executed after the date of this Agreement. |
If:
|
(a) |
a Transaction Obligor requests an amendment, waiver or consent; or |
|
(b) |
an amendment is required pursuant to Clause 33.9 (Change of currency); or |
|
(c) |
a Transaction Obligor requests, and the Security Agent agrees to (acting on the instructions of the Majority Lenders), the release of all or any part of the Security Assets from the Transaction Security, |
the Obligors shall, within 5 Business Days of demand, reimburse each of the Facility Agent and the Security Agent for the amount of all documented costs and
expenses (including legal fees) reasonably incurred by each Secured Party in responding to, evaluating, negotiating or complying with that request or requirement.
|
15.3 |
Enforcement and preservation costs |
The Obligors shall, on demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured Party in
connection with the enforcement of, or the preservation of any rights under, any Finance Document or the Transaction Security and with any proceedings instituted by or against that Secured Party as a consequence of it entering into a Finance Document,
taking or holding the Transaction Security, or enforcing those rights.
Section 7
Guarantee and Joint and Several Liability of the Borrowers
|
16 |
Guarantee and Indemnity |
|
16.1 |
Guarantee and indemnity |
The Guarantor irrevocably and unconditionally:
|
(a) |
guarantees to each Finance Party punctual performance by each Transaction Obligor other than the Guarantor of all such other Transaction Obligor's obligations under the Finance Documents; |
|
(b) |
undertakes with each Finance Party that whenever a Transaction Obligor other than the Guarantor does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on
demand pay that amount as if it were the principal obligor; and |
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on
demand against any cost, loss or liability it incurs as a result of a Transaction Obligor other than the Guarantor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any
Finance Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 16 (Guarantee and Indemnity) if the amount claimed had been recoverable on the basis of a guarantee. |
|
16.2 |
Continuing guarantee |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Transaction Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
If any discharge, release or arrangement (whether in respect of the obligations of any Transaction Obligor or any security for those obligations or otherwise)
is made by a Secured Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the
Guarantor under this Clause 16 (Guarantee and Indemnity) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of the Guarantor under this Clause 16 (Guarantee and
Indemnity) and in respect of any Transaction Security will not be affected or discharged by an act, omission, matter or thing which, but for this Clause 16.4 (Waiver
of defences), would reduce, release or prejudice any of its obligations under this Clause 16 (Guarantee and Indemnity) or in respect of any Transaction
Security (without limitation and whether or not known to it or any Secured Party) including:
|
(a) |
any time, waiver or consent granted to, or composition with, any Transaction Obligor or other person; |
|
(b) |
the release of any other Transaction Obligor or any other person under the terms of any composition or arrangement with any creditor of Transaction Obligor; |
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights
against, or security over assets of, any Transaction Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Transaction Obligor or any other person; |
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without
limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security; |
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or |
|
(g) |
any insolvency or similar proceedings. |
The Guarantor waives any right it may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or enforce any
other rights or security or claim payment from any person (including without limitation to commence any proceedings under any Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 16 (Guarantee and Indemnity). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
Until all amounts which may be or become payable by the Transaction Obligors under or in connection with the Finance Documents have been irrevocably paid in
full, each Secured Party (or any trustee or agent on its behalf) may:
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in
such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and |
|
(b) |
hold any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 16 (Guarantee and
Indemnity) in a suspense account bearing interest at a rate equal to the rate on which interest is accruing on the relevant Unpaid Sum under this Agreement. |
|
16.7 |
Deferral of Guarantor's rights |
All rights which the Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against the Borrowers, any other
Transaction Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents and until the end of the Security Period and unless the Facility Agent otherwise directs (acting on the
instructions of the Majority Lenders), the Guarantor will not exercise any rights which it may have (whether in respect of any Finance Document to which it is a Party or any other transaction) 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 16 (Guarantee and Indemnity):
|
(a) |
to be indemnified by a Transaction Obligor; |
|
(b) |
to claim any contribution from any third party providing security for, or any other guarantor of, any Transaction Obligor's obligations under the Finance Documents; |
|
(c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in
connection with, the Finance Documents by any Secured Party; |
|
(d) |
to bring legal or other proceedings for an order requiring any Transaction Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity
under Clause 16.1 (Guarantee and indemnity); |
|
(e) |
to exercise any right of set-off against any Transaction Obligor; and/or |
|
(f) |
to claim or prove as a creditor of any Transaction Obligor in competition with any Secured Party. |
If the Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent
necessary to enable all amounts which may be or become payable to the Secured Parties by the Transaction Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer
the same to the Facility Agent or as the Facility Agent may direct (acting on the instructions of the Majority Lenders) for application in accordance with Clause 33 (Payment
Mechanics).
This guarantee and any other Security given by the Guarantor is in addition to and is not in any way prejudiced by, and shall not prejudice, any other
guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to combine accounts in connection with the Finance Documents.
|
16.9 |
Applicability of provisions of Guarantee to other Security |
Clauses 16.2 (Continuing guarantee), 16.3 (Reinstatement), 16.4 (Waiver of defences), 16.5 (Immediate recourse), 16.6 (Appropriations), 16.7 (Deferral of Guarantor's rights) and 16.8 (Additional security) shall apply, with any necessary modifications, to any
Security which the Guarantor creates (whether at the time at which it signs this Agreement or at any later time) to secure the Secured Liabilities or any part of them.
|
17 |
Joint and Several Liability of the Borrowers |
|
17.1 |
Joint and several liability |
All liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to be so or not, be joint and several.
The liabilities and obligations of a Borrower shall not be impaired by:
|
(a) |
this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower; |
|
(b) |
any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower; |
|
(c) |
any Lender or the Security Agent releasing any other Borrower or any Security created by a Finance Document; |
|
(d) |
any time, waiver or consent granted to, or composition with any other Borrower or other person; |
|
(e) |
the release of any other Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
|
(f) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any other Borrower or other person or any
non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
|
(g) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any other Borrower or any other person; |
|
(h) |
any amendment, novation, supplement, extension, restatement (however fundamental, and whether or not more onerous) or replacement of a Finance Document or any other document or security including, without limitation,
any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security; |
|
(i) |
any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or |
|
(j) |
any insolvency or similar proceedings. |
Each Borrower declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and the
Finance Documents and no Borrower shall, in any circumstances, be construed to be a surety for the obligations of any other Borrower under this Agreement.
|
17.4 |
Borrower restrictions |
|
(a) |
Subject to paragraph (b) below, during the Security Period no Borrower shall: |
|
(i) |
claim any amount which may be due to it from any other Borrower whether in respect of a payment made under, or matter arising out of, this Agreement or any Finance Document, or any matter unconnected with this
Agreement or any Finance Document; or |
|
(ii) |
take or enforce any form of security from any other Borrower for such an amount, or in any way seek to have recourse in respect of such an amount against any asset of any other Borrower; or |
|
(iii) |
set off such an amount against any sum due from it to any other Borrower; or |
|
(iv) |
prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving any other Borrower; or |
|
(v) |
exercise or assert any combination of the foregoing. |
|
(b) |
If during the Security Period, the Facility Agent, by notice to a Borrower, requires it to take any action referred to in paragraph (a)
above in relation to any other Borrower, that Borrower shall take that action as soon as practicable after receiving the Facility Agent's notice. |
|
17.5 |
Deferral of Borrowers' rights |
Until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably paid in full and
unless the Facility Agent otherwise directs, no Borrower will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents:
|
(a) |
to be indemnified by any other Borrower; or |
|
(b) |
to claim any contribution from any other Borrower in relation to any payment made by it under the Finance Documents. |
Section 8
Representations, Undertakings and Events of Default
Each Obligor makes the representations and warranties set out in this Clause 18
(Representations) to each Finance Party on the date of this Agreement.
|
(a) |
It is a corporation, duly incorporated and validly existing in good standing under the law of its Original Jurisdiction. |
|
(b) |
It and each Transaction Obligor has the power to own its assets and carry on its business as it is being conducted. |
|
18.3 |
Share capital and ownership |
|
(a) |
Each Borrower is authorised to issue 500 registered shares with no par value, all of which shares have been issued and the direct legal title and beneficial ownership of all those shares is held, free of any Security
or other claim, by the Guarantor. |
|
(b) |
The Guarantor is authorised to issue 525,000,000 shares consisting of 500,000,000 registered shares of common stock with a par value of US$0.0001 each and 25,000,000 registered shares of preferred stock with a par
value of US$0.0001 each, out of which 30,018,577 registered shares of common stock and no registered shares of preferred stock have been issued fully paid and 22,522,281 warrants are outstanding to purchase an aggregate of 860.213 registered
shares of common stock. |
|
(c) |
The legal title to and beneficial interest in the shares in each Borrower is held free of any Security or any other claim by the Guarantor. |
|
(d) |
None of the shares in a Borrower is subject to any option to purchase, pre-emption rights or similar rights. |
The obligations expressed to be assumed by it in each Transaction Document to which it is a party are legal, valid, binding and enforceable obligations.
|
18.5 |
Validity, effectiveness and ranking of Security |
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery create, subject to the Perfection Requirements, the Security it purports to create over any assets to
which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective. |
|
(b) |
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it. |
|
(c) |
Subject to the Perfection Requirements, the Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have first ranking priority or such
other priority it is expressed to have and is not subject to any prior ranking or pari passu ranking security. |
|
(d) |
No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security. |
|
18.6 |
Non-conflict with other obligations |
The entry into and performance by it of, and the transactions contemplated by, each Transaction Document to which it is a party do not and will not conflict
with:
|
(a) |
any law or regulation applicable to it; |
|
(b) |
the constitutional documents of any Transaction Obligor; or |
|
(c) |
any agreement or instrument binding upon it or constitute a default or termination event (however described) under any such agreement or instrument. |
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise: |
|
(i) |
its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those Transaction Documents; and |
|
(ii) |
in the case of a Borrower, its continuing registration of its Ship under the Approved Flag. |
|
(b) |
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Transaction Documents to which it is a party. |
|
18.8 |
Validity and admissibility in evidence |
All Authorisations required or desirable:
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and |
|
(b) |
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions, |
have been obtained or effected and are in full force and effect.
|
18.9 |
Governing law and enforcement |
|
(a) |
The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions. |
|
(b) |
Any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognised and enforced in its Relevant Jurisdictions. |
No:
|
(a) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 26.8 (Insolvency proceedings); or |
|
(b) |
creditors' process described in Clause 26.9 (Creditors' process), |
has been taken or, to its knowledge, threatened in relation to any Transaction Obligor; and none of the circumstances described in Clause 26.7 (Insolvency) applies to any Transaction Obligor.
|
18.11 |
No filing or stamp taxes |
Under the laws of its Relevant Jurisdictions it is not necessary that the Finance Documents to which it is a party be registered, filed, recorded, notarised
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 Finance Documents to which it is a party or the transactions contemplated by those
Finance Documents except any filing, recording or enrolling or any tax or fee payable in relation to the Mortgage which is referred to in any legal opinion delivered pursuant to Clause 4
(Conditions of Utilisation) and which will be made or paid promptly after the date of the relevant Finance Document.
It is not required to make any Tax Deduction from any payment it may make under any Finance Document to which it is a party.
|
(a) |
No Event of Default and, on the date of this Agreement and on the Utilisation Date, no Default is continuing or might reasonably be expected to result from the making of the Utilisation or the entry into, the
performance of, or any transaction contemplated by, any Transaction Document. |
|
(b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it (or any other Transaction Obligor)
or to which its (or any Transaction Obligor's) assets are subject which might have a Material Adverse Effect. |
|
18.14 |
No misleading information |
|
(a) |
Any factual information provided by any Transaction Obligor for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is
stated. |
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions. |
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in any such information being untrue or misleading in any material respect. |
|
18.15 |
Financial Statements |
|
(a) |
In the case of the Guarantor, its Original Financial Statements were prepared in accordance with GAAP consistently applied. |
|
(b) |
In the case of the Guarantor, its Original Financial Statements give a true and fair view of its financial condition as at the end of the relevant financial year and results of operations during the relevant
financial year (consolidated). |
|
(c) |
In the case of each Borrower, its unaudited financial statements were prepared in accordance with GAAP consistently applied. |
|
(d) |
In the case of each Borrower, its unaudited financial statements give a true and fair view of its financial condition as at the end of the relevant financial year and results of operations during the relevant
financial year. |
|
(e) |
There has been no material adverse change in its assets, business or financial condition (or the assets, business or consolidated financial condition of the Group, in the case of the Guarantor) since 31 December
2019. |
|
(f) |
Since the date of the most recent financial statements delivered pursuant to Clause 20.2 (Financial statements) there has been
no material adverse change in its business, assets or financial condition (or the business or consolidated financial condition of the Group, in the case of the Guarantor). |
Its payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
|
18.17 |
No proceedings pending or threatened |
|
(a) |
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) of or before any
court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against
it or any other Transaction Obligor. |
|
(b) |
No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which might reasonably be expected to have a Material Adverse Effect has (to
the best of its knowledge and belief (having made due and careful enquiry)) been made against it or any other Transaction Obligor. |
|
(a) |
All information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation delivered to the Facility Agent in accordance with this Agreement was true and accurate as at the date it was
supplied or (if appropriate) as at the date (if any) at which it is stated to be given. |
|
(b) |
It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer. |
|
(c) |
There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the
date such information was provided and the date of that valuation which, in either case, renders that information untrue or misleading in any material respect. |
|
(a) |
It has not breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect. |
|
(b) |
No Transaction Obligor or any Affiliate thereof is in violation of and nor shall it violate any of the country or list based economic and trade sanctions administered and enforced by OFAC that are described or
referenced at http://ustreas.gov/offices/enforcement/ofac or as otherwise published from time to time. |
Except as disclosed by the Borrowers to the Facility Agent in writing on or before the date of this Agreement, no Ship is subject to any Charter other than a
Permitted Charter.
|
18.21 |
Compliance with Environmental Laws |
All Environmental Laws relating to the ownership, operation and management of each Ship and the business of each Transaction Obligor (as now conducted and as
reasonably anticipated to be conducted in the future) and the terms of all Environmental Approvals have been complied with.
|
18.22 |
No Environmental Claim |
No Environmental Claim has been made or threatened against any Transaction Obligor or any Ship.
|
18.23 |
No Environmental Incident |
No Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred.
|
18.24 |
ISM and ISPS Code compliance |
All requirements of the ISM Code and the ISPS Code as they relate to each Borrower, the Approved Technical Manager and each Ship have been complied with.
|
(a) |
It is not materially overdue in the filing of any Tax returns and it is not overdue in the payment of any amount in respect of Tax. |
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes. |
|
18.26 |
Financial Indebtedness |
No Borrower has any Financial Indebtedness outstanding other than Permitted Financial Indebtedness.
No Obligor has delivered particulars, whether in its name stated in the Finance Documents or any other name, of any UK Establishment to the Registrar of
Companies as required under the Overseas Regulations or, if it has so registered, it has provided to the Facility Agent sufficient details to enable an accurate search against it to be undertaken by the Lenders at the Companies Registry.
|
18.28 |
Good title to assets |
It has good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its
business as presently conducted.
|
(a) |
Each Borrower is the sole legal and beneficial owner of all rights and interests which any Charter creates in favour of that Borrower. |
|
(b) |
Borrower A is the sole legal and beneficial owner of Ship A, its Earnings and its Insurances. |
|
(c) |
Borrower B is the sole legal and beneficial owner of Ship B, its Earnings and its Insurances. |
|
(d) |
With effect on and from the date of its creation or intended creation, each Transaction Obligor will be the sole legal and beneficial owner of any asset that is the subject of any Transaction Security created or
intended to be created by such Transaction Obligor. |
|
(e) |
The constitutional documents of each Transaction Obligor do not and could not restrict or inhibit any transfer of the shares of a Borrower on creation or enforcement of the security conferred by the Security
Documents. |
|
18.30 |
Centre of main interests and establishments |
For the purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the "Regulation"), its centre of main
interest (as that term is used in Article 3(1) of the Regulation) is situated in Greece and it has no "establishment" (as that term is used in Article 2(h) of the Regulation) in any other jurisdiction.
