☐
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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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☐
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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☐
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Title of class
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Trading Symbol(s)
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Name of exchange on which
registered
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Shares of common stock, par value $0.0001, including the Preferred Stock Purchase Rights
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USEA
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The Nasdaq Stock Market LLC
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Emerging growth company ☒
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U.S. GAAP ☒
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International Financial Reporting Standards as issued by the International Accounting Standards Board ☐
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Other ☐
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☐ Item 17
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☐ Item 18
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a ☐ Yes
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☒ No
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Page
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3 |
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ITEM 1.
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3 |
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ITEM 2.
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3 |
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ITEM 3.
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3 |
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ITEM 4.
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36 | |
ITEM 4A.
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53
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ITEM 5.
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53
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ITEM 6.
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66 | |
ITEM 7.
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70 | |
ITEM 8.
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72 | |
ITEM 9.
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72 | |
ITEM 10.
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72
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ITEM 11.
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81
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ITEM 12.
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81 | |
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81
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ITEM 13.
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81
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ITEM 14.
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81
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ITEM 15.
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81
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ITEM 16
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[RESERVED] |
82 |
ITEM 16A.
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82 | |
ITEM 16B.
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82 |
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ITEM 16C.
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82 | |
ITEM 16D.
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82
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ITEM 16E.
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82 | |
ITEM 16F.
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83 | |
ITEM 16G.
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83 | |
ITEM 16H.
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83 | |
ITEM 16I.
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83 | |
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84
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ITEM 17.
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84 | |
ITEM 18.
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84
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ITEM 19.
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84 |
• |
changes in shipping industry trends, including charter rates, vessel values and factors affecting vessel supply and demand;
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changes in seaborne and other transportation patterns;
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changes in worldwide oil production and consumption and storage;
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changes in the supply of or demand for dry bulk commodities, including dry bulk commodities carried by sea, generally or in particular regions;
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•
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fluctuations in the supply and demand of crude oil and petroleum products and changes in the patterns of trade;
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changes in the number of newbuildings under construction in the dry bulk or tanker shipping industry;
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changes in the useful lives and the value of our vessels and other vessels we may acquire and the related impact on our compliance with loan covenants;
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the aging of our fleet and increases in operating costs;
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changes in our ability to complete future, pending or recent acquisitions or dispositions;
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our ability to achieve successful utilization of our expanded fleet;
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changes to our financial condition and liquidity, including our ability to pay amounts that we owe and obtain additional financing to fund capital expenditures, acquisitions and other general corporate
activities;
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risks related to our business strategy, areas of possible expansion or expected capital spending or operating expenses;
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our dependence on Seanergy Maritime Holdings Corp. and our third-party managers to operate our business;
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changes in the availability of crew, number of off-hire days, classification survey requirements and insurance costs for our vessels and other vessels we may acquire;
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changes in our relationships with our contract counterparties, including the failure of any of our contract counterparties to comply with their agreements with us;
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loss of our customers, charters or vessels and other vessels we may acquire;
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damage to our vessels and other vessels we may acquire;
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potential liability from future litigation and incidents involving our vessels and other vessels we may acquire;
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our future operating or financial results;
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acts of terrorism and other hostilities, pandemics or other calamities (including, without limitation, the worldwide novel coronavirus, or COVID-19, outbreak);
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risks associated with the COVID-19 pandemic, including its effects on demand for dry bulk products, petroleum and other types of products, crew changes and the transportation thereof;
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changes in global and regional economic and political conditions, including conditions in the oil industry;
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general domestic and international political conditions or events, including “trade wars” and the ongoing war between Russia and Ukraine and related sanctions;
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changes in governmental rules and regulations or actions taken by regulatory authorities, particularly with respect to the marine transportation industry; and
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other factors discussed in “Item 3. Key Information—D. Risk Factors.”
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ITEM 1. |
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
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ITEM 2. |
OFFER STATISTICS AND EXPECTED TIMETABLE
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ITEM 3. |
KEY INFORMATION
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A.
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[Reserved]
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B.
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Capitalization and Indebtedness
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C.
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Reasons for the Offer and Use of Proceeds
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D.
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Risk Factors
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Charter hire rates for dry bulk vessels are cyclical and volatile and the dry bulk market remains significantly below its historic high. This may adversely affect our earnings, revenue
and profitability and our ability to comply with our loan covenants or covenants in other financing agreements.
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The cyclical nature of the international tanker industry may lead to volatility in charter rates and vessel values, which could adversely affect our future earnings.
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An over-supply of tanker or dry bulk vessel capacity may depress the current charter rates and, in turn, adversely affect our profitability.
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Charter rates in the crude oil tankers sector and in the product tanker sectors of the seaborne transportation industry had significantly declined in the previous years and may decline
again in the future, which may adversely affect our earnings.
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Outbreaks of epidemic and pandemic diseases, including COVID-19, and any relevant governmental responses thereto could adversely affect our business, results of operations or financial
condition.
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Our current fleet is mostly dependent on spot or index-linked charters, which are highly volatile, and any decrease in spot charter rates or indexes in the future may adversely affect
our earnings.