No Obligor has a place of business in any country other than Greece and its executive office functions are carried out, in the case of each Obligor, at c/o
154 Vouliagmenis Avenue, 166 74 Glyfada, Athens, Greece.
|
18.32 |
No employee or pension arrangements |
No Borrower has any employees or any liabilities under any pension scheme.
|
(a) |
No Transaction Obligor: |
|
(i) |
is a Prohibited Person; |
|
(ii) |
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person; |
|
(iii) |
owns or controls a Prohibited Person; or |
|
(iv) |
has a Prohibited Person serving as a director, officer or, to the best of its knowledge, employee. |
|
(b) |
No proceeds of the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose
prohibited by Sanctions. |
No Obligor is a US Tax Obligor.
|
18.35 |
Margin Regulations; Investment Company Act |
|
(a) |
No Borrower is engaged, nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System of the United States). |
|
(b) |
No Borrower is, nor is it required to be, registered as an "investment company" under the United States of America Investment Company Act of 1940. |
To the extent applicable each Borrower is in compliance with (i) the Trading with the Enemy Act, and each of the foreign assets control regulations of the
United States Treasury Department (31 C.F.R., Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto and (ii) the PATRIOT Act. No part of the proceeds of the Loan will be used, directly or indirectly, for any
payments to any government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date of the Utilisation
Request and the first day of each Interest Period.
|
19.1 |
Borrowers' minimum liquidity |
The Borrowers shall maintain in the Earnings Accounts aggregate credit balances (the "Minimum Liquidity Amount") of not less than:
|
(a) |
on and from the Utilisation Date and until the date falling three months after the Utilisation Date, $250,000 in relation to each Ship (being $500,000 in aggregate); and |
|
(b) |
on and from the date falling three months after the Utilisation Date and at all times thereafter during the Security Period, $400,000 in respect of each Ship Provided that if that Ship enters into a Charter
exceeding 12 months (including any optional extensions), the relevant Minimum Liquidity Amount shall be reduced to $250,000 for as long as that Ship remains subject to that Charter. |
At all times during the Security Period the Guarantor shall maintain Cash (including the Minimum Liquidity Amount and any contractually
committed but undrawn parts of the Notes) in an amount of at least equal to $500,000 per Fleet Vessel.
|
20 |
Information Undertakings |
The undertakings in this Clause 20 (Information Undertakings) remain
in force throughout the Security Period unless the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders), may otherwise permit.
|
20.2 |
Financial statements |
The Obligors shall supply to the Facility Agent in sufficient copies for all the Lenders:
|
(a) |
as soon as they become available, but in any event within 120 days after the end of each financial year of the Guarantor the audited consolidated financial statements of the Guarantor for that financial year; and |
|
(b) |
as soon as the same become available, but in any event within 90 days after the end of each financial quarter of each Obligor, the unaudited financial statements of that Obligor for that financial quarter. |
|
20.3 |
Requirements as to financial statements |
|
(a) |
Each set of financial statements delivered by an Obligor pursuant to Clause 20.2 (Financial statements) shall be certified by
an officer of that company as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition and operations as at the date as at which those financial statements were drawn up. |
|
(b) |
Each Obligor shall procure that each set of financial statements delivered pursuant to Clause 20.2 (Financial statements) is
prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies
the Facility Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Facility Agent: |
|
(i) |
a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and |
|
(ii) |
sufficient information, in form and substance as may be reasonably required by the Facility Agent acting on the instructions of the Majority Lenders, to make an accurate comparison between the financial position
indicated in those financial statements and that Obligor's Original Financial Statements. |
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis
upon which the Original Financial Statements were prepared.
|
(a) |
In this Clause 20.4 (DAC6), "DAC6" means the Council Directive of 25 May 2018 (2018/822/EU) |
amending Directive 2011/16/EU.
|
(b) |
The Borrowers shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests): |
|
(i) |
promptly upon the making of such analysis or the obtaining of such advice, any analysis made or advice obtained on whether any transaction contemplated by the Transaction Documents or any transaction carried out (or
to be carried out) in connection with any transaction contemplated by the Transaction Documents contains a hallmark as set out in Annex IV of DAC6; and |
|
(ii) |
promptly upon the making of such reporting and to the extent permitted by applicable law and regulation, any reporting made to any governmental or taxation authority by or on behalf of any member of the Group or by
any adviser to such member of the Group in relation to DAC6 or any law or regulation which implements DAC6 and any unique identification number issued by any governmental or taxation authority to which any such report has been made (if
available). |
|
20.5 |
Information: miscellaneous |
Each Obligor shall supply to the Facility Agent (acting on the instructions of the Majority Lenders) (in sufficient copies for all the Lenders, if the
Facility Agent so requests):
|
(a) |
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched; |
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of
the ISM Code or of the ISPS Code) which are current, threatened or pending against any Transaction Obligor, and which might, if adversely determined, have a Material Adverse Effect; |
|
(c) |
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which is made against
any member of the Group and which might have a Material Adverse Effect; |
|
(d) |
promptly, its constitutional documents where these have been amended or varied; |
|
(e) |
promptly, such further information and/or documents regarding: |
|
(i) |
each Ship, the Collateral Ship, goods transported on each Ship and/or the Collateral Ship, the Earnings or the Insurances; |
|
(ii) |
the Security Assets; |
|
(iii) |
compliance of the Transaction Obligors (excluding the Collateral Shareholder) with the terms of the Finance Documents; |
|
(iv) |
the financial condition, business and operations of any Transaction Obligor, |
as any Finance Party (through the Facility Agent) may reasonably request; and
|
(f) |
promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it or as may be
required by any regulatory authority. |
|
20.6 |
Notification of Default |
|
(a) |
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has
already been provided by another Obligor). |
|
(b) |
Promptly upon a request by the Facility Agent (acting on the instructions of the Majority Lenders), each Borrower shall supply to the Facility Agent a certificate signed by its 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). |
|
(a) |
Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders (the "Website Lenders") which accept this method of
communication by posting this information onto an electronic website designated by the Borrowers and the Facility Agent (the "Designated Website") if: |
|
(i) |
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method; |
|
(ii) |
both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and |
|
(iii) |
the information is in a format previously agreed between the relevant Obligor and the Facility Agent (acting on the instructions of the Majority Lenders. |
If any Lender (a "Paper Form Lender") does not agree to the delivery of information electronically then that Lender shall notify the Facility Agent and
the Facility Agent shall notify the Obligors accordingly and each Obligor shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event each Obligor shall supply the Facility Agent with
at least one copy in paper form of any information required to be provided by it.
|
(b) |
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors or any of them and the
Facility Agent. |
|
(c) |
An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if: |
|
(i) |
the Designated Website cannot be accessed due to technical failure; |
|
(ii) |
the password specifications for the Designated Website change; |
|
(iii) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website; |
|
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or |
|
(v) |
if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software. |
If an Obligor notifies the Facility Agent under sub-paragraph (i) or (v) of paragraph (c) above, all information to be provided by the Obligors under this
Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
|
(d) |
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligors shall comply with
any such request within 10 Business Days. |
|
20.8 |
"Know your customer" checks |
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; |
|
(ii) |
any change in the status of a Transaction Obligor (including, without limitation, a change of ownership of a Transaction Obligor) after the date of this Agreement; or |
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer, |
obliges a Finance Party (or, in the case of sub-paragraph (iii) above, any
prospective new Lender) to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of any Finance Party supply,
or procure the supply of, such documentation and other evidence as is reasonably requested by a Servicing Party (for itself or on behalf of any other Finance Party) or any Lender (for itself or, in the case of the event described in sub-paragraph (iii) above, on behalf of any prospective new Lender) in order for such Finance Party or, in the case of the event described in sub-paragraph (iii) above, any prospective new Lender 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,
including Sanctions, pursuant to the transactions contemplated in the Finance Documents including without limitation obtaining, verifying and recording certain information and documentation that will allow the Facility Agent and each of the Lenders to
identify each Transaction Obligor in accordance with the requirements of the PATRIOT Act.
|
(b) |
Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Party (for itself) in order for
that Servicing Party to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. |
|
20.9 |
Anti-money laundering |
Each Borrower shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence
as is reasonably requested by a Servicing Party (for itself) in order for that Servicing Party to be satisfied it has complied with all necessary anti-money laundering laws.
The undertakings in this Clause 21 (General Undertakings) remain in
force on and from the date of this Agreement and throughout the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly:
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and |
|
(b) |
supply certified copies to the Facility Agent of, |
any Authorisation required under any law or regulation of a Relevant Jurisdiction or the state
of the Approved Flag at any time of each Ship or, as the case may be, Collateral Ship to enable it to:
|
(i) |
perform its obligations under the Transaction Documents to which it is a party; |
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of each Ship or, as the case may be, Collateral Ship of any
Transaction Document to which it is a party; and |
|
(iii) |
own and operate its Ship (in the case of a Borrower) and the Collateral Ship (in the case of a Collateral Guarantor). |
Each Obligor shall, and shall procure that each other Transaction Obligor will maintain its separate corporate existence, remain in goodstanding under the law
of its jurisdiction of incorporation and duly observe and conform to all requirements of any governmental authorities relating to the conduct of its business or to its properties or assets.
|
21.4 |
Compliance with laws |
Each Obligor shall, and shall procure that each other Transaction Obligor will, comply in all respects with all laws and regulations to which it may be
subject if failure so to comply has or is reasonably likely to have a Material Adverse Effect, including without limitation (i) the Trading with the Enemy Act and each of the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V) and any other enabling legislation or executive order thereto and (ii) the PATRIOT Act.
|
21.5 |
Environmental compliance |
Each Obligor shall, and shall procure that each other Transaction Obligor will:
|
(a) |
comply with all Environmental Laws; |
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals; |
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law, |
where failure to do so has or is reasonably likely to have a Material Adverse Effect.
|
21.6 |
Environmental Claims |
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly upon becoming aware of the same, inform the Facility Agent in writing
of:
|
(a) |
any Environmental Claim against any Transaction Obligor which is current, pending or threatened; and |
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any Transaction Obligor, |
where the claim, if determined against that Transaction Obligor, has or is reasonably likely to have a Material Adverse Effect.
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to
the extent that: |
|
(i) |
such payment is being contested in good faith; |
|
(ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them and both have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 20.2 (Financial statements); and |
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect. |
|
(b) |
No Obligor shall change its residence for Tax purposes. |
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly inform the Facility Agent if it delivers to the Registrar particulars
required under the Overseas Regulations of any UK Establishment and it shall comply with any directions given to it by the Facility Agent regarding the recording of any Transaction Security on the register which it is required to maintain under The
Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009.
|
21.9 |
No change to centre of main interests |
No Obligor shall, and shall procure that no Transaction Obligor (excluding the Collateral Shareholder) will change the location of its centre of main interest
(as that term is used in Article 3(1) of the Regulation) from that stated in relation to it in Clause 18.30 (Centre of main interests and establishments) and it
will create no "establishment" (as that term is used in Article 2(h) of the Regulation) in any other jurisdiction.
Each Obligor shall, and shall procure that each other Transaction Obligor will, ensure that at all times any unsecured and unsubordinated claims of a Finance
Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to
companies.
|
(a) |
Borrower A shall hold the legal title to, and own the entire beneficial interest in Ship A, its Earnings and its Insurances. |
|
(b) |
Borrower B shall hold the legal title to, and own the entire beneficial interest in Ship B, its Earnings and its Insurances. |
|
(c) |
Each Obligor shall hold the legal title to, and own the entire beneficial interest in with effect on and from its creation or intended creation, any assets the subject of any Transaction Security created or intended
to be created by that Obligor. |
|
(a) |
No Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, create or permit to subsist any Security over any of its assets which are, in the case of a Transaction Obligor other than a
Borrower, the subject of the Security created or intended to be created by the Finance Documents. |
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Transaction Obligor or any other member of the Group; |
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms; |
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or |
|
(iv) |
enter into any other preferential arrangement having a similar effect, |
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition
of an asset.
|
(c) |
Paragraphs (a) and (b) above do not apply to any
Permitted Security. |
|
(a) |
No Obligor shall, enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of: |
|
(i) |
in the case of a Borrower, any asset (including without limitation its Ship, its Earnings or its Insurances); and |
|
(ii) |
in the case of the Guarantor, all or substantially all of its assets. |
|
(b) |
Paragraph (a) above does not apply to: |
|
(i) |
any Charter as all Charters are subject to Clause 23.15 (Restrictions on chartering, appointment of managers etc.); and |
|
(ii) |
a sale of a Ship provided that the Borrowers comply with the prepayment obligations in Clause 7 (Prepayment and Cancellation). |
No Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, enter into any amalgamation, demerger, merger, consolidation or
corporate reconstruction other than an amalgamation, demerger, merger, consolidation or corporate reconstruction of the Guarantor under which the Guarantor is the surviving entity.
|
(a) |
The Guarantor shall procure that no substantial change is made to the general nature of the business of the Guarantor from that carried on at the date of this Agreement of the holding of single purpose ship owning
subsidiaries and arrangement of acquisition, financing and the operation of vessels on behalf of these single purpose ship owning subsidiaries. |
|
(b) |
No Borrower shall engage in any business other than the ownership and operation of its Ship. |
|
21.16 |
Financial Indebtedness |
No Borrower shall incur or permit to be outstanding any Financial Indebtedness except Permitted Financial Indebtedness.
No Borrower shall incur any expenditure, except for expenditure reasonably incurred in the ordinary course of owning, operating, maintaining and repairing its
Ship.
No Borrower shall:
|
(a) |
purchase, cancel or redeem any of its issued shares; |
|
(b) |
increase or reduce the number of its authorised shares, change the par value of such shares or create any new class of shares; |
|
(c) |
issue any further shares except to the Guarantor and provided such new shares are made subject to the terms of the Shares Security immediately upon the issue of such new shares in a manner satisfactory to the
Facility Agent (acting on the instructions of the Majority Lenders) and the terms of the Shares Security are complied with; |
|
(d) |
appoint any further director or officer (unless the provisions of the Shares Security are complied with). |
|
21.19 |
Dividends and other distributions |
No Obligor shall, following the occurrence of:
|
(a) |
in the case of a Borrower, any Event of Default; and |
|
(b) |
in the case of the Guarantor, an Event of Default under Clause 26.2 (Non-payment), 26.6 (Cross Default), 26.7 (Insolvency), 26.8 (Insolvency Proceedings) or 26.10 (Ownership of the Obligors), |
and whilst the same is continuing or where any of the following would result in the occurrence of an Event of Default:
|
(i) |
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend or other distribution) (whether in cash or in kind) on or in respect of its shares (or any class of its
shares); |
|
(ii) |
repay or distribute any dividend or share premium reserve; or |
|
(iii) |
redeem, repurchase, defease, retire or repay any of its shares or resolve to do so. |
No Borrower shall:
|
(a) |
be the creditor in respect of any loan or any form of credit to any person other than another Transaction Obligor and where such loan or form of credit is Permitted Financial Indebtedness; |
|
(b) |
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which that Borrower assumes any
liability of any other person other than any guarantee or indemnity given |
|
(i) |
under the Finance Documents; or |
|
(ii) |
in the ordinary course of its business; |
|
(c) |
enter into any material agreement other than: |
|
(i) |
the Transaction Documents; |
|
(ii) |
any other agreement expressly allowed under any other term of this Agreement; |
|
(d) |
enter into any transaction on terms which are, in any respect, less favourable to that Borrower than those which it could obtain in a bargain made at arms' length; or |
|
(e) |
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks. |
|
21.21 |
Unlawfulness, invalidity and ranking; Security imperilled |
No Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, do (or fail to do) anything which is likely to:
|
(a) |
make it unlawful for a Transaction Obligor to perform any of its obligations under the Transaction Documents to which it is a party; |
|
(b) |
cause any obligation of a Transaction Obligor under the Transaction Documents to which it is a party to cease to be legal, valid, binding or enforceable; |
|
(c) |
cause any Transaction Document to which it is a party to cease to be in full force and effect; |
|
(d) |
cause any Transaction Security to which it is a party to rank after, or lose its priority to, any other Security; and |
|
(e) |
imperil or jeopardise the Transaction Security. |
No Borrower shall form or acquire any Subsidiaries.
|
21.23 |
Employees and ERISA Compliance |
No Borrower shall employ any individual nor sponsor, maintain or become obligated to contribute to any Plan. However, without prejudice to the foregoing, each
Borrower shall provide prompt written notice to the Facility Agent in the event that that Borrower becomes aware that it has incurred or is reasonably likely to incur any liability with respect to any Plan, that, individually or in the aggregate with
any other such liability, would be reasonably expected to have a Material Adverse Effect.
Each Borrower will keep proper books of record and account which will be accurate in all material respects and in which full, true and correct entries in
accordance with GAAP will be made of all dealings or transactions in relation to its business and activities.
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly, and in any event within the time period specified by the Security Agent (acting on the instructions of the Facility Agent
which is acting on the instructions of the Majority Lenders) do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents
(including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify acting reasonably (and in such form as the Security Agent (acting on the
instructions of the Facility Agent which is acting on the instructions of the Majority Lenders) may require in favour of the Security Agent or its nominee(s)): |
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance Documents (which may
include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of any of
the Secured Parties provided by or pursuant to the Finance Documents or by law; |
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Transaction Obligor located in any jurisdiction equivalent or similar to the Security intended to be
conferred by or pursuant to the Finance Documents; |
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction
Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or |
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property. |
|
(b) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the
creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents. |
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed by itself or another Transaction Obligor pursuant to this Clause 21.25 (Further assurance), that Obligor shall deliver, or shall procure that such other Transaction Obligor will deliver, to the Security Agent reasonable evidence that that Obligor's or Transaction Obligor's
execution of such document has been duly authorised by it. |
|
22 |
Insurance Undertakings |
The undertakings in this Clause 22 (Insurance Undertakings) remain
in force on and from the Utilisation Date and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
|
22.2 |
Maintenance of obligatory insurances |
Each Borrower shall keep its Ship insured at its expense against:
|
(d) |
fire and usual marine risks (including hull and machinery and excess risks); |
|
(a) |
war risks (including the London Blocking and Trapping addendum or its equivalent); |
|
(b) |
protection and indemnity risks (including liability for oil pollution for an amount of no less than $1,000,000,000 and excess war risk P&I cover) on standard Club Rules, covered by a Protection and Indemnity
association which is a member of the International Group of Protection and Indemnity Associations (or, if the International Group ceases to exist, any other leading protection and indemnity association or other leading provider of protection and
indemnity insurance) (including, without limitation, the proportion (if any) of any collision liability not covered under the terms of the hull cover); and |
|
(c) |
any other risks against which the Facility Agent acting on the instructions of the Majority Lenders considers, having regard to practices and other circumstances prevailing at the relevant time, it would be
reasonable for that Borrower to insure and which are specified by the Facility Agent (acting on the instructions of the Majority Lenders) by notice to the Borrowers. |
|
22.3 |
Terms of obligatory insurances |
Each Borrower shall effect such insurances:
|
(b) |
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of: |
|
(i) |
120 per cent. of the Tranche relating to the Ship owned by it; and |
|
(ii) |
the Market Value of its Ship; |
|
(c) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine
insurance market (such amount currently being $1,000,000,000); |
|
(d) |
in the case of protection and indemnity risks, in respect of the full tonnage of its Ship; |
|
(e) |
on approved terms; and |
|
(f) |
through Approved Brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks
associations. |
|
22.4 |
Further protections for the Finance Parties |
In addition to the terms set out in Clause 22.3 (Terms of obligatory
insurances), each Borrower shall procure that the obligatory insurances shall:
|
(a) |
subject always to paragraph (b), name the relevant Borrower as the sole named insured unless the interest of every other named
insured is limited: |
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks; |
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and |
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and |
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically
against it; |
and every other named insured has undertaken in writing to the Security Agent (in such form as it requires acting on the instructions of the Facility Agent
acting on the instructions of the Majority Lenders) that any deductible shall be apportioned between the relevant Borrower and every other named insured in proportion to the gross claims made or paid by each of them and that it shall do all things
necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances;
|
(b) |
whenever the Facility Agent requires (acting on the instructions of the Majority Lenders), name (or be amended to name) the Security Agent as additional named insured for its rights and interests, warranted no
operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance; |
|
(c) |
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify (acting on the instructions of the Majority Lenders); |
|
(d) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever; |
|
(e) |
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and |
|
(f) |
provide that the Security Agent may make proof of loss if the relevant Borrower fails to do so. |
|
22.5 |
Renewal of obligatory insurances |
Each Borrower shall, in respect of the Ship owned by it:
|
(a) |
at least 21 days before the expiry of any obligatory insurance effected by it: |
|
(i) |
notify the Facility Agent of the Approved Brokers (or other insurers) and any protection and indemnity or war risks association through or with which that Borrower proposes to renew that obligatory insurance and of
the proposed terms of renewal; and |
|
(ii) |
obtain the Facility Agents' approval (acting on the instructions of the Majority Lenders) to the matters referred to in sub-paragraph (i)
above; |
|
(b) |
at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Facility Agent's approval pursuant to paragraph (a) above; and |
|
(c) |
procure that the Approved Brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Facility Agent in writing of
the terms and conditions of the renewal. |
|
22.6 |
Copies of policies; letters of undertaking |
Each Borrower shall, in respect of the Ship owned by it, ensure that the Approved Brokers provide the Security Agent with:
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and |
|
(b) |
a letter or letters or undertaking in a form required by the Facility Agent (acting on the instructions of the Majority Lenders) and including undertakings by the Approved Brokers that: |
|
(i) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 22.4 (Further protections for the Finance Parties); |
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause; |
|
(iii) |
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances; |
|
(iv) |
they will, if they have not received notice of renewal instructions from that Borrower or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory insurances; |
|
(v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions; |
|
(vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any premiums or other amounts due to them or any other person
whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not cancel such obligatory insurances by reason
of non-payment of such premiums or other amounts; and |
|
(vii) |
they will arrange for a separate policy to be issued in respect of the Ship owned by that Borrower forthwith upon being so requested by the Facility Agent. |
|
22.7 |
Copies of certificates of entry |
Each Borrower shall, in respect of the Ship owned by it, ensure that any protection and indemnity and/or war risks associations in which its Ship is entered
provide the Security Agent with:
|
(a) |
a certified copy of the certificate of entry for that Ship; |
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and |
|
(c) |
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to its Ship. |
|
22.8 |
Deposit of original policies |
Each Borrower shall ensure that all policies relating to obligatory insurances effected by it are deposited with the Approved Brokers through which the
insurances are effected or renewed.
Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by it and produce all relevant receipts
when so required by the Facility Agent (acting on the instructions of the Majority Lenders) or the Security Agent (acting on the instructions of the Facility Agent acting on the instructions of the Majority Lenders).
Each Borrower 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.
|
22.11 |
Compliance with terms of insurances |
|
(a) |
No Borrower shall do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable
under an obligatory insurance repayable in whole or in part. |
|
(b) |
Without limiting paragraph (a) above, each Borrower shall: |
|
(i) |
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in sub-paragraph (iii) of paragraph (b) of Clause 22.6 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Facility Agent has not given its prior
approval (acting on the instructions of the Majority Lenders); |
|
(ii) |
not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of the obligatory insurances; |
|
(iii) |
make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship owned by it, is entered
to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and |
|
(iv) |
not employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying
with any requirements (as to extra premium or otherwise) which the insurers specify. |
|
22.12 |
Alteration to terms of insurances |
No Borrower shall make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
|
22.13 |
Settlement of claims |
Each Borrower shall, in respect of the Ship owned by it:
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and |
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances. |
|
22.14 |
Provision of copies of communications |
Each Borrower shall, in respect of the Ship owned by it, provide the Security Agent, at the time of each such communication, with copies of all written
communications other than (unless specifically required by the Security Agent (acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders)) communications of an entirely routine nature between the
relevant Borrower and:
|
(a) |
the Approved Brokers; |
|
(b) |
the approved protection and indemnity and/or war risks associations; and |
|
(c) |
the approved insurance companies and/or underwriters, |
which relate directly or indirectly to:
|
(i) |
that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and |
|
(ii) |
any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory insurances. |
|
22.15 |
Provision of information |
Each Borrower shall, in respect of the Ship owned by it, promptly provide the Facility Agent (or any persons which it may designate) with any information
which the Facility Agent (or any such designated person) requests (acting on the instructions of the Majority Lenders) for the purpose of:
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or |
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 22.16 (Mortgagee's interest and additional
perils insurances) or dealing with or considering any matters relating to any such insurances, |
and each Borrower shall, forthwith upon demand, indemnify the Facility Agent in respect of all fees and other expenses incurred by or for the account of the
Facility Agent in connection with any such report as is referred to in paragraph (a) above once in each 12-months period (starting on the Utilisation Date) and at any
time when an Event of Default has occurred.
|
22.16 |
Mortgagee's interest and additional perils insurances |
|
(a) |
The Security Agent shall be entitled from time to time to effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils insurance each in an amount of up to 120 per
cent. of the Loan, on such terms, through such insurers and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate. |
|
(b) |
Each Borrower shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any
insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance. |
The undertakings in this Clause 23 (Ship Undertakings) remain in
force on and from the Utilisation Date and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit (which authorisation
no Lender shall unreasonably withhold in relation to paragraphs (b), (c), (d) and (e) of Clause 23.15 (Restrictions on chartering, appointment of managers etc.)).
|
23.2 |
Ship's names and registration |
Each Borrower shall, in respect of the Ship owned by it:
|
(a) |
keep that Ship registered in its name under the Approved Flag from time to time at its port of registration; |
|
(b) |
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; |
|
(c) |
not enter into any dual flagging arrangement in respect of that Ship; |
|
(d) |
not change the name of that Ship, |
provided that any change of flag of a Ship shall be subject to:
|
(i) |
that Ship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on that Ship and, if appropriate, a first priority deed of covenant collateral to that
mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage and on such other terms and in such other form as the Facility Agent, acting on the instructions of the Majority Lenders, shall approve or require;
and |
|
(ii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting on the instructions of the Majority Lenders, shall approve or require. |
|
23.3 |
Repair and classification |
Each Borrower shall keep the Ship in a good and safe condition and state of repair:
|
(a) |
consistent with first class ship ownership and management practice; and |
|
(b) |
so as to maintain the Approved Classification free of overdue recommendations and conditions with the Approved Classification Society. |
No Borrower shall make any modification or repairs to, or replacement of, any Ship or equipment installed on it which would or might materially alter the
structure, type or performance characteristics of that Ship or materially reduce its value.
|
23.5 |
Removal and installation of parts |
|
(a) |
Subject to paragraph (b) below, no Borrower shall remove any material part of any Ship, or any item of equipment installed on any
Ship unless: |
|
(i) |
the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed; |
|
(ii) |
the replacement part or item is free from any Security in favour of any person other than the Security Agent; and |
|
(iii) |
the replacement part or item becomes, on installation on that Ship, the property of the relevant Borrower owning that Ship and subject to the security constituted by the Mortgage. |
|
(b) |
A Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by that Borrower. |
Each Borrower shall submit the Ship owned by it regularly to all periodic or other surveys which may be required for classification purposes and, if so
required by the Facility Agent acting on the instructions of the Majority Lenders, provide the Facility Agent, with copies of all survey reports.
Each Borrower shall permit the Security Agent (acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders)
(acting through surveyors or other persons appointed by it for that purpose) to board its Ship at all reasonable times and upon reasonable notice and without interfering with that Ship's normal course of trading to inspect its condition or to satisfy
themselves about proposed or executed repairs and shall afford all proper facilities for such inspections. Each Borrower will be liable for the costs of the inspection for the Ship owned by it once in each 12-month period (starting on the Utilisation
Date) and at any time when an Event of Default has occurred.
|
23.8 |
Prevention of and release from arrest |
|
(a) |
Each Borrower shall, in respect of the Ship owned by it, promptly discharge: |
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances; |
|
(ii) |
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and |
|
(iii) |
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances. |
|
(b) |
Each Borrower shall immediately upon receiving notice of the arrest of its Ship or of its detention in exercise or purported exercise of any lien or claim, take all steps necessary to procure its release by providing
bail or otherwise as the circumstances may require. |
|
23.9 |
Compliance with laws etc. |
Each Borrower shall:
|
(a) |
comply, or procure compliance with all laws or regulations: |
|
(i) |
relating to its business generally; and |
|
(ii) |
relating to the Ship owned by it, its ownership, employment, operation, management and registration, |
including, but not limited to, the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions and the laws of the Approved Flag of the Ship owned by it;
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals; and |
|
(c) |
without limiting paragraph (a) above, not employ the Ship owned by it nor allow its employment, operation or management in any manner
contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions (or which would be contrary to Sanctions if Sanctions were binding on each Transaction Obligor). |
Without limiting paragraph (a) of Clause 23.9 (Compliance with laws etc.), each Borrower shall:
|
(a) |
procure that the Ship owned by it and the company responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and |
|
(b) |
maintain an ISSC for that Ship; and |
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC in respect of that Ship. |
|
23.11 |
Sanctions and Ship trading |
Without limiting Clause 23.9 (Compliance with laws etc.), each
Borrower shall procure:
|
(a) |
that the Ship owned by it shall not be used by or for the benefit of a Prohibited Person; |
|
(b) |
that such Ship shall not be used in trading in any manner contrary to Sanctions (or which could be contrary to Sanctions if Sanctions were binding on each Obligor); |
|
(c) |
that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances; and |
|
(d) |
that each charterparty in respect of that Ship shall contain, for the benefit of the relevant Borrower owning that Ship, language which gives effect to the provisions of paragraph (c) of Clause 23.9 (Compliance with laws etc.) as regards Sanctions and of this Clause 23.11 (Sanctions and Ship trading) and which permits refusal of employment or voyage orders if compliance would result in a breach of Sanctions (or which would
result in a breach of Sanctions if Sanctions were binding on each Obligor). |
|
23.12 |
Trading in war zones |
In the event of hostilities in any part of the world (whether war is declared or not), no Borrower shall cause or permit any Ship to enter
or trade to any zone which is declared a war zone by any government or by that Ship's war risks insurers unless:
|
(a) |
the prior written consent of the Security Agent acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders has been given; and |
|
(b) |
the relevant Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Agent acting on the instructions of the Facility Agent which is acting on the instructions of
the Majority Lenders may require. |
|
23.13 |
Provision of information |
Without prejudice to Clause 20.5 (Information: miscellaneous) the
Borrower shall promptly provide the Facility Agent with any information which it requests (acting on the instructions of the Majority Lenders) regarding:
|
(a) |
that Ship, its employment, position and engagements; |
|
(b) |
its Earnings and payments and amounts due to its master and crew; |
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it in respect of that Ship; |
|
(d) |
any towages and salvages; and |
|
(e) |
its compliance, each Approved Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code, |
and, upon the Facility Agent's request (acting on the instructions of the Majority Lenders), promptly provide copies of any current Charter relating to that
Ship, of any current guarantee of any such Charter, the relevant Ship's Safety Management Certificate and any relevant Document of Compliance.
|
23.14 |
Notification of certain events |
Each Borrower shall immediately notify the Facility Agent by fax or, subject to Clause 36.5 (Electronic communication), by electronic mail, confirmed forthwith by letter, of:
|
(a) |
any casualty to that Ship which is or is likely to be or to become a Major Casualty; |
|
(b) |
any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss; |
|
(c) |
any requisition of that Ship for hire; |
|
(d) |
any requirement or recommendation made in relation to its Ship by any insurer or classification society or by any competent authority which is not immediately complied with; |
|
(e) |
any arrest or detention of that Ship or any exercise or purported exercise of any lien on that Ship or its Earnings; |
|
(f) |
any intended dry docking of that Ship; |
|
(g) |
any Environmental Claim made against that Borrower or in connection with that Ship, or any Environmental Incident; |
|
(h) |
any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, an Approved Manager or otherwise in connection with that Ship; or |
|
(i) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with, |
and each Borrower shall keep the Facility Agent advised in writing on a regular basis and in such detail as the Facility Agent (acting on the instructions of
the Majority Lenders) shall require as to that Borrower's, any such Approved Manager's or any other person's response to any of those events or matters.
|
23.15 |
Restrictions on chartering, appointment of managers etc. |
No Borrower shall:
|
(a) |
let its Ship on demise charter for any period; |
|
(b) |
enter into any time, voyage or consecutive voyage charter in respect of that Ship other than a Permitted Charter; |
|
(c) |
terminate or materially amend or supplement a Management Agreement unless, in the case of termination, such Management Agreement is immediately replaced by another Management Agreement acceptable to the Facility
Agent with an Approved Manager and such Approved Manager provides a Manager’s Undertaking; |
|
(d) |
appoint a manager of that Ship other than an Approved Commercial Manager or an Approved Technical Manager or agree to any alteration to the terms of an Approved Manager's appointment; |
|
(e) |
de activate or lay up that Ship; or |
|
(f) |
put its Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $1,500,000 (or the equivalent in any other currency) unless that person has first
given to the Security Agent (acting on the instructions of the Facility Agent acting on the instructions of the Majority Lenders) and in terms satisfactory to it (acting on the instructions of the Facility Agent which is acting on the
instructions of the Majority Lenders) a written undertaking not to exercise any lien on its Ship or its Earnings for the cost of such work or for any other reason, provided that this paragraph (f) of Clause 23.15 (Restrictions on chartering, appointment of managers, etc.) will not apply in connection with the retrofitting of the Ship for the purpose of installing scrubbers or any other exhaust
gas cleaning or ballast water treatment system subject to the relevant Borrower providing to the Facility Agent no less than 5 Business Days prior notice. |
Each Borrower shall keep the Mortgage registered against its Ship as a valid first priority or preferred mortgage (as applicable), carry on board its Ship a
certified copy of that Mortgage and place and maintain in a conspicuous place in the navigation room and the master's cabin of its Ship a framed printed notice stating that its Ship is mortgaged by the relevant Borrower to the Security Agent.
|
23.17 |
Sharing of Earnings |
No Borrower enter into any agreement or arrangement for the sharing of any Earnings other than for the purposes of this Agreement.
Provided that all approvals necessary under Clause 23.15 (Restrictions
on chartering, appointment of managers etc.) have been previously obtained, each Borrower shall:
|
(a) |
provide promptly to the Facility Agent a true and complete copy of any Charter exceeding 6 months (including all amendments) and all other documents related thereto for a term which exceeds 13 months (including any
optional extensions and any redelivery allowance); and |
|
(b) |
in respect of any Charter for a term which exceeds 13 months (including any optional extensions and any redelivery allowance), execute and deliver to the Facility Agent a Charter Assignment together with each of the
documents required to be delivered pursuant to such Charter Assignment (each in the agreed form). |
|
23.19 |
Notification of compliance |
Each Borrower shall promptly provide the Facility Agent from time to time with evidence (in such form as the Facility Agent requires) (acting on the
instructions of the Majority Lenders) that it is complying with this Clause 23 (Ship Undertakings).
|
24.1 |
Minimum required security cover |
|
(a) |
Clause 24.2 (Provision of additional security; prepayment) applies if, at any time during the Security Period, the Facility
Agent (acting on the instructions of the Majority Lenders) notifies the Borrowers that: |
|
(i) |
the aggregate Market Value of the Ships; plus |
|
(ii) |
the aggregate of the credit balances held on the Earnings Accounts; plus |
|
(iii) |
the net realisable value of additional Security previously provided under this Clause 24 (Security Cover); |
is below the Relevant Percentage of the Loan.
|
(b) |
Compliance with this Clause 24 (Security Cover) will be tested on a quarterly basis throughout the Security Period and shall
be evidenced by a Compliance Certificate (commencing with the financial quarter ending on 30 September 2020). |
|
(c) |
In this Clause 24 (Security Cover): |
"Relevant Percentage" means during the period commencing:
|
(i) |
on the Utilisation Date and ending on the date falling 18 months thereafter (inclusive) (the "First Date"), 110 per cent. of the Loan; |
|
(ii) |
one day after the First Date and ending on the second anniversary of the Utilisation Date (inclusive) (the "Second Date"), 115 per cent. of the Loan; |
|
(iii) |
one day after the Second Date and ending on the third anniversary of the Utilisation Date (inclusive), 120 per cent. of the Loan; and |
|
(iv) |
at all other times thereafter, 130 per cent. of the Loan. |
|
24.2 |
Provision of additional security; prepayment |
|
(a) |
If the Facility Agent (acting on the instructions of the Majority Lenders) serves a notice on the Borrowers under Clause 24.1 (Minimum
required security cover), the Borrowers shall, on or before the date falling 20 Business Days after the date (the "Prepayment Date") on which the Facility Agent's notice is served, prepay such part of the Loan as shall eliminate the
shortfall. |
|
(b) |
A Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or ensure that a third party has
provided, additional security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders: |
|
(i) |
has a net realisable value at least equal to the shortfall; and |
|
(ii) |
is documented in such terms as the Facility Agent (acting on the instructions of the Majority Lenders) may approve or require, |
before the Prepayment Date; and conditional upon such security being provided in such manner, it shall satisfy such prepayment obligation.
|
24.3 |
Value of additional vessel security |
The net realisable value of any additional security which is provided under Clause 24.2
(Provision of additional security; prepayment) and which consists of Security over a vessel shall be the Market Value of the vessel concerned.
Any valuation under this Clause 24 (Security Cover) shall be binding
and conclusive as regards each Borrower.
|
24.5 |
Provision of information |
|
(a) |
Each Borrower shall promptly provide the Facility Agent and any shipbroker acting under this Clause 24 (Security Cover) with
any information which the Facility Agent (acting on the instructions of the Majority Lenders) or the shipbroker may request for the purposes of the valuation. |
|
(b) |
If a Borrower fails to provide the information referred to in paragraph (a) above by the date specified in the request, the valuation
may be made on any basis and assumptions which the shipbroker or the Facility Agent (acting on the instructions of the Majority Lenders) considers prudent. |
|
24.6 |
Prepayment mechanism |
Any prepayment pursuant to Clause 24.2 (Provision of additional
security; prepayment) shall be made in accordance with the relevant provisions of Clause 7 (Prepayment and Cancellation) and shall be treated as a voluntary
prepayment pursuant to Clause 7.3 (Voluntary prepayment of Loan).
|
24.7 |
Provision of valuations |
|
(a) |
The Borrowers shall provide to the Facility Agent (acting on the instructions of the Majority Lenders): |
|
(i) |
on a quarterly basis; and |
|
(ii) |
as at the date on which a Ship is to be sold or has become a Total Loss, |
one valuation of the Ship owned by it and any other vessel over which additional Security has been created in accordance with Clause 24.2 (Provision of additional security; prepayment), from one Approved Valuers selected and appointed by the Borrowers showing:
|
(A) |
the Market Value of each Ship for the purposes of Clause 24.1 (Minimum required security cover); and |
|
(B) |
the Market Value of any other vessel over which additional Security has been created in accordance with Clause 24.3 (Value of
additional vessel security), in order to enable it to determine the Market Value of those other vessels. |
Provided that, if the Facility Agent does not agree with the Market Value of that Ship determined by such sole valuation, it may obtain a second valuation of
that Ship or any other vessel over which additional Security has been created in accordance with Clause 24.2 (Provision of additional security; prepayment), from
one Approved Valuer selected and appointed by the Facility Agent and the Market Value of that Ship or such other vessel shall be the arithmetic mean of such two valuations, (with the arithmetic mean of any range to apply, if an Approved Valuer gives a
range).
|
(b) |
Upon the occurrence of an Event of Default, the Facility Agent shall be entitled to obtain (acting on the instructions of the Majority Lenders) at any time at that Borrowers' expense valuations of that Ship and any
other vessel over which additional Security has been created in accordance with Clause 24.2 (Provision of additional security; prepayment), from Approved
Valuers selected by the Facility Agent (acting on the instructions of the Majority Lenders), showing the Market Value of that Ship and each such vessel (which Market Value shall be notified to the Facility Agent in writing). |
|
25 |
Earnings Account and Application of Earnings |
No Borrower may, without the prior consent of the Facility Agent (acting on the instructions of the Majority Lenders), maintain any bank account other than
its Earnings Account.