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If economic conditions throughout the world decline, it will negatively impact our results of operations, financial condition and cash flows, and could cause the market price of our
common shares to decline.
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Terrorist attacks and international hostilities could affect our business, results of operations, cash flows and financial condition.
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Risks associated with operating ocean-going vessels could affect our business and reputation, which could adversely affect our revenues and expenses.
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Any decrease in shipments of crude oil from the Arabian Gulf or the Atlantic basin may adversely affect our financial performance.
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A decrease in the level of China’s imports of crude oil or petroleum products or a decrease in oil trade globally could have a material adverse impact on our charterers’ business and, in
turn, could cause a material adverse impact on our results of operations, financial condition and cash flows.
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The employment of our tanker vessel and any tanker vessel we may acquire could be adversely affected by an inability to clear the Oil Majors’ vetting process, and we could be in breach
of our charter agreements.
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Rising fuel prices may adversely affect our profits.
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Inflation could adversely affect our operating results and financial condition.
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Our revenues are subject to seasonal fluctuations, which could affect our operating results and ability to service our debt or pay dividends.
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Climate change and greenhouse gas restrictions may be imposed.
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Pending and future tax law changes may result in significant additional taxes to us.
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Increased scrutiny of environmental, social and governance matters may impact our business and reputation.
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Our vessels and other vessels we may acquire may call on ports located in or may operate in countries that are subject to restrictions or sanctions imposed by the United States, the
European Union or other governments that could result in fines or other penalties imposed on us and may adversely affect our reputation and the market price of our common stock.
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Sulfur regulations to reduce air pollution from ships have required retrofitting of vessels and may cause us to incur significant costs.
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We are subject to regulation and liability under environmental laws that could require significant expenditures and affect our cash flows and net income.
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Regulations relating to ballast water discharge may adversely affect our revenues and profitability.
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Increased inspection procedures, tighter import and export controls and new security regulations could increase costs and disrupt our business.
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Acts of piracy on ocean-going vessels have increased in frequency, which could adversely affect our business.
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Increasing growth of electric vehicles and renewable fuels could lead to a decrease in trading and the movement of crude oil and petroleum products worldwide.
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The operation of dry bulk and tanker vessels has particular operational risks.
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If our vessels and other vessels we may acquire fail to maintain their class certification or fail any annual survey, intermediate survey, or special survey, or if any scheduled class
survey takes longer or is more expensive than anticipated, this could have a material adverse impact on our financial condition and results of operations.
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Because seafaring employees we employ are covered by industry wide collective bargaining agreements, failure of industry groups to renew those agreements may disrupt our operations and
adversely affect our earnings.
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Maritime claimants could arrest or attach our vessels and other vessels we may acquire, which could interrupt our cash flows.
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Governments could requisition our vessels and other vessels we may acquire during a period of war or emergency, which could negatively impact our business, financial condition, results
of operations, and available cash.
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The market values of our vessels and other vessels we may acquire may decrease, which could limit the amount of funds that we can borrow in the future, trigger breaches of certain
financial covenants under any current or future loan agreements and other financing agreements, and we may incur an impairment or, if we sell vessels following a decline in their market value, a loss.
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If we fail to manage our planned growth, we may not be able to successfully expand our fleet.
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Newbuilding projects are subject to risks that could cause delays.
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We may be unable to obtain financing for any vessels we may acquire.
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We may acquire additional vessels in the future, and if those vessels are not delivered on time or are delivered with significant defects, our earnings and financial condition could
suffer.
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Substantial debt levels could limit our flexibility to obtain additional financing and pursue other business opportunities.
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Our loan agreements contain, and we expect that other future loan agreements and financing arrangements will contain, restrictive covenants that may limit our liquidity and corporate
activities, which could limit our operational flexibility and have an adverse effect on our financial condition and results of operations. In addition, because of the presence of cross-default provisions in our loan agreements, a default
by us under one loan could lead to defaults under other loans and financing agreements.
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We depend on officers and directors who are associated with Seanergy, which may create conflicts of interest.
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Purchasing and operating secondhand vessels, which currently compose our entire fleet, and other vessels we may acquire, may result in increased operating costs and vessel off-hire,
which could adversely affect our financial condition and results of operations.
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The failure of our counterparties to meet their obligations under our charter agreements could cause us to suffer losses or otherwise adversely affect our business.
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Rising crew costs may adversely affect our profits.
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We may not be able to attract and retain key management personnel and other employees in the shipping industry, which may negatively affect the effectiveness of our management and our
results of operations.
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Our vessels and other vessels we may acquire may suffer damage, and we may face unexpected repair costs, which could adversely affect our cash flow and financial condition.
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We are exposed to U.S. dollar and foreign currency fluctuations and devaluations that could harm our reported revenue and results of operations.
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We maintain cash with a limited number of financial institutions including financial institutions that may be located in Greece, which will subject us to credit risk.
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In the highly competitive international shipping industry, we may not be able to compete for charters with new entrants or established companies with greater resources, which may
adversely affect our results of operations.
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We may be subject to litigation that, if not resolved in our favor and not sufficiently insured against, could have a material adverse effect on us.