Each Borrower shall ensure that, subject only to the provisions of the General Assignment to which it is a party, all the Earnings in respect of its Ship are
paid in to its Earnings Account.
|
25.3 |
Application of Earnings |
|
(a) |
Each Borrower shall transfer from its Earnings Account to the Facility Agent: |
|
(i) |
on each Repayment Date, the amount of the Repayment Instalment then due on that Repayment Date; and |
|
(ii) |
on the last day of each Interest Period, the amount of interest then due on that date; and |
|
(iii) |
on any day on which an amount is otherwise due from the Borrowers under a Finance Document, an amount necessary to meet that due amount, |
and each Borrower irrevocably authorizes the Facility Agent to apply the transferred amounts
in payment of the relevant Repayment Instalment, interest amount or other amount due.
|
(b) |
Any balance on the Earnings Accounts after the application of the transferred amounts pursuant to paragraph (a) above shall be available to the Borrowers, unless there is an Event of Default which is continuing or
unless an Event of Default would result from the withdrawal of any such balance (or any part thereof) from that Earnings Account. |
|
25.4 |
Shortfall in Earnings |
If the credit balance on an Earnings Account is insufficient for the required amount to be transferred under Clause 25.3 (Application of Earnings), the Borrowers shall make up the amount of the insufficiency.
|
25.5 |
Application of funds |
Until an Event of Default occurs, the Facility Agent shall on each Repayment Date and on each Interest Payment Date distribute to the Finance Parties in
accordance with Clause 33.2 (Distributions by the Facility Agent) so much of the then balance on the Earnings Accounts as equals:
|
(a) |
each Repayment Instalment due on that Repayment Date; |
|
(b) |
the amount of interest payable on that Interest Payment Date; and |
|
(c) |
the amount of any fee specified in a Fee Letter on its relevant due date, |
in discharge of the Borrowers' liability for that Repayment Instalment, that interest or that fee.
|
25.6 |
Location of Earnings Account |
Each Borrower shall promptly:
|
(a) |
comply with any requirement of the Facility Agent (acting on the instructions of the Majority Lenders) as to the location or relocation of the Earnings Account; and |
|
(b) |
execute any documents which the Facility Agent (acting on the instructions of the Majority Lenders) specifies to create or maintain in favour of the Security Agent, Security over (and/or rights of set-off,
consolidation or other rights in relation to) the Earnings Account. |
Each of the events or circumstances set out in this Clause 26 (Events of
Default) is an Event of Default except for Clause 26.20 (Acceleration) and Clause 26.21
(Enforcement of security).
A Transaction 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:
|
(a) |
its failure to pay is caused by: |
|
(i) |
administrative or technical error; or |
|
(ii) |
a Disruption Event; and |
|
(b) |
payment is made within 3 Business Days of its due date. |
|
26.3 |
Specific obligations |
A breach occurs of Clause 4.4 (Waiver of conditions precedent),
Clause 19 (Financial Covenants), Clause 21.11 (Title), Clause 21.12 (Negative pledge), Clause 21.21 (Unlawfulness, invalidity and ranking;
Security imperilled), Clause 22.2 (Maintenance of obligatory insurances), Clause 22.3
(Terms of obligatory insurances), Clause 22.5 (Renewal of obligatory insurances), Clause 23.3 (Repair and classification) or Clause 23.11 (Sanctions and Ship Trading).
|
(a) |
A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 26.2 (Non-payment)
and Clause 26.3 (Specific obligations)). |
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 10
Business Days of the Facility Agent giving notice to the Borrowers or (if earlier) any Transaction Obligor becoming aware of the failure to comply. |
Any representation or statement made or deemed to be made by a Transaction Obligor in the Finance Documents or any other document delivered by or on behalf of
any Transaction Obligor under or in connection with any Finance Document is or proves to have been materially incorrect or misleading when made or deemed to be made.
|
(a) |
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period. |
|
(b) |
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described). |
|
(c) |
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described). |
|
(d) |
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described). |
|
(e) |
No Event of Default will occur under this Clause 26.6 (Cross default) in respect of the Guarantor if the aggregate amount of
Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than $5,000,000 (or its equivalent in any other currency) in aggregate. |
|
(a) |
A Transaction Obligor: |
|
(i) |
is unable or admits inability to pay its debts as they fall due; |
|
(ii) |
is deemed to, or is declared to, be unable to pay its debts under applicable law; |
|
(iii) |
suspends or threatens to suspend making payments on any of its debts; or |
|
(iv) |
obtains or receives a deferral or suspension of payments, a rescheduling or re-organisation of debt (or certain debt) or an arrangement with all or a substantial proportion (by number or value) of creditors or of any
class of them in respect of such deferral, suspension, rescheduling or re-organisation, strictly by court order or by the filing of documents with a court. |
|
(b) |
A moratorium is officially declared in respect of any indebtedness of any Transaction Obligor. |
Provided however that:
|
(A) |
should a Transaction Obligor, by any reason, including without limitation, any actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (including any Finance Party in
its capacity as such) with a view to rescheduling, deferring, re-organising or suspending, any of its indebtedness, the existence of such negotiations or the entry, as a result of such negotiations, into any agreement or contract with one or more
creditors (including any Finance Party in its capacity as such) setting out the terms of any such rescheduling, deferral, reorganisation or suspension of its indebtedness, shall not in itself constitute an Event of Default; and |
|
(B) |
no Event of Default will occur under this Clause 26.7 (Insolvency) if any of the events described in paragraphs (a)-(b) above occurs in respect of an Approved Manager which is a member of the Group
and the relevant Borrower replaces such Approved Manager by another Approved Manager and delivers to the Facility Agent (in form and substance satisfactory to the Majority Lenders) the documents referred to at paragraph 4.3 of Part B (Conditions Precedent to Utilisation) of Schedule 2 (Conditions
Precedent) within 7 Business Days from the date of such occurrence. |
|
26.8 |
Insolvency proceedings |
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to: |
|
(i) |
the suspension of payments, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Transaction Obligor; |
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of any Transaction Obligor; |
|
(iii) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not a Transaction Obligor), receiver, administrator, administrative receiver, compulsory manager or
other similar officer in respect of any Transaction Obligor or any of its assets; or |
|
(iv) |
enforcement of any Security over any assets of any Transaction Obligor, |
or any analogous procedure or step is taken in any jurisdiction.
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed
within 14 days of commencement. |
|
(c) |
No Event of Default will occur under this Clause 26.8 (Insolvency proceedings) if any of the events described in paragraph (a)
above occurs in respect of an Approved Manager which is a member of the Group and the relevant Borrower replaces such Approved Manager by another Approved Manager and delivers to the Facility Agent (in form and substance satisfactory to the
Majority Lenders) the documents referred to at paragraph 3.3 of Part B (Conditions Precedent to Utilisation) of Schedule 2 (Conditions Precedent) within 7 Business Days from the date of such occurrence. |
Any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets of a
Transaction Obligor (other than an arrest or detention of a Ship referred to in Clause 26.14 (Arrest)) and is not discharged within 20 days (or such later period
agreed by the Facility Agent acting with the authorisation of the Majority Lenders in their absolute discretion).
|
26.10 |
Ownership of the Obligors |
|
(a) |
A Borrower is not or ceases to be a 100 per cent. directly or indirectly owned Subsidiary of the Guarantor. |
|
(b) |
Any person or group of persons acting in concert (other than Jelco Delta Holding Corp. and its ultimate beneficial owner) gains control of the Guarantor. |
|
(c) |
For the purpose of paragraph (b) above "control" means: |
|
(i) |
the power (whether by way of ownership of shares, partnership units, proxy, contract, agency or otherwise) to: |
|
(A) |
cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of the Guarantor; or |
|
(B) |
appoint or remove all, or the majority, of the directors or other equivalent officers of the Guarantor; or |
|
(C) |
give directions with respect to the operating and financial policies of the Guarantor with which the directors or other equivalent officers of the Guarantor are obliged to comply; and/or |
|
(ii) |
the holding beneficially of more than 50 per cent. of the issued shares of the Guarantor (excluding any part of that issued shares that carries no right to participate beyond a specified amount in a distribution of
either profits or capital). |
|
(d) |
For the purpose of paragraph (b) above "acting in concert" means a group of persons who, pursuant to an agreement or understanding
(whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Guarantor by any of them, either directly or indirectly, to obtain or consolidate control of the Guarantor. |
|
26.11 |
Unlawfulness, invalidity and ranking |
|
(a) |
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents. |
|
(b) |
Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable if that cessation individually or together with any other cessations materially or
adversely affects the interests of the Secured Parties under the Finance Documents. |
|
(c) |
Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is alleged by a party to it (other than a Finance Party) to be
ineffective. |
|
(d) |
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security. |
|
26.12 |
Security imperilled |
Any Security created or intended to be created by a Finance Document is in any way imperilled or in jeopardy the Security Agent (acting on the instructions of
the Facility Agent acting on the instructions of the Majority Lenders) has notified the relevant Transaction Obligor in writing of such matter and the relevant matter has not been remedied within 4 Business Days of the relevant Transaction Obligor
being so notified.
|
26.13 |
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.
Any arrest of a Ship or, as the case may be, the Collateral Ship, or its detention in the exercise or the purported exercise of any lien or claim unless it is
redelivered to the full control of the relevant Borrower or, as the case may be, the Collateral Owner, within 30 days of such arrest or detention.
The authority or ability of a Transaction Obligor (excluding the Collateral Shareholder) 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 Transaction Obligor or any of its assets, unless
such Transaction Obligor upon receiving notice of such event procures the release of the relevant assets and such assets are redelivered to the full control of that Transaction Obligor within 21 days of such event, other than:
|
(a) |
an arrest or detention of a Ship or, as the case may be, the Collateral Ship, referred to in Clause 26.14 (Arrest); or |
|
26.16 |
Repudiation and rescission of agreements |
A Transaction Obligor (or any other relevant party) rescinds or purports to rescind or repudiates or purports to repudiate a Transaction Document or any of
the Transaction Security or evidences an intention to rescind or repudiate a Transaction Document or any Transaction Security.
Any litigation, arbitration or administrative proceedings or investigations of, or before, any court, arbitral body or agency are started or threatened, or
any judgment or order of a court, arbitral body or agency is made, in relation to any of the Transaction Documents or the transactions contemplated in any of the Transaction Documents or against any Transaction Obligor or its assets which has or is
reasonably likely to have a Material Adverse Effect. No Event of Default will occur under this clause in respect of the Guarantor if the monetary value of the subject matter of such litigation, arbitration or administrative proceedings or
investigations is assessable and the combined value thereof does not exceed $5,000,000 (or its equivalent in any other currency) in aggregate.
|
26.18 |
Material adverse change |
Any event or circumstance occurs which has or is reasonably likely to have a Material Adverse Effect.
|
26.19 |
Collateral Events of Default |
The occurrence of a Collateral Event of Default which is continuing.
On and at any time after the occurrence of an Event of Default the Facility Agent may, and shall if so directed by the Majority Lenders, by notice to the
Borrowers:
|
(a) |
cancel the Total Commitments, whereupon they shall immediately be cancelled; |
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due
and payable; |
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders; and/or |
|
(d) |
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents, |
and the Facility Agent may serve notices under paragraphs (a), (b) and (c) above simultaneously or on different dates and the Security Agent may take any
action referred to in Clause 26.21 (Enforcement of security) if no such notice is served or simultaneously with or at any time after the service of any of such
notice Provided that if no direction is given by the Majority Lenders the Facility Agent shall not be obliged to take any action.
|
26.21 |
Enforcement of security |
On and at any time after the occurrence of an Event of Default the Security Agent may, and shall if so directed by the Majority Lenders, take any action
which, as a result of the Event of Default or any notice served under Clause 26.20 (Acceleration), the Security Agent is entitled to take under any Finance
Document or any applicable law or regulation provided that if no direction is given by the Majority Lenders the Facility Agent shall not be obliged to take any action.
Section 9
Changes to Parties
|
27 |
Changes to the Lenders |
|
27.1 |
Assignments and transfers by the Lenders |
Subject to this Clause 27 (Changes to the Lenders), a Lender (the "Existing
Lender") may without the consent of any Obligor:
|
(a) |
assign any of its rights; or |
|
(b) |
transfer by novation any of its rights and obligations, |
under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the
purpose of making, purchasing or investing in loans, securities or other financial assets or person (the "New Lender").
|
27.2 |
Conditions of assignment or transfer |
|
(a) |
An Existing Lender shall give to the Obligors no less than 15 days' notice prior to effecting an assignment or transfer unless the assignment or transfer is made at a time when an Event of Default has occurred and is
continuing. |
|
(b) |
An assignment will only be effective on: |
|
(i) |
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume
the same obligations to the other Secured Parties as it would have been under if it were an Original Lender; and |
|
(ii) |
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the
Facility Agent shall promptly notify to the Existing Lender and the New Lender. |
|
(c) |
Each Obligor on behalf of itself and each Transaction Obligor agrees that all rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are
assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which any Borrower or any other Transaction Obligor had against the Existing Lender. |
|
(d) |
A transfer will only be effective if the procedure set out in Clause 27.5 (Procedure for transfer) is complied with. |
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and |
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, a Transaction Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office
under Clause 11 (Tax Gross Up and Indemnities) or under that clause as incorporated by reference or in full in any other Finance Document or Clause 12 (Increased Costs), |
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the
Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. This paragraph (e) shall
not apply in respect of an assignment or transfer made in the ordinary course of the primary syndication of the Facility.
|
(f) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver
that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by
that decision to the same extent as the Existing Lender would have been had it remained a Lender. |
|
27.3 |
Assignment or transfer fee |
The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of $3,500.
|
27.4 |
Limitation of responsibility of Existing Lenders |
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents, the Transaction Security or any other documents; |
|
(ii) |
the financial condition of any Transaction Obligor; |
|
(iii) |
the performance and observance by any Transaction Obligor of its obligations under the Transaction Documents or any other documents; or |
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document, |
and any representations or warranties implied by law are excluded.
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it: |
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Transaction Obligor and its related entities in connection with its participation
in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document or the Transaction Security; and |
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout the Security Period. |
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to: |
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 27
(Changes to the Lenders); or |
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its obligations under the Transaction Documents or otherwise. |
|
27.5 |
Procedure for transfer |
|
(a) |
Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer), a transfer is effected in accordance
with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New
Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate. |
|
(b) |
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied in its sole discretion that it has complied with all necessary
"know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender. |
|
(c) |
Subject to Clause 27.9 (Pro rata interest settlement), on the Transfer Date: |
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the
Transaction Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance
Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and Obligations"); |
|
(ii) |
each of the Transaction Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that
Transaction Obligor and the New Lender have assumed and/or acquired the same in place of that Transaction Obligor and the Existing Lender; |
|
(iii) |
the Facility Agent, the Security Agent, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have
acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Security Agent and the Existing Lenders shall each
be released from further obligations to each other under the Finance Documents; and |
|
(iv) |
the New Lender shall become a Party as a "Lender". |
|
27.6 |
Procedure for assignment |
|
(a) |
Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer) an assignment may be effected in
accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and
the New Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment
Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement. |
|
(b) |
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied in its sole discretion it has complied with all necessary
"know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender. |
|
(c) |
Subject to Clause 27.9 (Pro rata interest settlement), on the Transfer Date: |
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment
Agreement; |
|
(ii) |
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is
bound in respect of the Transaction Security); and |
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations. |
|
(d) |
Lenders may utilise procedures other than those set out in this Clause 27.6 (Procedure for assignment) to assign their rights
under the Finance Documents (but not, without the consent of the relevant Transaction Obligor or unless in accordance with Clause 27.5 (Procedure for transfer),
to obtain a release by that Transaction Obligor from the obligations owed to that Transaction Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in
Clause 27.2 (Conditions of assignment or transfer). |
|
27.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower |
The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Borrowers a
copy of that Transfer Certificate or Assignment Agreement.
|
27.8 |
Security over Lenders' rights |
In addition to the other rights provided to Lenders under this Clause 27 (Changes
to the Lenders), each Lender may without consulting with or obtaining consent from any Transaction Obligor, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights
under any Finance Document to secure obligations of that Lender including, without limitation:
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and |
|
(b) |
any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, |
except that no such charge, assignment or Security shall:
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for a Lender as a party to any of the Finance Documents; or |
|
(ii) |
require any payments to be made by a Transaction Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the
Finance Documents. |
|
27.9 |
Pro rata interest settlement |
|
(a) |
If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 27.5 (Procedure for transfer) or any assignment pursuant to Clause 27.6 (Procedure
for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period): |
|
(i) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer
Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next
of the dates which falls at six Monthly intervals after the first day of that Interest Period); and |
|
(ii) |
The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt: |
|
(A) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and |
|
(B) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 27.9 (Pro
rata interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts. |
|
(b) |
In this Clause 27.9 (Pro rata interest settlement) references to "Interest Period" shall be construed to include a reference
to any other period for accrual of fees. |
|
(c) |
An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 27.9 (Pro rata interest settlement)
but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other
vote of Lenders under the Finance Documents. |
|
28 |
Changes to the Transaction Obligors |
|
28.1 |
Assignment or transfer by Transaction Obligors |
No Transaction Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
|
(a) |
If a disposal of any asset subject to security created by a Security Document is made in the following circumstances: |
|
(i) |
the disposal is permitted by the terms of any Finance Document; |
|
(ii) |
the Majority Lenders agree to the disposal; |
|
(iii) |
the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or |
|
(iv) |
the disposal is being effected by enforcement of a Security Document, |
the Security Agent (acting on the instructions of the Facility Agent acting on the instructions of the Majority Lenders) shall release the asset(s) being
disposed of from any security over those assets created by a Security Document. However, the proceeds of any disposal (or an amount corresponding to them) must be applied in accordance with the requirements of the Finance Documents (if any).