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The shipping industry has inherent operational risks that may not be adequately covered by our insurances. Further, because we obtain some of our insurances
through protection and indemnity associations, we may also be retrospectively subject to calls or premiums in amounts based not only on our own claim records, but also on the claim records of all other members of the protection and
indemnity associations.
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Failure to comply with the U.S. Foreign Corrupt Practices Act of 1977, or FCPA, could result in fines, criminal penalties, and an adverse effect on our business.
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We depend on Seanergy and its wholly owned management subsidiaries, to operate our business and our business could be harmed if they fail to perform such services satisfactorily.
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We depend on third-party managers to manage part of our fleet.
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Management fees are payable to the Managers or our third-party managers regardless of our profitability, which could have a material adverse effect on our business, financial condition
and results of operations.
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We may be classified as a passive foreign investment company, which could result in adverse U.S. federal income tax consequences to U.S. holders of our common stock.
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We may have to pay tax on U.S. source income, which would reduce our earnings.
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We are a “foreign private issuer”, which could make our common stock less attractive to some investors or otherwise harm our stock price.
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Our corporate governance practices are in compliance with, and are not prohibited by, the laws of the Republic of the Marshall Islands, and as such we are entitled to exemption from
certain Nasdaq corporate governance standards. As a result, you may not have the same protections afforded to stockholders of companies that are subject to all of the Nasdaq corporate governance requirements.
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The Public Company Accounting Oversight Board inspection of our independent accounting firm could lead to adverse findings in our auditors’ reports and challenges to the accuracy of our
published audited financial statements.
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We conduct business in China, where the legal system is not fully developed and has inherent uncertainties that could limit the legal protections available to us.
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Changing laws and evolving reporting requirements could have an adverse effect on our business.
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A cyber-attack could materially disrupt our business.
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The smuggling of drugs or other contraband onto our vessels and other vessels we may acquire may lead to governmental claims against us.
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The market price of our common shares may in the future be subject to significant fluctuations. Further, there is no guarantee of a continuing public market to resell our common shares.
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We may issue additional common shares or other equity securities without shareholder approval which would dilute our existing shareholders’ ownership interests and may depress the market
price of our common shares.
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A possible “short squeeze” due to a sudden increase in demand of our common stock that largely exceeds supply may lead to further price volatility in our common shares.
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We may not have the surplus or net profits required by law to pay dividends. The declaration and payment of dividends will always be subject to the discretion of our board of directors
and will depend on a number of factors. Our board of directors may not declare dividends in the future.
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The superior voting rights of our Series B Preferred Shares may limit the ability of our common shareholders to control or influence corporate matters and the interests of the holder of
such shares could conflict with the interests of common shareholders.
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Anti-takeover provisions in our amended and restated articles of incorporation and bylaws could make it difficult for our shareholders to replace or remove our current board of directors
or could have the effect of discouraging, delaying or preventing a merger or acquisition, which could adversely affect the market price of our common shares.
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Issuance of preferred shares, such as our Series B preferred shares, may adversely affect the voting power of our common shareholders and have the effect of discouraging, delaying or
preventing a merger or acquisition, which could adversely affect the market price of our common shares.
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We may not be able to maintain compliance with the Nasdaq Capital Market’s continued listing requirements.
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We are an “emerging growth company” and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our Common Stock less attractive to
investors.
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We are incorporated in the Republic of the Marshall Islands, which does not have a well-developed body of corporate law, which may negatively affect the ability of shareholders to
protect their interests.
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As a Marshall Islands corporation with principal executive offices in Greece, and also having subsidiaries in the Republic of the Marshall Islands and other offshore jurisdictions such
as the Republic of Liberia, our operations may be subject to economic substance requirements.
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It may not be possible for investors to serve process on or enforce U.S. judgments against us.
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decrease in available financing for vessels;
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no active secondhand market for the sale of vessels;
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charterers seeking to renegotiate the rates for existing time charters;
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widespread loan covenant defaults in the dry bulk shipping industry due to the substantial decrease in vessel values; and
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declaration of bankruptcy by some operators, charterers and vessel owners.
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supply of and demand for energy resources, commodities, and semi-finished consumer and industrial products and the location of consumption versus the location of their regional and global exploration
production or manufacturing facilities
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the globalization of production and manufacturing
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global and regional economic and political conditions and developments
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armed conflicts and terrorist activities, including the ongoing war between Russia and Ukraine;
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natural disasters and weather; pandemics, such as the COVID-19 pandemic
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embargoes and strikes;
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disruptions and developments in international trade, including trade disputes or the imposition of tariffs on various commodities or finished goods
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changes in seaborne and other transportation patterns, including the distance cargo is transported by sea; environmental and other legal regulatory developments
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political developments, including changes to trade policies and or trade wars, including the provision or removal of economic stimulus measures meant to counteract the effects of sudden market disruptions
due to financial, economic or health crises;
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the number of newbuilding orders and deliveries including slippage in deliveries
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number of shipyards and ability of shipyards to deliver vessels
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port and canal congestion, speed of vessel operation, waiting times
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changes in national or international regulations (including but not limited to environmental regulations) that may effectively cause reductions in the carrying capacity of vessels or early obsolescence of
tonnage
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environmental concerns and regulations, including ballast water management, low sulfur fuel consumption regulations and reductions in CO2 emissions.