|
(b) |
Without prejudice to paragraph (a) of this Clause 28.2 (Release of security), at the end of the Security Period (or upon the
Total Loss or sale of the Ship and payment of all amounts due by the Borrowers under the terms of this Agreement) the Security Agent shall release the Transaction Security. |
|
(c) |
If the Security Agent (acting on the instructions of the Facility Agent acting on the instructions of the Majority Lenders) is satisfied that a release is allowed under this Clause 28.2 (Release of security) (at the request and expense of the Borrowers) each Finance Party must enter into any document and do all such other things which are reasonably required to
achieve that release. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. Any release will not affect the obligations of any other Transaction Obligor under the Finance Documents. |
Section 10
The Finance Parties
|
29.1 |
Appointment of the Facility Agent |
|
(a) |
Each of the Lenders appoints the Facility Agent to act as its agent under and in connection with the Finance Documents. |
|
(b) |
Each of the Lenders authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent
under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
|
(a) |
The Facility Agent shall: |
|
(i) |
exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent (including, without limitation, make any designation, determination, specification or demand, approve an
evidence or the form of a document, serve a notice, grant an approval or a consent or refrain from taking any such action), upon receipt of and in accordance with any instructions given to it by: |
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and |
|
(B) |
in all other cases, the Majority Lenders; and |
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) (A) in accordance with sub-paragraph (i) above (or, if
this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties) or (B) in its capacity as Facility Agent
under the Transaction Documents. |
|
(b) |
The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other
Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may
refrain from acting unless and until it receives any such instructions or clarification that it has requested. |
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any
instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties. |
|
(d) |
Without prejudice to paragraph (a)(ii) above, paragraph (a)(i) above shall not apply: |
|
(i) |
where a contrary indication appears in a Finance Document; |
|
(ii) |
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action; |
|
(iii) |
in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties. |
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 42 (Amendments and Waivers), the Facility Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Facility Agent)
whose consent would have been required in respect of that amendment or waiver. |
|
(f) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion
require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those
instructions. |
|
(g) |
Without prejudice to the remainder of this Clause 29.2 (Instructions), in the absence of instructions, the Facility Agent
shall not be obliged to take any action (or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties. |
|
(h) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph
(h) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents. |
|
29.3 |
Duties of the Facility Agent |
|
(a) |
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature. |
|
(b) |
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document or notice
which is delivered to the Facility Agent for that Party by any other Party. |
|
(c) |
Without prejudice to Clause 27.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement. |
|
(d) |
Notwithstanding anything set out in a Transaction Document, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. |
|
(e) |
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a circumstance and stating that the circumstance described is a Default, it shall promptly notify the other Finance
Parties but shall not have any duty to verify whether the circumstance described has actually occurred or whether it constitutes a Default. |
|
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest or any fee payable to a Finance Party under this Agreement, it shall promptly notify the other Finance Parties. |
|
(g) |
The Facility Agent shall provide to the Borrowers within 5 Business Days of a request by the Borrowers (but no more frequently than once per calendar quarter), a list (which may be in electronic form) setting out the
names of the Lenders as at that Business Day, their respective Commitments, the address and fax number (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or
document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by
each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Facility Agent to that Lender under the Finance
Documents. |
|
(h) |
The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied). |
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent as a trustee or fiduciary of any other person. |
|
(b) |
The Facility Agent shall not be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account. |
|
29.5 |
Application of receipts |
Except as expressly stated to the contrary in any Finance Document, any moneys which the Facility Agent receives or recovers in its capacity as Facility Agent
shall be applied by the Facility Agent in accordance with Clause 33.5 (Application of receipts; partial payments).
|
29.6 |
Business with the Group |
The Facility Agent may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.
|
29.7 |
Rights and discretions |
|
(a) |
The Facility Agent may: |
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; |
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and |
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and |
|
(iii) |
rely on a certificate from any person: |
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing, |
as sufficient evidence that that is the case and, in the case of paragraph (A)
above, may assume the truth and accuracy of that certificate.
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that: |
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 26.2 (Non-payment)); |
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and |
|
(iii) |
any notice or request made by the Borrowers (other than the Utilisation Request) is made on behalf of and with the consent and knowledge of all the Transaction Obligors. |
|
(c) |
The Facility Agent may engage (at the Borrowers' expense) the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts. |
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage (at the Borrowers' expense) the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the
Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable. |
|
(e) |
The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and
shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying. |
|
(f) |
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not: |
|
(i) |
be liable for any error of judgment made by any such person; or |
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person, |
unless such error or such loss was directly caused by the Facility Agent's gross negligence or wilful misconduct.
|
(g) |
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents. |
|
(h) |
Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of confidentiality. |
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties,
obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably
assured to it. |
|
29.8 |
Responsibility for documentation |
The Facility Agent is not responsible or liable for:
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, a Transaction Obligor or any other person in, or in connection with, any
Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; or |
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation
of, under or in connection with, any Transaction Document or the Security Property; or |
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or
regulation relating to insider dealing or otherwise. |
The Facility Agent shall not be bound to enquire:
|
(a) |
whether or not any Default has occurred; |
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or |
|
(c) |
whether any other event specified in any Transaction Document has occurred. |
|
29.10 |
Exclusion of liability |
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 33.11 (Disruption to Payment Systems etc.) or any other provision of any Finance Document excluding or limiting the
liability of the Facility Agent), the Facility Agent will not be liable for: |
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the
Security Property, unless directly caused by its gross negligence or wilful misconduct; |
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or |
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or |
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii)
above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever) arising as a result of: |
|
(A) |
any act, event or circumstance not reasonably within its control; or |
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction, |
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of nationalisation,
expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown,
failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
|
(b) |
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act
or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act. |
|
(c) |
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has
taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose. |
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent to carry out: |
|
(i) |
any "know your customer" or other checks in relation to any person; or |
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party, |
on behalf of any Finance Party and each Finance Party confirms to the Facility Agent that it is solely responsible for any such checks it is required to carry
out and that it may not rely on any statement in relation to such checks made by the Facility Agent.
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Transaction Document or the
Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss
arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of
profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages. |
|
29.11 |
Lenders' indemnity to the Facility Agent |
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the
Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss
or liability pursuant to Clause 33.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any other
category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by a Transaction Obligor pursuant to a
Finance Document). |
|
(b) |
Subject to paragraph (c) below, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to
the Facility Agent pursuant to paragraph (a) above. |
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which a Lender claims reimbursement
relates to a liability of the Facility Agent to an Obligor. |
|
29.12 |
Resignation of the Facility Agent |
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers. |
|
(b) |
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority Lenders may appoint a successor Facility Agent. |
|
(c) |
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after
notice of resignation was given (or such earlier day as may be agreed by the Majority Lenders), the retiring Facility Agent may (but shall not be obliged to), appoint a successor Facility Agent. |
|
(d) |
The retiring Facility Agent shall, at the Borrowers' cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request
for the purposes of performing its functions as Facility Agent under the Finance Documents. The Borrowers shall indemnify the retiring Facility Agent prior to it being required to undertake any actions referred to in this sub-paragraph for the
amount of all costs and expenses (including legal fees) to be properly incurred by it in making available such documents and records and providing such assistance. |
|
(e) |
The retiring Facility Agent's resignation notice shall only take effect upon the appointment of a successor. |
|
(f) |
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit of Clause 13.3 (Indemnity to
the Facility Agent) and this Clause 29 (The Facility Agent ) and any other provisions of a Finance Document which are expressed to limit or exclude
its liability (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date. Any successor and each of the other Parties shall have the
same rights and obligations amongst themselves as they would have had if such successor had been an original Party. |
|
(g) |
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this
event, the Facility Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrowers. |
|
(h) |
The consent of the Borrowers (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent in accordance with this Agreement. |
|
(i) |
The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable
endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA
Application Date relating to any payment to the Facility Agent under the Finance Documents, either: |
|
(i) |
the Facility Agent fails to respond to a request under Clause 11.7 (FATCA Information) and a Lender reasonably believes that
the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
|
(ii) |
the information supplied by the Facility Agent pursuant to Clause 11.7 (FATCA Information) indicates that the Facility Agent
will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or |
|
(iii) |
the Facility Agent notifies the Borrowers and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
and (in each case) a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were
a FATCA Exempt Party, and that Lender, by notice to the Facility Agent, requires it to resign.
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or
departments. |
|
(b) |
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that
information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party. |
|
(c) |
Without prejudice to Clause 29.4 (No fiduciary duties), the Facility Agent is not obliged to disclose to any other person (i)
any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty. |
|
29.14 |
Relationship with the other Finance Parties |
|
(a) |
Subject to Clause 27.9 (Pro rata interest settlement), the Facility Agent may treat a person shown in its records as Lender at
the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as a Lender acting through its Facility Office. |
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and |
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day, |
unless it has received not less than five Business Days' prior written notice from that Lender to the contrary in accordance with the terms of this Agreement.
|
(b) |
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to
perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent and any reference to any instructions being given by or
sought from any Finance Party or group of Finance Parties to or by the Security Agent in this Agreement must be given or sought through the Facility Agent. |
|
(c) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents.
Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 36.5 (Electronic
communication)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made)
and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 36.2 (Addresses) and sub-paragraph (ii) of paragraph (a)
of Clause 36.5 (Electronic communication) and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices,
communications, information and documents as though that person were that Lender. |
|
29.15 |
Credit appraisal by the Finance Parties |
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Transaction Document,
each Finance Party confirms to the Facility Agent that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under, or in connection with, any Transaction Document
including but not limited to:
|
(a) |
the financial condition, status and nature of each Transaction Obligor; |
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Transaction Document or the Security Property; |
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security Property,
the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property; |
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated by any
Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and |
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security
Assets. |
|
29.16 |
Facility Agent's management time |
Any amount payable to the Facility Agent under Clause 13.3 (Indemnity to
the Facility Agent), Clause 15 (Costs and Expenses) and Clause 29.11 (Lenders'
indemnity to the Facility Agent) shall include the cost of utilising the Facility Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Facility Agent may notify to the
Borrowers and the other Finance Parties, and is in addition to any fee paid or payable to the Facility Agent under Clause 10 (Fees). The Facility Agent shall as
soon as reasonably practicable notify the Borrowers in writing of any extraordinary management time which the Facility Agent is envisaging to spend.
|
29.17 |
Deduction from amounts payable by the Facility Agent |
If any Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so deducted.
|
29.18 |
Reliance and engagement letters |
Each Secured Party confirms that the Facility Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports
already accepted by the Facility Agent) the terms of any reliance letter or engagement letters or any reports or letters provided by accountants, auditors or providers of due diligence reports in connection with the Finance Documents or the
transactions contemplated in the Finance Documents and to bind it in respect of those, reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.
|
29.19 |
Full freedom to enter into transactions |
Without prejudice to Clause 29.6 (Business with the Group) or any
other provision of a Finance Document and notwithstanding any rule of law or equity to the contrary, the Facility Agent shall be absolutely entitled:
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance Document
(including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Transaction
Obligor or any person who is party to, or referred to in, a Finance Document); |
|
(b) |
to deal in and enter into and arrange transactions relating to: |
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or |
|
(ii) |
any options or other derivatives in connection with such securities; and |
|
(c) |
to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document, |
and, in particular, the Facility Agent shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions
and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain
from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.
|
29.20 |
Majority Lenders' Instructions |
|
(a) |
Notwithstanding anything to the contrary contained in the Transaction Documents, the Parties acknowledge that where any provision in a Transaction Document refers to the Facility Agent being obliged to or entitled to
take any specified action, exercise any discretion, make any determination, give any consent or waiver, or act in a certain way in connection with the transactions contemplated by the Transaction Documents, it shall or may (as the case may be)
take such specified action, exercise such discretion, make such determination, give any consent in accordance with the instructions or directions of the Majority Lenders or all Lenders (as the case may be) and in doing so shall be deemed to have
acted reasonably. |
|
(b) |
Any instructions given by the Majority Lenders or the Lenders shall be in writing and any instructions by the Majority Lenders on matters which do not require the consent or instructions of all the Lenders as
specified in this Agreement shall be binding on all the Lenders. |
|
(c) |
The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders or the Lenders (as the case may be) until it has received such security as it may require for any cost, loss or
liability (together with any associated VAT) which it may incur in complying with the instructions. |
|
(d) |
In the absence of instructions from the Majority Lenders the Facility Agent shall not be obliged to take action. |
|
(e) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining the relevant Finance Party's consent) in any legal or arbitration proceedings relating to any Transaction Document. |
|
(a) |
The Security Agent declares that it holds the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause 30 (The Security Agent) and the other provisions of the Finance Documents. |
|
(b) |
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent
under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
|
30.2 |
Parallel Debt (Covenant to pay the Security Agent) |
|
(a) |
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt. |
|
(b) |
The Parallel Debt of an Obligor: |
|
(i) |
shall become due and payable at the same time as its Corresponding Debt; |
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt. |
|
(c) |
For the purposes of this Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent: |
|
(i) |
is the independent and separate creditor of each Parallel Debt; |
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and |
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and
applications for and voting in any kind of insolvency proceeding). |
|
(d) |
The Parallel Debt of an Obligor shall be: |
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and |
|
(ii) |
increased to the extent that its Corresponding Debt has increased, |
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, |
in each case provided that the Parallel Debt of an Obligor shall never exceed its Corresponding Debt.
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause 30.2 (Parallel Debt (Covenant to pay the
Security Agent)) to the extent permitted by applicable law, shall be applied in accordance with Clause 33.5 (Application of receipts; partial payments). |
|
(f) |
This Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each
Finance Document. |
|
30.3 |
Enforcement through Security Agent only |
The Secured 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 under the Security Documents except through the Security Agent.
|
(a) |
The Security Agent shall: |
|
(i) |
exercise or refrain from exercising any right, power, authority or discretion (including, without limitation, make any designation, determination, specification or demand, approve an evidence or the form of a
document, serve a notice, grant an approval or a consent or refrain from taking any such action), vested in it as Security Agent upon receipt of and in accordance with any instructions given to it by: |
|
(A) |
all Lenders (or the Facility Agent on their behalf) if the relevant Finance Document stipulates the matter is an all Lender decision; and |
|
(B) |
in all other cases, the Majority Lenders (or the Facility Agent on their behalf); and |
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) (A) in accordance with sub-paragraph (i) above (or if
this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, in accordance with instructions given to it by that Finance Party or group of Finance Parties) or (B) in its capacity as Security Agent
under the Transaction Documents. |
|
(b) |
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or the Facility Agent on their behalf) (or, if the relevant Finance Document stipulates
the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or
discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested. |
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any
instructions given to the Security Agent by the Facility Agent (acting on the instructions of the Majority Lenders) shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties. |
|
(d) |
Without prejudice to paragraph (a)(ii) above, paragraph (a)(i) above shall not apply: |
|
(i) |
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties. |
|
(ii) |
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of: |
|
(A) |
Clause 30.28 (Application of receipts); |
|
(B) |
Clause 30.29 (Permitted Deductions); and |
|
(C) |
Clause 30.30 (Prospective liabilities). |
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 42 (Amendments and Waivers), the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent)
whose consent would have been required in respect of that amendment or waiver. |
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either: |
|
(i) |
it has not received any instructions as to the exercise of that discretion; or |
|
(ii) |
the exercise of that discretion is subject to sub-paragraph (ii) of paragraph (d) above, |
the Security Agent shall do so having regard to the interests of all the Secured Parties.
|
(g) |
The Security Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion
require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those
instructions. |
|
(h) |
Without prejudice to the remainder of this Clause 30.4 (Instructions), in the absence of instructions, the Security Agent may
(but shall not be obliged to) take such action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate. |
|
(i) |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph
(h) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or
enforcement of the Transaction Security or Security Documents. |
|
30.5 |
Duties of the Security Agent |
|
(a) |
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature. |
|
(b) |
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party. |
|
(c) |
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. |
|
(d) |
If the Security Agent receives notice from a Party referring to any Finance Document, describing a circumstance and stating that the circumstance described is a Default, it shall promptly notify the other Finance
Parties but shall not have any duty to verify whether the circumstances described has actually occurred or whether it constitutes a Default. |
|
(e) |
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied). |
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Transaction Obligor or any other person. |
|
(b) |
The Security Agent shall not be bound to account to any other Secured Party for any sum or the profit element of any sum received by it for its own account. |
|
30.7 |
Business with the Group |
The Security Agent may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.
|
30.8 |
Rights and discretions |
|
(a) |
The Security Agent may: |
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; |
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; |
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and |
|
(C) |
if it receives any instructions to act in relation to the Transaction Security, that all applicable conditions under the Finance Documents for so acting have been satisfied; and |
|
(iii) |
rely on a certificate from any person: |
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing, |
as sufficient evidence that that is the case and, in the case of paragraph (A)
above, may assume the truth and accuracy of that certificate.
|
(b) |
The Security Agent shall be entitled to carry out all dealings with the other Finance Parties through the Facility Agent and may give to the Facility Agent any notice or other communication required to be given by
the Security Agent to any Finance Party. |
|
(c) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that: |
|
(i) |
no Default has occurred; |
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and |
|
(iii) |
any notice or request made by the Borrowers (other than the Utilisation Request) is made on behalf of and with the consent and knowledge of all the Transaction Obligors. |
|
(d) |
The Security Agent may engage (at the Borrowers' cost) the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts. |
|
(e) |
Without prejudice to the generality of paragraph (c) above or paragraph (f) below, the Security Agent may at any time engage (at the Borrowers' cost) for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the
Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable. |
|
(f) |
The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Security Agent or by any other Party) and
shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying. |
|
(g) |
The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not: |
|
(i) |
be liable for any error of judgment made by any such person; or |
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person, |
unless such error or such loss was directly caused by the Security Agent's gross negligence or wilful misconduct.
|
(h) |
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents. |
|
(i) |
Without prejudice to Clause 30.6 (No fiduciary duties) and notwithstanding any other provision of any Finance Document to the
contrary, the Security Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. |
|
(j) |
Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties,
obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably
assured to it. |
|
30.9 |
Responsibility for documentation |
None of the Security Agent, any Receiver or Delegate is responsible or liable for:
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, a Transaction Obligor or any other person in, or in connection with, any
Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; |
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation
of, under or in connection with, any Transaction Document or the Security Property; or |
|
(c) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to
insider dealing or otherwise. |
The Security Agent shall not be bound to enquire:
|
(a) |
whether or not any Default has occurred; |
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or |
|
(c) |
whether any other event specified in any Transaction Document has occurred. |
|
30.11 |
Exclusion of liability |
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the
liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for: |
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document or the
Security Property, unless directly caused by its gross negligence or wilful misconduct; |
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or |
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or |
|
(iv) |
without prejudice to the generality of sub-paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever) arising as a result of: |
|
(A) |
any act, event or circumstance not reasonably within its control; or |
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction, |
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of nationalisation,
expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown,
failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
|
(b) |
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any
claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer,
employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of
the Third Parties Act. |
|
(c) |
The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Security Agent if the Security Agent has
taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Security Agent for that purpose. |
|
(d) |
Nothing in this Agreement shall oblige the Security Agent to carry out: |
|
(i) |
any "know your customer" or other checks in relation to any person; or |
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party, |
on behalf of any Finance Party and each Finance Party confirms to the Security Agent that it is solely responsible for any such checks it is required to carry
out and that it may not rely on any statement in relation to such checks made by the Security Agent.
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate, any liability of the Security Agent or any Receiver or Delegate
arising under or in connection with any Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of
default of the Security Agent. Receiver or Delegate or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Agent, any Receiver or
Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special,
punitive, indirect or consequential damages, whether or not the Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages. |
|
30.12 |
Lenders' indemnity to the Security Agent |
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the
Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's, Receiver's or Delegate's gross negligence
or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, Receiver or Delegate has been reimbursed by a Transaction Obligor pursuant to a Finance Document). |
|
(b) |
Subject to paragraph (c) below, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to
the Security Agent pursuant to paragraph (a) above. |
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which a Lender claims reimbursement
relates to a liability of the Security Agent to an Obligor. |
|
30.13 |
Resignation of the Security Agent |
|
(a) |
The Security Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers. |
|
(b) |
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority Lenders may appoint a successor Security Agent. |
|
(c) |
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after
notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent. |
|
(d) |
The retiring Security Agent shall, at the Borrowers' cost, make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request
for the purposes of performing its functions as Security Agent under the Finance Documents. The Borrowers shall indemnify the retiring Security Agent prior to it being required to undertake any actions referred to in this sub-paragraph for the
amount of all costs and expenses (including legal fees) to be properly incurred by it in making available such documents and records and providing such assistance. |
|
(e) |
The Security Agent's resignation notice shall only take effect upon: |
|
(i) |
the appointment of a successor; and |
|
(ii) |
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor. |
|
(f) |
Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its
obligations under paragraph (b) of Clause 30.25 (Winding up of trust) and
paragraph (d) above) but shall remain entitled to the benefit of Clause 13.4 (Indemnity
to the Security Agent) and this Clause 30 (The Security Agent) and any other provisions of a Finance Document which are expressed to limit or exclude
its liability (or to indemnify it) in acting as Security Agent. Any fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the
same rights and obligations amongst themselves as they would have had if such successor had been an original Party. |
|
(g) |
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this
event, the Security Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrowers. |
|
(h) |
The consent of the Borrowers (or any other Transaction Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent. |
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or
departments. |
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that
information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party. |
|
(c) |
Without prejudice to Clause 30.6 (No fiduciary duties) and notwithstanding any other provision of any Finance Document to the
contrary, the Security Agent is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation
or a breach of a fiduciary duty. |
|
30.15 |
Credit appraisal by the Finance Parties |
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Transaction Document,
each Finance Party confirms to the Security Agent that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under, or in connection with, any Transaction Document
including but not limited to:
|
(a) |
the financial condition, status and nature of each Transaction Obligor; |
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Transaction Document or the Security Property; |
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security Property,
the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security Property; |
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions contemplated by any
Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and |
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security
Assets. |
|
30.16 |
Security Agent's management time |
|
(a) |
Any amount payable to the Security Agent under Clause 13.4 (Indemnity to the Security Agent), Clause 15 (Costs and Expenses) and Clause 30.12 (Lenders' indemnity to the
Security Agent) shall include the cost of utilising the Security Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Security Agent may notify to the Borrowers and
the other Finance Parties, and is in addition to any fee paid or payable to the Security Agent under Clause 10 (Fees). The Security Agent shall as soon as
reasonably practicable notify the Borrowers in writing of any extraordinary management time which the Security Agent is envisaging to spend. |
|
(b) |
Without prejudice to paragraph (a) above, in the event of: |
|
(ii) |
the Security Agent being requested by a Transaction Obligor or the Majority Lenders to undertake duties which the Security Agent and the Borrowers agree to be of an exceptional nature or outside the scope of the
normal duties of the Security Agent under the Finance Documents; or |
|
(iii) |
the Security Agent and the Borrowers agreeing that it is otherwise appropriate in the circumstances, |
the Borrowers shall pay to the Security Agent any additional remuneration (together with any applicable VAT) that may be agreed between them or determined
pursuant to paragraph (c) below.
|
(c) |
If the Security Agent and the Borrowers fail to agree upon the nature of the duties, or upon the additional remuneration referred to in paragraph (b) above or whether additional remuneration is appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Agent and approved by
the Borrowers or, failing approval, nominated (on the application of the Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the
Borrowers) and the determination of any investment bank shall be final and binding upon the Parties. |
|
30.17 |
Reliance and engagement letters |
Each Secured Party confirms that the Security Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports
already accepted by the Security Agent) the terms of any reliance letter or engagement letters or any reports or letters provided by accountants, auditors or providers of due diligence reports in connection with the Finance Documents or the
transactions contemplated in the Finance Documents and to bind it in respect of those, reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.
|
30.18 |
No responsibility to perfect Transaction Security |
The Security Agent shall not be liable for any failure to:
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Security Assets; |
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security; |
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any
Finance Document or of the Transaction Security; |
|
(d) |
take, or to require any Transaction Obligor to take, any step to perfect its title to any of the Security Assets or to render the Transaction Security effective or to secure the creation of any ancillary Security
under any law or regulation; or |
|
(e) |
require any further assurance in relation to any Security Document. |
|
30.19 |
Insurance by Security Agent |
|
(a) |
The Security Agent shall not be obliged: |
|
(i) |
to insure any of the Security Assets; |
|
(ii) |
to require any other person to maintain any insurance; or |
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document, |
and the Security Agent shall not be liable for any damages, costs or losses to any person as a result of the lack of, or inadequacy of, any such insurance.
|
(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. |
|
30.20 |
Custodians and nominees |
The Security Agent may appoint and pay any person to act as a custodian or nominee on any terms in relation to any asset of the trust as the Security Agent
may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created under this Agreement and the Security Agent shall not be responsible for any loss, liability, expense, demand, cost,
claim or proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the proceedings or acts of any person.
|
30.21 |
Delegation by the Security Agent |
|
(a) |
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in
its capacity as such. |
|
(b) |
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its
discretion, think fit in the interests of the Secured Parties. |
|
(c) |
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such
delegate or sub delegate. |
|
30.22 |
Additional Security Agents |
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it: |
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or |
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or |
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction, |
and the Security Agent shall give prior notice to the Borrowers and the Finance Parties of that appointment.
|
(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. |
|
30.23 |
Acceptance of title |
The Security Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any Transaction Obligor may
have to any of the Security Assets and shall not be liable for or bound to require any Transaction Obligor to remedy any defect in its right or title.
Upon a disposal of any of the Security Assets pursuant to the enforcement of the Transaction Security by a Receiver, a Delegate or the Security Agent, the
Security Agent is irrevocably authorised (at the cost of the Obligors and without any consent, sanction, authority or further confirmation from any other Secured Party) to release, without recourse or warranty, that property from the Transaction
Security and to execute any release of the Transaction Security or other claim over that asset and to issue any certificates of non-crystallisation of floating charges that may be required or desirable.
|
30.25 |
Winding up of trust |
If the Security Agent, with the approval of the Facility Agent (acting on the instructions of the Majority Lenders) determines (acting on the instructions of
the Majority Lenders) that:
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and |
|
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Transaction Obligor pursuant to the Finance Documents, |
then
|
(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 30.13 (Resignation of the Security Agent) shall release, without
recourse or warranty, all of its rights under each Security Document. |
|
30.26 |
Powers supplemental to Trustee Acts |
The rights, powers, authorities and discretions given to the Security Agent under or in connection with the Finance Documents shall be supplemental to the
Trustee Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Agent by law or regulation or otherwise.
|
30.27 |
Disapplication of Trustee Acts |
Section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement and the other
Finance Documents. Where there are any inconsistencies between (i) the Trustee Acts 1925 and 2000 and (ii) the provisions of this Agreement and any other Finance Document, the provisions of this Agreement and any other Finance Document shall, to the
extent permitted by law and regulation, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of this Agreement and any other Finance Document shall constitute a restriction or exclusion for the purposes of the Trustee
Act 2000.
|
30.28 |
Application of receipts |
All amounts from time to time received or recovered by the Security Agent pursuant to the terms of any Finance Document, under Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent)) or in connection with the realisation or enforcement of all or any part of the Security Property (for the
purposes of this Clause 30 (The Security Agent), the "Recoveries") shall be held by the Security Agent on trust to apply them at any time as the Security
Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the remaining provisions of this Clause 30 (The Security Agent)), in
the following order of priority:
|
(a) |
in discharging any sums owing to the Security Agent (in its capacity as such) other than pursuant to Clause 30.2 (Parallel Debt
(Covenant to pay the Security Agent)) or any Receiver or Delegate; |
|
(b) |
in payment or distribution to the Facility Agent, on its behalf and on behalf of the other Secured Parties, for application towards the discharge of all sums due and payable by any Transaction Obligor under any of
the Finance Documents in accordance with Clause 33.5 (Application of receipts; partial payments); |
|
(c) |
if none of the Transaction Obligors is under any further actual or contingent liability under any Finance Document, in payment or distribution to any person to whom the Security Agent is obliged to pay or distribute
in priority to any Transaction Obligor; and |
|
(d) |
the balance, if any, in payment or distribution to the relevant Transaction Obligor. |
|
30.29 |
Permitted Deductions |
The Security Agent may, in its discretion:
|
(a) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any
distribution or payment made by it under this Agreement; and |
|
(b) |
pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance
Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement). |
|
30.30 |
Prospective liabilities |
Following enforcement of any of the Transaction Security, the Security Agent may, in its discretion, or at the request of the Facility Agent, hold any
Recoveries in a suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit for later payment to the Facility Agent for application in
accordance with Clause 30.28 (Application of receipts) in respect of:
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and |
|
(b) |
any part of the Secured Liabilities, |
that the Security Agent or, in the case of paragraph (b) only, the Facility
Agent, reasonably considers, in each case, might become due or owing at any time in the future.
|
30.31 |
Investment of proceeds |
Prior to the payment of the proceeds of the Recoveries to the Facility Agent for application in accordance with Clause 30.28 (Application of receipts) the Security Agent may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security
Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) pending the payment from time to time of those moneys in the Security Agent's
discretion in accordance with the provisions of Clause 30.28 (Application of receipts).
|
30.32 |
Currency conversion |
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of
exchange available to the Security Agent in its usual course of business. |
|
(b) |
The obligations of any Transaction Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
|
(a) |
Any payment to be made in respect of the Secured Liabilities by the Security Agent may be made to the Facility Agent on behalf of the Secured Parties and any payment made in that way shall be a good discharge, to the
extent of that payment, by the Security Agent. |
|
(b) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) above in the same currency
as that in which the obligations and liabilities owing to the relevant Finance Party are denominated. |
|
30.34 |
Amounts received by Obligors |
If any of the Obligors receives or recovers any amount which, under the terms of any of the Finance Documents, should have been paid to the Security Agent,
that Obligor will hold the amount received or recovered on trust for the Security Agent and promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement.
|
30.35 |
Full freedom to enter into transactions |
Without prejudice to Clause 30.7 (Business with the Group) or any
other provision of a Finance Document and notwithstanding any rule of law or equity to the contrary, the Security Agent shall be absolutely entitled:
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance Document
(including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Transaction
Obligor or any person who is party to, or referred to in, a Finance Document); |
|
(b) |
to deal in and enter into and arrange transactions relating to: |
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or |
|
(ii) |
any options or other derivatives in connection with such securities; and |
|
(c) |
to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document, |
and, in particular, the Security Agent shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions
and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain
from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.
|
30.36 |
Majority Lenders' Instructions |
|
(e) |
Notwithstanding anything to the contrary contained in the Transaction Documents, the Parties acknowledge that where any provision in Transaction Document refers to the Security Agent being obliged to or entitled to
take any specified action, exercise any discretion, make any determination, give any consent or waiver, or act in a certain way in connection with the transactions contemplated by the Transaction Documents, it shall or may (as the case may be)
take such specified action, exercise such discretion, make such determination, give any consent in accordance with the instructions or directions of the Facility Agent (acting on the instructions of the Majority Lenders or all Lenders, as the
case may be) and in doing so shall be deemed to have acted reasonably. |
|
(f) |
Any instructions given by the Majority Lenders shall be in writing and be binding on all the Lenders. |
|
(g) |
The Security Agent may refrain from acting in accordance with the instructions of the Facility Agent until it has received such security as it may require for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions. |
|
(h) |
In the absence of instructions from the Facility Agent, the Security Agent shall not be obliged to take any action. |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining the relevant Finance Party's consent) in any
legal or arbitration proceedings relating to any Security Document. Subject to the terms of the Transaction Documents, this paragraph (d) shall not apply to any legal or arbitration proceedings relating to the perfection preservation or protection of
rights under the Security Documents or enforcement of the Transaction Security or any Security Documents.
|
31 |
Conduct of Business by the Finance Parties |
No provision of this Agreement will:
|
(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. |
|
32 |
Sharing among the Finance Parties |
|
32.1 |
Payments to Finance Parties |
If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from a Transaction Obligor other than in accordance with Clause 33 (Payment Mechanics) (a "Recovered Amount") and applies that amount to a payment due to it under the Finance Documents then:
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent; |
|
(b) |
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent
and distributed in accordance with Clause 33 (Payment Mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation
to the receipt, recovery or distribution; and |
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount
which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 33.5 (Application
of receipts; partial payments). |
|
32.2 |
Redistribution of payments |
The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Transaction Obligor and distribute it among the Finance Parties
(other than the Recovering Finance Party) (the "Sharing Finance Parties") in accordance with Clause 33.5 (Application of receipts; partial payments)
towards the obligations of that Transaction Obligor to the Sharing Finance Parties.
|
32.3 |
Recovering Finance Party's rights |
On a distribution by the Facility Agent under Clause 32.2 (Redistribution
of payments) of a payment received by a Recovering Finance Party from a Transaction Obligor, as between the relevant Transaction Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be
treated as not having been paid by that Transaction Obligor.
|
32.4 |
Reversal of redistribution |
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing
Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and |
|
(b) |
as between the relevant Transaction Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Transaction Obligor. |
|
(a) |
This Clause 32 (Sharing among the Finance Parties) shall not apply to the extent that the Recovering Finance Party would not,
after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Transaction Obligor. |
|
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: |
|
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and |
|
(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or
arbitration proceedings. |
Section 11
Administration
|
33.1 |
Payments to the Facility Agent |
|
(a) |
On each date on which a Transaction Obligor or a Lender is required to make a payment under a Finance Document, that Transaction Obligor or Lender shall make an amount equal to such payment available to the Facility
Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in
the place of payment. |
|
(b) |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as
specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies. |
|
33.2 |
Distributions by the Facility Agent |
Each payment received by the Facility Agent under the Finance Documents for another Party shall, subject to Clause 33.3 (Distributions to a Transaction Obligor) and Clause 33.4 (Clawback and pre-funding) be made available by the
Facility Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Facility
Agent by not less than five Business Days' notice with a bank specified by that Party 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 that Party or, in the case of the Loan, to such account of such person as may be specified by the Borrowers in the Utilisation Request.
|
33.3 |
Distributions to a Transaction Obligor |
The Facility Agent may (with the consent of the Transaction Obligor or in accordance with Clause 34 (Set-Off)) apply any amount received by it for that Transaction Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Transaction Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be so applied.
|
33.4 |
Clawback and pre-funding |
|
(a) |
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction that it has actually received that sum. |
|
(b) |
If the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related
exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent
to reflect its cost of funds. |
|
33.5 |
Application of receipts; partial payments |
|
(a) |
If the Facility Agent or the Security Agent (as applicable) receives a payment that is insufficient to discharge all the amounts then due and payable by a Transaction Obligor under the Finance Documents, the Facility
Agent or the Security Agent (as applicable) shall apply that payment towards the obligations of that Transaction Obligor under the Finance Documents in the following order: |
|
(i) |
first, in or towards payment pro rata of any unpaid fees, costs and expenses of, and any other amounts owing to, the Facility Agent, the Security Agent, any Receiver or any Delegate under the Finance
Documents; |
|
(ii) |
secondly, in or towards payment pro rata of any accrued interest and fees due but unpaid to the Lenders under this Agreement; |
|
(iii) |
thirdly, in or towards payment pro rata of any principal due but unpaid to the Lenders under this Agreement; and |
|
(iv) |
fourthly, in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents. |
|
(b) |
The Facility Agent shall, if so directed by the Majority Lenders, vary, or instruct the Security Agent to vary (as applicable) the order set out in sub-paragraphs (ii) to (iv) of paragraph (a) above. |
|
(c) |
Paragraphs (a) and (b) above will override any
appropriation made by a Transaction Obligor. |
|
33.6 |
No set-off by Transaction Obligors |
All payments to be made by a Transaction Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day
(if there is not). |
|
(b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date. |
|
(a) |
Subject to paragraphs (b) and (c) below, dollars
is the currency of account and payment for any sum due from a Transaction Obligor under any Finance Document. |
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. |
|
(c) |
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency. |
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: |
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country
designated by the Facility Agent (acting on the instructions of the Majority Lenders) (after consultation with the Borrowers); and |
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up
or down by the Facility Agent (acting on the instructions of the Majority Lenders). |
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting on the instructions of the Majority Lenders and after consultation with the Borrowers) specifies (acting
on the instructions of the Majority Lenders) to be necessary, be amended to comply with any generally accepted conventions and market practice in the London interbank market and otherwise to reflect the change in currency. |
|
33.10 |
Currency Conversion |
|
(a) |
For the purpose of, or pending any payment to be made by any Servicing Party under any Finance Document, such Servicing Party may convert any moneys received or recovered by it from one currency to another, at a
market rate of exchange available to that Servicing Party in its usual course of business. |
|
(b) |
The obligations of any Transaction Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
|
33.11 |
Disruption to Payment Systems etc. |
If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Borrowers that a
Disruption Event has occurred:
|
(a) |
the Facility Agent may, and shall if requested to do so by the Borrowers, consult with the Borrowers with a view to agreeing with the Borrowers such changes to the operation or administration of the Facility as the
Facility Agent may deem necessary in the circumstances; |
|
(b) |
the Facility Agent shall not be obliged to consult with the Borrowers in relation to any changes mentioned in paragraph (a) above if,
in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; |
|
(c) |
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be
obliged to do so if, in its opinion, it is not practicable to do so in the circumstances; |
|
(d) |
any such changes agreed upon by the Facility Agent and the Borrowers shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties and any Transaction Obligors as an
amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 42 (Amendments and Waivers); |
|
(e) |
the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other
category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 33.11 (Disruption to Payment Systems etc.); and |
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above. |
A Finance Party may set off at any time after an Event of Default has occurred and whilst the same is continuing but without any prior notice any matured
obligation due from a Transaction Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Transaction Obligor, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the parties to a Finance Document, each
Party acknowledges and accepts that any liability of any party to a Finance Document under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the
effect of:
|
(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. |
|
36.1 |
Communications in writing |
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax,
letter or, subject to Clause 36.5 (Electronic communication), by electronic mail.