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the degree of recycling of older vessels, depending, among other things, on recycling rates and international recycling regulations
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availability of financing for new vessels and shipping activity
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vessel casualties
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number of vessels that are out of service, namely those that are laid-up, dry docked, awaiting repairs or otherwise not available for hire
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demand for and supply of liquid cargoes, including petroleum and petroleum products and any differences in supply and demand between regions;
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developments in international trade;
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changes in oil production and refining capacity and regional availability of petroleum refining capacity;
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environmental and other legal and regulatory developments, including the adoption of any limits on CO2 emissions or the consumption of carbon-based fuels due to climate change agreements or protocols;
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global and regional economic conditions, including the global impact of the COVID-19 pandemic and efforts throughout the world to contain its spread;
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the distance chemicals, petroleum and petroleum products are to be moved by sea;
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changes in seaborne and other transportation patterns, including changes in distances over which cargo is transported due to geographic changes in where oil is produced, refined and used;
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competition from alternative sources of energy;
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armed conflicts and terrorist activities, including the ongoing war between Russia and Ukraine;
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natural or man-made disasters that affect the ability of our vessels to use certain waterways;
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political developments, including changes to trade policies and or trade wars, including the provision or removal of economic stimulus measures meant to counteract the effects of sudden market disruptions due to financial, economic or
health crises;
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international sanctions, embargoes, import and export restrictions, nationalizations, wars and strikes;
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global or local health related issues including disease outbreaks or pandemics, such as the COVID-19 pandemic; and
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domestic and foreign tax policies.
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the number of newbuilding deliveries;
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the scrapping rate of older vessels;
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port or canal congestion, closure or blockage;
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waiting days in ports;
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the number of vessels that are used for storage or as floating storage offloading service vessels;
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the conversion of tankers to other uses, including conversion of vessels from transporting oil and petroleum products to carrying dry bulk cargo and the reverse conversion;
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availability of financing for new or secondhand tankers;
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the phasing out of single-hull tankers due to legislation and environmental concerns;
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the price of steel;
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the number of vessels that are out of service;
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national or international regulations that may effectively cause reductions in the carrying capacity of vessels or early obsolescence of tonnage; and
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environmental concerns and regulations, including ballast water management, low sulfur fuel consumption regulations and reductions in CO2 emissions.
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crew strikes and/or boycotts;
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marine disaster;
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acts of God;
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the damage or destruction of vessels due to marine disaster;
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piracy or other detentions;
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environmental accidents;
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cargo and property losses or damage; and
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business interruptions caused by mechanical failure, human error, war, terrorism, political action in various countries, labor strikes or adverse weather conditions.
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increased use of existing and future crude oil pipelines in the Arabian Gulf or Atlantic basin regions;
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increased demand for crude oil in the Arabian Gulf or Atlantic basin regions;
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a decision by OPEC or other petroleum exporters to increase their crude oil prices or to further decrease or limit their crude oil production;
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any increase in refining of crude into petroleum products for domestic consumption or export;
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armed conflict or acts of piracy in the Arabian Gulf or Atlantic basin including West Africa and political or other factors;
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economic and pandemic related crises that decrease oil demand generally;
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changes to oil production in other regions, such as the United States, Russia and Latin America; and
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the development and the relative costs of nuclear power, natural gas, coal and other alternative sources of energy.
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terminal use, which clears a vessel to call at one of the Oil Major’s terminals;
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voyage charter, which clears the vessel for a single voyage; and
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period charter (or time charter), which clears the vessel for use for an extended period of time.
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Office assessments and audits of the vessel operator;
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The vessel operator’s environmental, health, and safety record;
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Compliance with the standards of the IMO;
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Compliance with Oil Majors’ codes of conduct, policies, and guidelines, including policies relating to transparency, anti-bribery and ethical conduct requirements, and relationships with third parties;
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Compliance with heightened industry standards set by the Oil Majors;
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Results of Port State Control inspections (see below);
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Shipping industry relationships, reputation for customer services, and technical and operating expertise; and
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Shipping experience and quality of ship operations, including cost-effectiveness and technical capability and experience of crewmembers.
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prevailing levels of charter rates;
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general economic and market conditions affecting the shipping industry, including changes in global dry cargo commodity supply and the market for crude oil and petroleum products;
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competition from other shipping companies;
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types, sizes and age of vessels;
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sophistication and condition of the vessels;
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advances in efficiency, such as introduction of autonomous vessels;
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where the vessel was built and as-built specifications;
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lifetime maintenance record;
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supply and demand for vessels;
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number of newbuilding deliveries;
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number of vessels scrapped or otherwise removed from the world fleet;
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changes in environmental and other regulations that may limit the useful life of vessels;
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decreased costs and increases in use of other modes of transportation;
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cost of newbuildings or secondhand vessel acquisitions;
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whether the vessel is equipped with scrubbers or not;
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global economic or pandemic related crises;
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governmental and other regulations, including environmental regulations;
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ability of buyers to access financing and capital;
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technological advances; and
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•
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the cost of retrofitting or modifying existing ships to respond to technological advances in vessel design or equipment, changes in applicable environmental or other
regulations or standards, or otherwise.
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generate excess cash flow so that we can invest without jeopardizing our ability to cover current and foreseeable working capital needs, including debt service;
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finance our operations;
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identify opportunities to enter other seaborne transportation sectors;
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locate and acquire suitable vessels;
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identify and consummate acquisitions or joint ventures;
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integrate any acquired businesses or vessels, including those operating in sectors in which we do not currently operate, successfully with our existing operations;
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hire, train and retain qualified personnel and crew to manage and operate our growing business and fleet; and
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expand our customer base, including in new sectors.
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our ability to obtain additional financing, if necessary, for working capital, capital expenditures, acquisitions or other purposes may be impaired, or such financing may be unavailable on favorable terms,
or at all;
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we may need to use a substantial portion of our cash from operations to make principal and interest payments on our bank debt and financing liabilities, reducing the funds that would otherwise be available
for operations, future business opportunities and any future dividends to our shareholders;
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our debt level could make us more vulnerable to competitive pressures or a downturn in our business or the economy generally than our competitors with less debt; and
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our debt level may limit our flexibility in responding to changing business and economic conditions.
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quarterly variations in our results of operations;
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changes in market valuations of similar companies and stock market price and volume fluctuations generally;
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changes in earnings estimates or the publication of research reports by analysts;
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speculation in the press or investment community about our business or the shipping industry generally;
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strategic actions by us or our competitors such as acquisitions or restructurings;
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the thin trading market for our common shares, which makes it somewhat illiquid;
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regulatory developments;
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additions or departures of key personnel;
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• |
general market conditions; and
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• |
domestic and international economic, market and currency factors unrelated to our performance.
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• |
our existing shareholders’ proportionate ownership interest in us will decrease;
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• |
the amount of cash available for dividends payable per common share may decrease;
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• |
the relative voting strength of each previously outstanding common share may be diminished; and
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• |
the market price of our common shares may decline.
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• |
authorize our board of directors to issue “blank check” preferred stock without shareholder approval, including preferred shares with superior voting rights, such as the Series B Preferred Shares;
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• |
provide for a classified board of directors with staggered, three-year terms;
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• |
permit the removal of any director only for cause;
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• |
prohibiting shareholder action by written consent unless the written consent is signed by all shareholders entitled to vote on the action;
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• |
limiting the persons who may call special meetings of shareholders; and
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• |
establishing advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted on by shareholders at meetings of shareholders.
|
ITEM 4. |
INFORMATION ON THE COMPANY
|
A. |
History and Development of the Company
|
B. |
Business Overview
|
Vessel Name
|
Sector
|
Year Built
|
Dwt
|
Flag
|
Yard
|
Type of Employment
|
|||||||
Epanastasea
|
Tanker / LR2
|
2008
|
109,647
|
Marshall Islands
|
Dalian
|
Fixed Rate T/C(1)
|
|||||||
Goodship
|
Dry Bulk / Capesize
|
2005
|
177,536
|
Liberia
|
Mitsui
|
T/C Index Linked (2)
|
|||||||
Tradership
|
Dry Bulk / Capesize
|
2006
|
176,925
|
Marshall Islands
|
Namura
|
T/C Index Linked (3)
|
|||||||
Gloriuship
|
Dry Bulk / Capesize
|
2004
|
171,314
|
Marshall Islands
|
Hyundai
|
T/C Index Linked(4)
|
|||||||
Oasea
|
Dry Bulk / Kamsarmax
|
2010
|
82,217
|
Marshall Islands
|
Tsuneishi
|
T/C Index Linked (5)
|
|||||||
Chrisea
|
Dry Bulk / Panamax
|
2013
|
78,173
|
Marshall Islands
|
Shin Kurushima
|
T/C Index Linked (6)
|
(i) |
injury to, destruction or loss of, or loss of use of, natural resources and related assessment costs;
|
(ii) |
injury to, or economic losses resulting from, the destruction of real and personal property;
|
(iii) |
loss of subsistence use of natural resources that are injured, destroyed or lost;
|
(iv) |
net loss of taxes, royalties, rents, fees or net profit revenues resulting from injury, destruction or loss of real or personal property, or natural resources;
|
(v) |
lost profits or impairment of earning capacity due to injury, destruction or loss of real or personal property or natural resources; and
|
(vi) |
net cost of increased or additional public services necessitated by removal activities following a discharge of oil, such as protection from fire, safety or health hazards, and loss of subsistence use of
natural resources.
|
C. |
Organizational Structure
|
D. |
Property, Plants and Equipment
|
ITEM 4A. |
UNRESOLVED STAFF COMMENTS
|
ITEM 5. |
OPERATING AND FINANCIAL REVIEW AND PROSPECTS
|
A. |
Operating Results
|
• |
number of vessels owned and operated;
|
• |
voyage charter rates;
|
• |
time charter trip rates;
|
• |
period time charter rates;
|
• |
the nature and duration of our voyage charters;
|
• |
vessels repositioning;
|
• |
vessel operating expenses and direct voyage costs;
|
• |
maintenance and upgrade work;
|
• |
the age, condition and specifications of our vessels and other vessels we may acquire;
|
• |
issuance of our common shares and other securities;
|
• |
amount of debt obligations; and
|
• |
financing costs related to debt obligations.