The address, fax number and electronic mail address (and the department or officer, if any, for whose attention the communication is to be made) of each Party
for any communication or document to be made or delivered under or in connection with the Finance Documents are:
|
(a) |
in the case of the Borrowers, that specified in Schedule 1 (The Parties); |
|
(b) |
in the case of each Lender or any other Obligor, that specified in Schedule 1 (The Parties) or, if it becomes a Party after
the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party; |
|
(c) |
in the case of the Facility Agent, that specified in Schedule 1 (The Parties); and |
|
(d) |
in the case of the Security Agent, that specified in Schedule 1 (The Parties), |
or any substitute address, fax number or department or officer as the Party may notify to the Facility Agent (or the Facility Agent may notify to the other
Parties, if a change is made by the Facility Agent) by not less than five Business Days' notice.
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective: |
|
(i) |
if by way of fax, when received in legible form; |
|
(ii) |
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or |
|
(iii) |
if by way of electronic mail, in accordance with Clause 36.5 (Electronic communication), |
and, if a particular department or officer is specified as part of its address details provided under Clause 36.2 (Addresses), if addressed to that department or officer.
|
(b) |
Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party and then only if it is expressly marked for the attention of the
department or officer of that Servicing Party specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Party shall
specify for this purpose). |
|
(c) |
All notices from or to a Transaction Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document. |
|
(d) |
Any communication or document made or delivered to the Borrowers in accordance with this Clause will be deemed to have been made or delivered to each of the Transaction Obligors. |
|
(e) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day. |
|
36.4 |
Notification of address and fax number |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 36.2 (Addresses) or changing its own address or fax number, the Facility Agent shall notify the other Parties.
|
36.5 |
Electronic communication |
|
(a) |
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a
secure website) if those two Parties: |
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and |
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice. |
|
(b) |
Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be
made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication. |
|
(c) |
Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when
actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Facility Agent or the Security Agent only if it is addressed in such a manner as the Facility Agent or the Security
Agent shall specify for this purpose. |
|
(d) |
Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5.00 p.m. in the place in which
the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day. |
|
(e) |
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 36.5 (Electronic communication). |
|
(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: |
|
(ii) |
if not in English, and if so required by the Facility Agent (acting on the instructions of the Majority Lenders), accompanied by a certified English translation prepared by a translator approved by the Facility Agent
(acting on the instructions of the Majority Lenders) and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
|
37 |
Calculations and Certificates |
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance
Party are prima facie evidence of the matters to which they relate.
|
37.2 |
Certificates and determinations |
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence
of the matters to which it relates.
|
37.3 |
Day count convention |
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days
elapsed and a year of 360 days or, in any case where the practice in the London interbank market differs, in accordance with that market practice.
If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions under the law of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right or remedy under a Finance Document shall operate as a waiver
of any such right or remedy or constitute an election to affirm any Finance Document. No election to affirm any Finance Document on the part of a Secured Party 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. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law.
|
40 |
Settlement or Discharge Conditional |
Any settlement or discharge under any Finance Document between any Finance Party and any Transaction Obligor shall be conditional upon no security or payment
to any Finance Party by any Transaction Obligor or any other person being set aside, adjusted or ordered to be repaid, whether under any insolvency law or otherwise.
If the Facility Agent considers that an amount paid or discharged by, or on behalf of, a Transaction Obligor or by any other person in purported payment or
discharge of an obligation of that Transaction Obligor to a Secured Party under the Finance Documents is capable of being avoided or otherwise set aside on the liquidation or administration of that Transaction Obligor or otherwise, then that amount
shall not be considered to have been unconditionally and irrevocably paid or discharged for the purposes of the Finance Documents.
|
42 |
Amendments and Waivers |
|
(a) |
Subject to Clause 42.2 (All Lender matters) and Clause 42.3 (Other exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and, in the case of an amendment, the Obligors and any such amendment or waiver will be
binding on all Parties. |
|
(b) |
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 42 (Amendments and
Waivers). |
|
(c) |
Without prejudice to the generality of Clause 29.7 (Rights and discretions), the Facility Agent may at the Borrowers' cost
engage and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement. |
|
(d) |
Paragraph (c) of Clause 27.9 (Pro rata interest
settlement) shall apply to this Clause 42 (Amendments and Waivers). |
An amendment of or waiver or consent in relation to any term of any Finance Document that has the effect of changing or which relates to:
|
(a) |
the definition of "Majority Lenders" in Clause 1.1 (Definitions); |
|
(b) |
a postponement to or extension of the date of payment of any amount under the Finance Documents; |
|
(c) |
a reduction in the Interest Rate or the amount of any payment of principal, interest, fees or commission payable; |
|
(d) |
a change in currency of payment of any amount under the Finance Documents; |
|
(e) |
an increase in any Commitment or the Total Commitments, an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the Commitments rateably under the Facility; |
|
(f) |
a change to any Transaction Obligor other than in accordance with Clause 28 (Changes to the Transaction Obligors); |
|
(g) |
any provision which expressly requires the consent of all the Lenders; |
|
(h) |
this Clause 42 (Amendments and Waivers); |
|
(i) |
any change to the preamble (Background), Clause 2 (The Facility), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 7.4 (Mandatory prepayment on sale or Total Loss), Clause 8 (Interest), Clause 23.9 (Compliance with laws, etc.) 23.11 (Sanctions and Ship trading), Clause 25 (Earnings Account and Application of Earnings), Clause 27 (Changes to the Lenders), Clause 32 (Sharing among the Finance Parties), Clause 45 (Governing Law) or
Clause 46 (Enforcement); |
|
(j) |
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document (except in the case of a release of Transaction Security as it
relates to the disposal of an asset which is the subject of the Transaction Security and where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document); |
|
(k) |
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of: |
|
(i) |
the guarantee and indemnity granted under Clause 16 (Guarantee and Indemnity); |
|
(ii) |
the Security Assets; or |
|
(iii) |
the manner in which the proceeds of enforcement of the Transaction Security are distributed, |
(except in the case of sub-paragraphs (ii) and (iii) above, insofar as it relates to a sale or disposal of an asset which is the subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or
any other Finance Document);
|
(l) |
the release of the guarantee and indemnity granted under Clause 16 (Guarantee and Indemnity) or of any Transaction Security
unless permitted under this Agreement or any other Finance Document or relating to a sale or disposal of an asset which is the subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any
other Finance Document, |
shall not be made, or given, without the prior consent of all the Lenders.
|
(a) |
An amendment or waiver which relates to the rights or obligations of a Servicing Party (in its capacity as such) may not be effected without the consent of that Servicing Party. |
|
(b) |
The Borrowers and the Facility Agent or the Borrowers and the Security Agent, as applicable, may amend in writing or waive a term of a Fee Letter to which they are party. |
Without prejudice to the generality of Clauses 1.2 (Construction)
and 16.4 (Waiver of defences), each Obligor expressly confirms that it intends that any guarantee contained in this Agreement or any other Finance Document and
any Security created by any Finance Document shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the
Finance Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities;
refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses
associated with any of the foregoing.
|
43 |
Confidential Information |
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 43.2 (Disclosure of Confidential Information), Clause 43.4 (Disclosure to
numbering service providers) and unless otherwise required by law, court order, regulatory authority or stock exchange rules, requirements and regulations and to ensure that all Confidential Information is protected with security measures and a
degree of care that would apply to its own confidential information.
|
43.2 |
Disclosure of Confidential Information |
Any Finance Party may disclose:
|
(a) |
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, legal counsels, insurers, insurance advisors, insurance brokers, 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; |
|
(i) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially
succeed) it as Facility Agent or Security Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers; |
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made
by reference to, one or more Finance Documents and/or one or more Transaction Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers; |
|
(iii) |
appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to receive communications, notices, information or documents delivered pursuant to the Finance
Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 29.14 (Relationship with the other Finance Parties)); |
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b) above; |
|
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant
stock exchange or pursuant to any applicable law or regulation; |
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes; |
|
(vii) |
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 27.8
(Security over Lenders' rights); |
|
(viii) |
who is a Party, a Transaction Obligor or any related entity of a Transaction Obligor; |
|
(ix) |
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document; or |
|
(x) |
with the consent of the Borrowers; |
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
|
(A) |
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the Confidential Information is to
be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the
confidentiality of the Confidential Information; |
|
(B) |
in relation to sub-paragraph (iv) of paragraph (b)
above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed
that some or all of such Confidential Information may be price-sensitive information; |
|
(C) |
in relation to sub-paragraphs (v), (vi) and (vii) of paragraph (b) above, the person to whom the Confidential Information is to
be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not
practicable so to do in the circumstances; |
|
(c) |
to any person appointed by that Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to provide administration or settlement services in respect of one or more of the
Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of
the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality
agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrowers and the relevant Finance
Party; and |
|
(d) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the
Finance Documents and/or the Transaction Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive
information. |
Nothing in any Finance Document shall prevent disclosure of any Confidential Information or other matter to the extent that preventing that disclosure would
otherwise cause any transaction contemplated by the Finance Documents or any transaction carried out in connection with any transaction contemplated by the Finance Documents to become an arrangement described in Part II A 1 of Annex IV of Directive
2011/16/EU.
|
43.4 |
Disclosure to numbering service providers |
|
(a) |
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility
and/or one or more Transaction Obligors the following information: |
|
(i) |
names of Transaction Obligors; |
|
(ii) |
country of domicile of Transaction Obligors; |
|
(iii) |
place of incorporation of Transaction Obligors; |
|
(iv) |
date of this Agreement; |
|
(v) |
Clause 45 (Governing Law); |
|
(vi) |
the name of the Facility Agent; |
|
(vii) |
date of each amendment and restatement of this Agreement; |
|
(viii) |
amount of Total Commitments; |
|
(ix) |
currency of the Facility; |
|
(xi) |
ranking of Facility; |
|
(xii) |
Termination Date for Facility; |
|
(xiii) |
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xii) above; and |
|
(xiv) |
such other information agreed between such Finance Party and the Borrowers, |
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Transaction Obligors by a numbering service provider and the information associated with
each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider. |
|
(c) |
Each Obligor represents, on behalf of itself and the other Transaction Obligors, that none of the information set out in sub-paragraphs (i)
to (xiv) of paragraph (a) above is, nor will at any time be, unpublished
price-sensitive information. |
This Clause 43 (Confidential Information) constitutes the entire
agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such
information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
|
43.7 |
Notification of disclosure |
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrowers:
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 43.2 (Disclosure of Confidential Information) except where such
disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and |
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 43 (Confidential Information). |
|
43.8 |
Continuing obligations |
The obligations in this Clause 43 (Confidential Information) are
continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and |
|
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party. |
Each Finance Document 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 the Finance Document.
Section 12
Governing Law and Enforcement
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
(a) |
Unless specifically provided in another Finance Document in relation to that Finance Document, the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with any Finance
Document (including a dispute regarding the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a "Dispute"). |
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary. |
|
(c) |
This Clause 46.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be
prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions. |
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales): |
|
(i) |
irrevocably appoints Messrs E. J. C. Album Solicitors, presently of Landmark House, 190 Willifield Way, London NW11 6YA, England (attention: Mr Edward Album, tel: +44 208 455 7653, fax: +44 208 457 5558 and email: ejca@mitgr.com)
as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and |
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned. |
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, each Borrower (on behalf of all the Obligors) must immediately (and in any event within 5
days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose. |
Each of the Facility Agent and the Lenders hereby notifies the Borrowers that pursuant to the requirements of the PATRIOT Act and the policies and practices
of the Facility Agent and each Lender, the Facility Agent and each of the Lenders is required to obtain, verify and record certain information and documentation that identifies each Transaction Obligor, which information includes the name and address
of each Transaction Obligor and such other information that will allow the Facility Agent and each of the Lenders to identify each Transaction Obligor in accordance with the PATRIOT Act.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Schedule 1
The Parties
Part A
The Obligors
Name of Borrower
|
Place of
Incorporation |
Registration number
(or equivalent, if any)
|
Address for
Communication |
|
|
|
|
Sea Glorius Shipping Co. |
The Republic of the Marshall Islands |
71734 |
154 Vouliagmenis
Avenue, 166 74 Glyfada,
Athens Greece
Tel: +302130181507
Email: legal@seanergy.gr
Fax: +302109638404
|
Sea Genius Shipping Co. |
The Republic of the Marshall Islands |
71733 |
154 Vouliagmenis
Avenue, 166 74 Glyfada,
Athens Greece
Tel: +302130181507
Email: legal@seanergy.gr
Fax: +302109638404
|
Name of Guarantor |
Place of Incorporation |
Registration number
(or equivalent, if any)
|
Address for
Communication |
|
|
|
|
Seanergy Maritime Holdings Corp. |
The Republic of the Marshall Islands |
27721 |
154 Vouliagmenis
Avenue, 166 74 Glyfada,
Athens Greece
Tel: +302130181507
Email: legal@seanergy.gr
Fax: +302109638404
|
Part B
The Original Lenders
Name of Original Lender |
Commitment |
Address for Communication |
|
|
|
Blue Ocean Onshore Fund LP |
$10,511,012.27 |
Blue Ocean Onshore Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein
/ Matthew Lux
|
Blue Ocean 1839 Fund LP |
$4,692,965.08 |
Blue Ocean 1839 Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein
/ Matthew Lux
|
Blue Ocean Income Fund LP |
$2,604,465.39 |
Blue Ocean Income Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein
/ Matthew Lux
|
EnTrust Global ICAV, for and on behalf of Blue Ocean Fund |
$1,803,181.67 |
EnTrust Global ICAV
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein
/ Matthew Lux
|
Blue Ocean Offshore Master Fund I LLC |
$542,010.37 |
Blue Ocean Offshore Master Fund I LLC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein
/ Matthew Lux
|
Blue Ocean IDF Series of the SALI Multi-Series Fund, L.P. |
$2,346,365.22 |
Blue Ocean IDF Series of the SALI Multi-Series Fund, L.P.
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Facsimile: +1 212 888 0751
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein
/ Matthew Lux
|
Part C
The Servicing Parties
Name of Facility Agent |
Address for Communication |
|
|
Lucid Agency Services Limited |
6th Floor, No 1 Building 1-5 London Wall Buildings, London Wall,
London, United Kingdom, EC2M 5PG
Fax: + 44 2030024691
Attention: Lucid Agency and Trustee Services Limited (deals@lucid-ats.com)
|
|
|
Name of Security Agent |
Address for Communication |
|
|
Lucid Trustee Services Limited |
6th Floor, No 1 Building 1-5 London Wall Buildings, London Wall,
London, United Kingdom, EC2M 5PG
Fax: + 44 2030024691
Attention: Lucid Agency and Trustee Services Limited (deals@lucid-ats.com)
|
Schedule 2
Conditions Precedent
Part A
Conditions precedent to Utilisation Request
|
1.1 |
A copy of the constitutional documents of each Transaction Obligor. |
|
1.2 |
A copy of a resolution of the board of directors of each Transaction Obligor: |
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party; |
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and |
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request) to be signed and/or despatched by it under, or in
connection with, the Finance Documents to which it is a party. |
|
1.3 |
An original of the power of attorney of any Transaction Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party. |
|
1.4 |
A specimen of the signature of each person authorised by the resolution referred to in paragraph 1.2 above. |
|
1.5 |
A copy of a resolution signed by the Guarantor as the holder of all the issued shares in each Borrower, approving the terms of, and the transactions contemplated by, the Finance Documents to which that Borrower is a
party. |
|
1.6 |
A certificate of each Transaction Obligor (signed by an officer) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding
on that Transaction Obligor to be exceeded. |
|
1.7 |
A certificate of each Transaction Obligor that is incorporated outside the UK (signed by an officer) certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of Companies
as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies. |
|
1.8 |
A certificate of an officer of the relevant Transaction Obligor certifying that each copy document relating to it specified in this Part
A of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
|
2.1 |
A duly executed original of this Agreement. |
|
2.2 |
A duly executed original of the Fee Letter. |
|
2.3 |
A duly executed original of the Intercreditor Agreement. |
|
3.1 |
A duly executed original of any Subordinated Debt Security. |
|
4.1 |
A legal opinion of Watson Farley & Williams, legal advisers to the Facility Agent and the Security Agent in England, substantially in the form distributed to the Original Lenders before signing this Agreement. |
|
4.2 |
If a Transaction Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Facility Agent and the Security Agent in the relevant jurisdiction, substantially
in the form distributed to the Original Lenders before signing this Agreement. |
|
5 |
Other documents and evidence |
|
5.1 |
Evidence that any process agent referred to in Clause 46.2 (Service of process) has accepted its appointment. |
|
5.2 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrowers accordingly) in connection with the entry
into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document. |
|
5.3 |
Evidence that the Earnings Account has been opened with the Account Bank. |
|
5.4 |
The Original Financial Statements. |
|
5.5 |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 10 (Fees) and Clause 15 (Costs and Expenses) have been paid or will be paid by the Utilisation Date. |
|
5.6 |
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions contemplated by
the Finance Documents. |
Part B
Conditions precedent to Utilisation
A certificate of an authorised signatory of each Borrower certifying that each copy document which it is required to provide under this Part B of Schedule 2 (Conditions Precedent) is correct, complete and in full force
and effect as at the Utilisation Date.
|
2 |
Release of Existing Security |
An original of the Deed of Release and of each document to be delivered under or pursuant to it, together with evidence satisfactory to the Facility Agent
(acting on the instructions of the Majority Lenders) of its due execution by the parties to it.