|
(In thousands of U.S. Dollars)
|
For the period from
January 20, 2022
(date of inception) to
December 31, 2022
|
|||
Revenues:
|
||||
Vessel revenue, net
|
22,784
|
|||
Expenses:
|
||||
Voyage expenses
|
(5,245
|
)
|
||
Vessel operating expenses
|
(5,179
|
)
|
||
Management fees
|
(241
|
)
|
||
Management fees-related party
|
(285
|
)
|
||
General and administrative expenses
|
(5,524
|
)
|
||
Depreciation and amortization
|
(1,903
|
)
|
||
Gain on sale of vessels
|
36,095
|
|||
Operating Income
|
40,502
|
|||
Other income / (expenses), net
|
||||
Interest and finance costs
|
(2,452
|
)
|
||
Loss on extinguishment of debt
|
(593
|
)
|
||
Other,net
|
33
|
|||
Total other expenses, net
|
(3,012
|
)
|
||
Net income
|
37,490
|
|||
Net income attributable to common stockholders
|
35,086
|
United Maritime Predecessor
|
||||||||||||
(In thousands of U.S. Dollars)
|
For the period
from January 1,
2022 through July
5, 2022
|
For the year
ended December
31, 2021
|
For the year ended
December 31,
2020
|
|||||||||
Revenues:
|
||||||||||||
Vessel revenue, net
|
2,327
|
7,395
|
4,124
|
|||||||||
Expenses:
|
||||||||||||
Voyage expenses
|
(440
|
)
|
(145
|
)
|
(133
|
)
|
||||||
Vessel operating expenses
|
(1,100
|
)
|
(2,307
|
)
|
(1,974
|
)
|
||||||
Management fees – related party
|
(136
|
)
|
(237
|
)
|
(238
|
)
|
||||||
Management fees
|
(66
|
)
|
(105
|
)
|
(102
|
)
|
||||||
General and administrative expenses
|
(341
|
)
|
(613
|
)
|
(301
|
)
|
||||||
Depreciation and amortization
|
(667
|
)
|
(1,073
|
)
|
(1,075
|
)
|
||||||
Operating (loss) / income
|
(423
|
)
|
2,915
|
301
|
||||||||
Other (expenses) / income, net:
|
||||||||||||
Interest and finance costs, net
|
(324
|
)
|
(744
|
)
|
(708
|
)
|
||||||
Gain on debt refinancing
|
-
|
-
|
1,491
|
|||||||||
Other, net
|
10
|
(1
|
)
|
7
|
||||||||
Total other (expenses) / income, net
|
(314
|
)
|
(745
|
)
|
790
|
|||||||
Net (loss) / income
|
(737
|
)
|
2,170
|
1,091
|
• |
exemption from the auditor attestation requirement in the assessment of the emerging growth company’s internal controls over financial reporting under Section 404(b) of Sarbanes-Oxley; and
|
• |
exemption from compliance with any new requirements adopted by the Public Company Accounting Oversight Board, or the PCAOB, requiring mandatory audit firm rotation or a supplement to the auditor’s report in
which the auditor would be required to provide additional information about the audit and financial statements.
|
B. |
Liquidity and Capital Resources
|
C. |
Research and development, patents and licenses, etc.
|
D. |
Trend Information
|
Fleet data:
|
For the period from
January 20, 2022
(date of inception) to
December 31, 2022
|
|||
Ownership days
|
614
|
|||
Available days
|
614
|
|||
Operating days
|
610
|
|||
Fleet utilization
|
99.3
|
%
|
||
Average daily results:
|
||||
TCE rate(1)
|
$
|
28,752
|
||
Daily Vessel Operating Expenses(2)
|
$
|
7,265
|
United Maritime Predecessor
|
||||||||||||
Fleet data:
|
For the period
from January 1,
2022 through July
5, 2022
|
For the year
ended December
31, 2021
|
For the year ended
December 31,
2020
|
|||||||||
Ownership days
|
186
|
365
|
366
|
|||||||||
Available days
|
126
|
365
|
366
|
|||||||||
Operating days
|
116
|
363
|
362
|
|||||||||
Fleet utilization
|
62.3
|
%
|
99.5
|
%
|
98.9
|
%
|
||||||
Average daily results:
|
||||||||||||
TCE rate(1)
|
$
|
16,267
|
$
|
19,972
|
$
|
11,025
|
||||||
Daily Vessel Operating Expenses(2)
|
$
|
5,914
|
$
|
6,321
|
$
|
5,393
|
(1) |
We include TCE rate, a non-GAAP measure, as we believe it provides additional meaningful information in conjunction with net revenues from vessels, the most directly comparable U.S. GAAP measure, because it
assists our management in making decisions regarding the deployment and use of our vessels and in evaluating their financial performance. Our calculation of TCE rate may not be comparable to that reported by other companies. The following
table reconciles our net revenues from vessel to TCE rate.
|
(2) |
We include Daily Vessel Operating Expenses, a non-GAAP measure, as we believe it provides additional meaningful information in conjunction with vessel operating expenses, the most directly comparable U.S.