|
3.1 |
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (Conditions Precedent). |
|
3.2 |
A duly executed original of any other document required to be delivered by each Finance Document if not otherwise referred to this Schedule
2 (Conditions Precedent). |
|
4 |
Ship and other security |
|
4.1 |
A duly executed original of the Account Security, each Shares Security, each Mortgage, each General Assignment and any Charter Assignment and of each document to be delivered under or pursuant to each of them
together with documentary evidence that the each Mortgage has been duly registered or recorded (as applicable) as a valid first preferred or priority (as applicable) ship mortgage in accordance with the laws of the jurisdiction of the Approved
Flag of the relevant Ship. |
|
4.2 |
Documentary evidence that each Ship: |
|
(a) |
is definitively and permanently registered in the name of the relevant Borrower under the relevant Approved Flag; |
|
(b) |
is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents; |
|
(c) |
maintains the Approved Classification with the relevant Approved Classification Society free of all overdue recommendations and conditions of the relevant Approved Classification Society; and |
|
(d) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with. |
|
4.3 |
Documents establishing that each Ship will, as from the Utilisation Date, be managed commercially by the Approved Commercial Manager and managed technically by the Approved Technical Manager on terms acceptable to
the Facility Agent acting with the authorisation of all of the Lenders, together with: |
|
(a) |
a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager; and |
|
(b) |
copies of the Approved Technical Manager's Document of Compliance and of that Ship's Safety Management Certificate (together with any other details of the applicable Safety Management System which the Facility Agent
requires (acting on the instructions of the Majority Lenders)) and of any other documents required under the ISM Code and the ISPS Code in relation to that Ship including without limitation an ISSC. |
|
4.4 |
An opinion from an independent insurance consultant acceptable to the Facility Agent (acting on the instructions of the Majority Lenders) on such matters relating to the Insurances as the Facility Agent may require
(acting on the instructions of the Majority Lenders). |
|
4.5 |
A valuation of each Ship stated to be for the purposes of this Agreement and dated not earlier than 30 days prior to the Utilisation Date as the Lenders will approve from an Approved Valuer. |
|
5 |
Collateral Ship and other security |
|
5.1 |
A duly executed original of the Collateral Account Security, the Collateral Guarantee, the Collateral Mortgage, the Collateral Shares Security and the Collateral General Assignment and of each document to be
delivered under or pursuant to each of them together with documentary evidence that the Collateral Mortgage has been duly registered or, as the case may be, recorded as a valid second priority ship mortgage in accordance with the laws of the
jurisdiction of the relevant Approved Flag. |
|
5.2 |
Documentary evidence that the Collateral Ship: |
|
(a) |
is definitively and permanently registered in the name of the Collateral Guarantor under the relevant Approved Flag; |
|
(b) |
is in the absolute and unencumbered ownership of the Collateral Guarantor save as contemplated by the Finance Documents; |
|
(c) |
maintains the relevant Approved Classification with the relevant Approved Classification Society free of all overdue recommendations and conditions of the relevant Approved Classification Society; and |
|
(d) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with. |
|
5.3 |
Documents establishing that the Collateral Ship is managed commercially by the Approved Commercial Manager and managed technically by the Approved Technical Manager on terms acceptable to the Facility Agent acting
with the authorisation of all of the Lenders, together with: |
|
(a) |
a Collateral Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager; and |
|
(b) |
copies of the Approved Technical Manager's Document of Compliance and of the Ship's Safety Management Certificate (together with any other details of the applicable Safety Management System which the Facility Agent
requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Collateral Ship including without limitation an ISSC. |
Legal opinions of the legal advisers to the Facility Agent and the Security Agent in the jurisdiction of the Approved Flag of each Ship and the Collateral
Ship, the Republic of Liberia, the Republic of the Marshall Islands and such other relevant jurisdictions as the Facility Agent may require.
|
7 |
Other documents and evidence |
|
7.1 |
Evidence that the Minimum Liquidity Amount is standing, or will be standing immediately after the Utilisation Date, to the credit of the relevant Earnings Account. |
|
7.2 |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 10 (Fees) and Clause 15 (Costs and Expenses) have been paid or will be paid by the Utilisation Date. |
|
7.3 |
Evidence satisfactory to the Facility Agent that the conditions precedent pursuant to Clause 4 (conditions precedent) of the Collateral Facility Amendment and Restatement Deed have been satisfied. |
Schedule 3
Requests
Utilisation Request
From: Sea Glorius Shipping Co.
Sea Genius Shipping Co.
To: Lucid Agency Services Limited
Dated: [●] 2020
Dear Sirs
Sea Glorius Shipping Co. and Sea Genius Shipping Co. – $22,500,000 Facility Agreement dated [●] 2020 (the "Agreement")
1 |
We refer to the Agreement. This is the Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request. |
2 |
We wish to borrow the Loan on the following terms: |
|
Proposed Utilisation Date: |
[●] 2020 (or, if that is not a Business Day, the next Business Day) |
|
|
|
|
Amount: |
[$22,500,000] or, if less, the Available Facility as follows: |
|
|
|
|
Tranche A |
[$6,500,000] |
|
Tranche B |
[$16,000,000] |
3 |
[You are authorised and requested to deduct from the Loan prior to funds being remitted the following amounts set out against the following items: |
|
Fees payable on the Utilisation date pursuant to Clause 10 (Fees) |
$[●] |
|
|
|
|
Net proceeds of Loan |
$[[●]]] |
4 |
[We request that funds are prepositioned with [include details of relevant bank] in accordance with Clause 5.8 (Prepositioning of
Funds).] |
5 |
We hereby agree and acknowledge that the Facility Agent shall make payments strictly on the basis of the information set forth in this Utilisation Request hereto even if such information is incorrect. In
the event that any of such information is incorrect, we agree that the Facility Agent shall not have any liability with respect thereto. |
6 |
We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) of the Agreement as they relate to the Loan
is satisfied on the date of this Utilisation Request. |
7 |
The net proceeds of the Loan should be credited to [account details of Existing Facility Agent]. |
8 |
This Utilisation Request is irrevocable. |
Yours faithfully
____________________
[●]
authorised signatory for
SEA GLORIUS SHIPPING CO.
____________________
[●]
authorised signatory for
SEA GENIUS SHIPPING CO.
Schedule 4
Form of Transfer Certificate
To: Lucid Agency Services Limited as Facility Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
Dated: [●]
Dear Sirs
Sea Glorius Shipping Co. and Sea Genius Shipping Co. – $22,500,000 Facility Agreement dated [●] 2020 (the "Agreement")
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate. |
|
2 |
We refer to Clause 27.5 (Procedure for transfer) of the Agreement: |
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents
which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 27.5
(Procedure for transfer) of the Agreement. |
|
(b) |
The proposed Transfer Date is [●]. |
|
(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 36.2 (Addresses)
of the Agreement are set out in the Schedule. |
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 27.4 (Limitation of responsibility of Existing Lenders) of the Agreement. |
|
4 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate. |
|
5 |
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law. |
|
6 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate. |
Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in all
jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so,
to arrange for execution of those documents and completion of those formalities.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details
for notices and account details for payments.]
[Existing Lender] |
[New Lender] |
|
|
By: [●] |
By: [●] |
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [●].
[Facility Agent]
By: [●]
Schedule 5
Form of Assignment Agreement
|
To: |
Lucid Agency Services Limited as Facility Agent and Sea Glorius Shipping Co. and Sea Genius Shipping Co. as joint and several Borrowers, for and on behalf of each Transaction Obligor |
|
From: |
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender") |
Dated: [●]
Dear Sirs
Sea Glorius Shipping Co. and Sea Genius Shipping Co. – $22,500,000 Facility Agreement dated [●] 2020 (the "Agreement")
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement. |
|
2 |
We refer to Clause 27.6 (Procedure for assignment): |
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that
portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule. |
|
(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in
the Schedule. |
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above. |
|
(d) |
All rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the Existing
Lender's title and of any rights or equities which the Borrowers or any other Transaction Obligor had against the Existing Lender. |
|
3 |
The proposed Transfer Date is [●]. |
|
4 |
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender. |
|
5 |
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 36.2 (Addresses)
are set out in the Schedule. |
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 27.4 (Limitation of responsibility of Existing Lenders). |
|
7 |
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 27.7
(Copy of Transfer Certificate or Assignment Agreement to Borrower), to the Borrowers (on behalf of each Transaction Obligor) of the assignment referred to in this Assignment Agreement. |
|
8 |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement. |
|
9 |
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
|
10 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement. |
Note: The execution of this Assignment Agreement may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in all
jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so,
to arrange for execution of those documents and completion of those formalities.
THE SCHEDULE
Commitment rights and obligations to be transferred by assignment, release and accession
[insert relevant details]
[Facility office address, fax number and attention details for notices
and account details for payments]
[Existing Lender] |
[New Lender] |
|
|
By: [●] |
By: [●] |
This Assignment Agreement is accepted by the Facility Agent and the Transfer Date is confirmed as [●].
Signature of this Assignment Agreement by the Facility Agent constitutes confirmation by the Facility Agent of receipt of notice of the assignment referred to herein,
which notice the Facility Agent receives on behalf of each Finance Party.
[Facility Agent]
By:
Schedule 6
Repayment Schedule
Repayment
Instalment
|
Opening Balance ($) |
Amortizing ($) |
Loan Closing
Balance ($)
|
Tranche A |
Tranche B |
Tranche A |
Tranche B |
|
|
|
|
22,500,000 |
1 |
6,500,000 |
16,000,000 |
200,000 |
276,500 |
22,023,500 |
2 |
6,300,000 |
15,723,500 |
200,000 |
276,500 |
21,547,000 |
3 |
6,100,000 |
15,447,000 |
200,000 |
276,500 |
21,070,500 |
4 |
5,900,000 |
15,170,500 |
200,000 |
276,500 |
20,594,000 |
5 |
5,700,000 |
14,894,000 |
200,000 |
276,500 |
20,117,500 |
6 |
5,500,000 |
14,617,500 |
200,000 |
276,500 |
19,641,000 |
7 |
5,300,000 |
14,341,000 |
350,000 |
515,000 |
18,776,000 |
8 |
4,950,000 |
13,826,000 |
350,000 |
515,000 |
17,911,000 |
9 |
4,600,000 |
13,311,000 |
350,000 |
515,000 |
17,046,000 |
10 |
4,250,000 |
12,796,000 |
350,000 |
515,000 |
16,181,000 |
11 |
3,900,000 |
12,281,000 |
350,000 |
515,000 |
15,316,000 |
12 |
3,550,000 |
11,766,000 |
350,000 |
515,000 |
14,451,000 |
13 |
3,200,000 |
11,251,000 |
350,000 |
515,000 |
13,586,000 |
14 |
2,850,000 |
10,736,000 |
350,000 |
515,000 |
12,721,000 |
15 |
2,500,000 |
10,221,000 |
350,000 |
515,000 |
11,856,000 |
16 |
2,150,000 |
9,706,000 |
350,000 |
515,000 |
10,991,000 |
17 |
1,800,000 |
9,191,000 |
350,000 |
515,000 |
10,126,000 |
18 |
1,450,000 |
8,676,000 |
350,000 |
515,000 |
9,261,000 |
19 |
1,100,000 |
8,161,000 |
350,000 |
515,000 |
8,396,000 |
20 |
750,000 |
7,646,000 |
350,000 |
515,000 |
7,531,000 |
Totals |
|
6,100,000 |
8,869,000 |
|
Balloon |
|
400,000 |
7,131,000 |
|
Schedule 7
Details of the Ships
Ship name
|
Name
of the
Borrower
owner
|
IMO No. |
Type |
DWT |
Approved Flag |
Approved
Classification
Society
|
Approved Classification |
"GLORIUSHIP" |
Sea Glorius Shipping Co. |
9266944 |
Bulk carrier |
171,300 |
Marshall Islands |
American Bureau of Shipping |
A1, Bulk Carrier, BC-A holds, 2, 4, 6&8 may be empty, ESP, AMS, ACCU |
|
|
|
|
|
|
|
|
"GENIUSHIP" |
Sea Genius Shipping Co. |
9398759 |
Bulk carrier |
170,100 |
Marshall Islands |
American Bureau of Shipping |
A1, Bulk Carrier, BC-A holds, 2, 4, 6, 8 may be empty, (no MP), ESP, AMS, ACCU |
Schedule 8
Timetables
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) |
|
Ten Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of a Utilisation Request)) |
|
|
|
Facility Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders' participation) |
|
One Business Day before the intended Utilisation Date. |
Schedule 9
Form of Compliance Certificate
To: |
LUCID AGENCY SERVICES LIMITED as Facility Agent |
|
|
From: |
SEANERGY MARITIME HOLDINGS CORP. as Guarantor |
Dated: [●]
Dear Sirs
Sea Glorius Shipping Co. and Sea Genius Shipping Co. – $22,500,000 Facility Agreement dated [●] 2020 (the "Agreement")
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a
different meaning in this Compliance Certificate.
The undersigned hereby certifies as follows:
|
1 |
I am an officer of the Guarantor. |
|
(a) |
the aggregate Market Value of the Ships; plus |
|
(b) |
[the aggregate credit balances held on the Earnings Accounts; plus] |
|
(c) |
the net realisable value of additional Security previously provided under clause 24 (security cover) of the Agreement, |
is [●] which is [above][below] the Relevant Percentage of the Loan.
|
(d) |
the account balance standing to the credit of the Earnings Accounts on [●] is $[●], which is [not] in compliance with clause 19.1 (borrowers' minimum liquidity) of the Agreement; |
The foregoing certifications in the valuations delivered with this Certificate in support hereof, are made and delivered on [date] pursuant to clause 24.7 (provision
of valuations) of the Agreement together with the account statements dated [●] in respect of the Earnings Accounts.
____________________
[●]
as: President
SEANERGY MARITIME HOLDINGS CORP.
Execution Pages
BORROWERS
SIGNED by Stamatios Tsantanis |
) |
/s/ Stamatios Tsantanis |
duly authorised |
) |
|
for and on behalf of |
) |
|
SEA GLORIUS SHIPPING CO. |
) |
|
its: attorney-in-fact |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Moschopoulou |
Witness' name: Maria Moschopoulou |
) |
|
Witness' address: |
) |
|
154 Vouliagmenis Avenue |
|
16674 Glyfada, Athens Greece |
|
SIGNED by Stamatios Tsantanis |
) |
/s/ Stamatios Tsantanis |
duly authorised |
) |
|
for and on behalf of |
) |
|
SEA GENIUS SHIPPING CO. |
) |
|
its: attorney-in-fact |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Moschopoulou |
Witness' name: Maria Moschopoulou |
) |
|
Witness' address: |
) |
|
154 Vouliagmenis Avenue |
|
16674 Glyfada, Athens Greece |
|
GUARANTOR
SIGNED by Stamatios Tsantanis |
) |
/s/ Stamatios Tsantanis |
duly authorised |
) |
|
for and on behalf of |
) |
|
SEANERGY MARITIME HOLDINGS CORP. |
) |
|
its: attorney-in-fact |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Moschopoulou |
Witness' name: Maria Moschopoulou |
) |
|
Witness' address: |
) |
|
154 Vouliagmenis Avenue |
|
16674 Glyfada, Athens Greece |
|
ORIGINAL LENDERS
SIGNED by Konstantinos Mexias |
) |
/s/ Konstantinos Mexias |
duly authorised |
) |
|
for and on behalf of |
) |
|
BLUE OCEAN ONSHORE FUND LP |
) |
|
By: Blue Ocean GP LLC |
) |
|
as its General Partner |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Eleni Kossyfa |
Witness' name: Maria Eleni Kossyfa |
) |
|
Witness' address: |
) |
|
WATSON FARLEY WILLIAMS |
|
345 SYNGROU AVENUE |
|
KALLITHEA 176 74 |
|
ATHENS-GREECE |
|
SIGNED by Konstantinos Mexias |
) |
/s/ Konstantinos Mexias |
duly authorised |
) |
|
for and on behalf of |
) |
|
BLUE OCEAN 1839 FUND LP |
) |
|
By: Blue Ocean GP LLC |
) |
|
as its General Partner |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Eleni Kossyfa |
Witness' name: Maria Eleni Kossyfa |
) |
|
Witness' address: |
) |
|
WATSON FARLEY WILLIAMS |
|
345 SYNGROU AVENUE |
|
KALLITHEA 176 74 |
|
ATHENS-GREECE |
|
SIGNED by Konstantinos Mexias |
) |
/s/ Konstantinos Mexias |
duly authorised |
) |
|
for and on behalf of |
) |
|
BLUE OCEAN INCOME FUND LP |
) |
|
By: Blue Ocean GP LLC |
) |
|
as its General Partner |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Eleni Kossyfa |
Witness' name: Maria Eleni Kossyfa |
) |
|
Witness' address: |
) |
|
WATSON FARLEY WILLIAMS |
|
345 SYNGROU AVENUE |
|
KALLITHEA 176 74 |
|
ATHENS-GREECE |
|
SIGNED by Konstantinos Mexias |
) |
/s/ Konstantinos Mexias |
duly authorised |
) |
|
for and on behalf of |
) |
|
ENTRUST GLOBAL ICAV |
) |
|
for and on behalf of |
) |
|
BLUE OCEAN FUND |
) |
|
By: EnTrust Global Partners Offshore LP |
) |
|
as its Investment Advisor |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Eleni Kossyfa |
Witness' name: Maria Eleni Kossyfa |
) |
|
Witness' address: |
) |
|
WATSON FARLEY WILLIAMS |
|
345 SYNGROU AVENUE |
|
KALLITHEA 176 74 |
|
ATHENS-GREECE |
|
SIGNED by Konstantinos Mexias |
) |
/s/ Konstantinos Mexias |
duly authorised |
) |
|
for and on behalf of |
) |
|
BLUE OCEAN OFFSHORE MASTER |
) |
|
FUND I LLC |
) |
|
By: EnTrust Global Partners Offshore LP |
) |
|
as its Investment Advisor |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Eleni Kossyfa |
Witness' name: Maria Eleni Kossyfa |
) |
|
Witness' address: |
) |
|
WATSON FARLEY WILLIAMS |
|
345 SYNGROU AVENUE |
|
KALLITHEA 176 74 |
|
ATHENS-GREECE |
|
SIGNED by Konstantinos Mexias |
) |
/s/ Konstantinos Mexias |
duly authorised |
) |
|
for and on behalf of |
) |
|
BLUE OCEAN IDF SERIES OF THE SALI |
) |
|
MULTI-SERIES FUND, L.P. |
|
|
By: EnTrust Global Partners Offshore LP |
) |
|
as its Investment Subadvisor |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Maria Eleni Kossyfa |
Witness' name: Maria Eleni Kossyfa |
) |
|
Witness' address: |
) |
|
WATSON FARLEY WILLIAMS |
|
345 SYNGROU AVENUE |
|
KALLITHEA 176 74 |
|
ATHENS-GREECE |
|
FACILITY AGENT
SIGNED by Andrew Brookes |
) |
/s/ Andrew Brookes |
duly authorised |
) |
Authorized Signatory |
for and on behalf of |
) |
|
LUCID AGENCY SERVICES LIMITED |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Marsha Brookes |
Witness' name: Marsha Brookes |
) |
|
Witness' address: Billericay, Essex |
) |
|
SECURITY AGENT
SIGNED by Andrew Brookes |
) |
/s/ Andrew Brookes |
duly authorised |
) |
Authorized Signatory |
for and on behalf of |
) |
|
LUCID TRUSTEE SERVICES LIMITED |
) |
|
in the presence of: |
) |
|
|
|
|
Witness' signature: |
) |
/s/ Marsha Brookes |
Witness' name: Marsha Brookes |
) |
|
Witness' address: Billericay, Essex |
) |
|