GAAP measure, because it assists our management in making decisions regarding the deployment and use of our vessels and in evaluating their financial performance. Our calculation of Daily Vessel Operating Expenses may not be comparable to
that reported by other companies. The following table reconciles our vessel operating expenses to Daily Vessel Operating Expenses.
|
For the period from
January 20, 2022
(date of inception) to
December 31, 2022
|
||||
Vessel revenue, net
|
$
|
22,784
|
||
Less: Voyage expenses
|
5,245
|
|||
Time charter equivalent revenues
|
$
|
17,539
|
||
Operating days
|
610
|
|||
TCE rate
|
$
|
28,752
|
United Maritime Predecessor
|
||||||||||||
For the period
from January 1,
2022 through July
5, 2022
|
For the year
ended December
31, 2021
|
For the year ended
December 31,
2020
|
||||||||||
Vessel revenue, net
|
$
|
2,327
|
$
|
7,395
|
$
|
4,124
|
||||||
Less: Voyage expenses
|
440
|
145
|
133
|
|||||||||
Time charter equivalent revenues
|
$
|
1,887
|
$
|
7,250
|
$
|
3,991
|
||||||
Operating days
|
116
|
363
|
362
|
|||||||||
TCE rate
|
$
|
16,267
|
$
|
19,972
|
$
|
11,025
|
For the period from
January 20, 2022
(date of inception) to
December 31, 2022
|
||||
Vessel operating expenses
|
$
|
5,179
|
||
Less: Pre-delivery expenses
|
718
|
|||
Vessel operating expenses before pre-delivery expenses
|
$
|
4,461
|
||
Ownership days
|
614
|
|||
Daily Vessel Operating Expenses
|
$
|
7,265
|
United Maritime Predecessor
|
||||||||||||
For the period
from January 1,
2022 through July
5, 2022
|
For the year
ended December
31, 2021
|
For the year ended
December 31,
2020
|
||||||||||
Vessel operating expenses
|
$
|
1,100
|
$
|
2,307
|
$
|
1,974
|
||||||
Ownership days
|
186
|
365
|
366
|
|||||||||
Daily Vessel Operating Expenses
|
$
|
5,914
|
$
|
6,321
|
$
|
5,393
|
E. |
Critical Accounting Estimates
|
|
|
Carrying value plus unamortized dry-docking costs
and cost of any equipment not yet installed as of
(in millions of U.S. dollars)
|
|||||||||||||
Vessel
|
|
Year
Built
|
|
Dwt
|
December 31,
2022
|
|
December 31,
2021
|
||||||||
Gloriuship
|
|
2004
|
|
171,314
|
17.6
|
*
|
12.4
|
||||||||
Epanastasea
|
2008
|
109,647
|
20.3
|
-
|
|||||||||||
TOTAL
|
37.9
|
12.4
|
* |
Indicates Company’s vessels for which we believe, as of December 31, 2022 and 2021, the basic charter-free market value was lower than the vessel’s carrying value plus unamortized dry-docking costs and cost
of any equipment not yet installed.
|
• |
reports by industry analysts and data providers that focus on our industry and related dynamics affecting vessel values;
|
• |
news and industry reports of similar vessel sales;
|
• |
news and industry reports of sales of vessels that are not similar to our vessels and other vessels we may acquire where we have made certain adjustments in an attempt to derive information that can be used
as part of our estimates;
|
• |
approximate market values for our vessels and other vessels we may acquire or similar vessels that we have received from shipbrokers, whether solicited or unsolicited, or that shipbrokers have generally
disseminated;
|
• |
offers that we may have received from potential purchasers of our vessels and other vessels we may acquire; and
|
• |
vessel sale prices and values of which we are aware through both formal and informal communications with shipowners, shipbrokers, industry analysts and various other shipping industry participants and
observers.
|
ITEM 6. |
DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
|
A. |
Directors and Senior Management
|
Name
|
|
Age
|
Position
|
|
Director Class
|
|
Stamatios Tsantanis
|
|
51
|
Chairman, Chief Executive Officer & Director
|
|
C |
|
Stavros Gyftakis
|
|
44
|
Chief Financial Officer & Director
|
|
B |
|
Christina Anagnostara
|
|
52
|
Director*
|
|
A |
|
Ioannis Kartsonas
|
|
51
|
Director*
|
|
A |
|
Dimitrios Kostopoulos
|
|
48
|
Director*
|
|
B |
* |
Independent Director
|
Board Diversity Matrix (As of April 3, 2023)
|
||||
To be completed by Foreign Issuers (with principal executive offices outside of the U.S.) and Foreign Private Issuers
|
||||
Country of Principal Executive Offices
|
Greece
|
|||
Foreign Private Issuer
|
Yes
|
|||
Disclosure Prohibited under Home Country Law
|
No
|
|||
Total Number of Directors
|
5
|
|||
Female
|
Male
|
Non-Binary
|
Did Not Disclose Gender
|
|
Part I: Gender Identity
|
||||
Directors
|
1
|
4
|
0
|
0
|
Part II: Demographic Background
|
||||
Underrepresented Individual in Home Country Jurisdiction
|
0
|
|||
LGBTQ+
|
0
|
|||
Did Not Disclose Demographic Background
|
0
|
B. |
Compensation
|
C. |
Board Practices
|
D. |
Employees
|
E. |
Share Ownership
|
ITEM 7. |
MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
|
A.
|
Major Shareholders
|
Identity of Person or Group
|
|
Number of
Shares Owned
|
Percent of
Class
|
||||||
Stamatios Tsantanis (1)
|
768,912
|
8.7
|
%
|
||||||
Ioannis Kartsonas
|
175,296
|
2.0
|
%
|
||||||
Stavros Gyftakis
|
|
170,008
|
1.9
|
%
|
|||||
Christina Anagnostara
|
|
170,000
|
1.9
|
%
|
|||||
Dimitrios Kostopoulos
|
|
170,000
|
1.9
|
%
|
|||||
Directors as a group (5 individuals)
|
|
1,454,216
|
16.4
|
%
|
* |
Less than one percent.
|
(1) |
In addition, Stamatios Tsantanis owns 100% of our issued and outstanding Series B Preferred Shares, or 40,000 of our Series B Preferred Shares. Through his beneficial ownership of our Series B Preferred
Shares, Stamatios Tsantanis controls 49.99% of the vote of any matter submitted to the vote of the common shareholders. See “Description of Capital Stock — Series B Preferred Stock” for a description of the terms, including the voting
power, of the Series B Preferred Shares.
|
B.
|
Related Party Transactions
|
C.
|
Interests of Experts and Counsel
|
ITEM 8. |
FINANCIAL INFORMATION
|
A.
|
Consolidated Statements and Other Financial Information
|
B.
|
Significant Changes
|
ITEM 9. |
THE OFFER AND LISTING
|
ITEM 10. |
ADDITIONAL INFORMATION
|
A.
|
Share Capital
|
B.
|
Memorandum and articles of association
|
C.
|
Material contracts
|
D.
|
Exchange controls
|
E.
|
Taxation
|
• |
an individual citizen or resident of the United States;
|
• |
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) that is created or organized (or treated as created or organized) in or under the laws of the United States, any
state thereof or the District of Columbia;
|
• |
an estate whose income is includible in gross income for U.S. federal income tax purposes regardless of its source; or
|
• |
a trust if (i) a U.S. court can exercise primary supervision over the trust’s administration and one or more U.S. persons are authorized to control all substantial decisions of the trust, or (ii) it has a
valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
|
• |
financial institutions or “financial services entities”;
|
• |
broker-dealers;
|
• |
taxpayers who have elected mark-to-market accounting for U.S. federal income tax purposes;
|
• |
tax-exempt entities;
|
• |
governments or agencies or instrumentalities thereof;
|
• |
insurance companies;
|
• |
regulated investment companies;
|
• |
real estate investment trusts;
|
• |
certain expatriates or former long-term residents of the United States;
|
• |
persons that actually or constructively own 10% or more (by vote or value) of our shares;
|
• |
persons that own shares through an “applicable partnership interest”;
|
• |
persons required to recognize income for U.S. federal income tax purposes no later than when such income is reported on an “applicable financial statement”;
|
• |
persons that hold our common stock as part of a straddle, constructive sale, hedging, conversion or other integrated transaction; or
|
• |
persons whose functional currency is not the U.S. dollar.
|
• |
more than 50% of the value of our stock is owned, directly or indirectly, by “qualified shareholders,” that are persons (i) who are “residents” of our country of organization or of another foreign country
that grants an “equivalent exemption” to corporations organized in the United States, and (ii) we satisfy certain substantiation requirements, which we refer to as the “50% Ownership Test”; or
|
• |
our stock is “primarily” and “regularly” traded on one or more established securities markets in our country of organization, in another country that grants an “equivalent exemption” to United States
corporations, or in the United States, which we refer to as the “Publicly-Traded Test.”
|
• |
we have, or are considered to have, a fixed place of business in the United States involved in the earning of shipping income; and
|
• |
substantially all of our U.S. source gross shipping income is attributable to regularly scheduled transportation, such as the operation of a vessel that follows a published schedule with repeated sailings
at regular intervals between the same points for voyages that begin or end in the United States, or, in the case of income from the leasing of a vessel, is attributable to a fixed place of business in the United States.
|
• |
at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
• |
at least 50% of the average value of the assets held by us during such taxable year produce, or is held for the production of, passive income.
|
• |
the excess distribution or gain would be allocated ratably over the Non-Electing Holders’ aggregate holding period for the common stock;
|
• |
the amount allocated to the current taxable year and any taxable year before we became a passive foreign investment company would be taxed as ordinary income; and
|
• |
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed
deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
• |
fails to provide an accurate taxpayer identification number;
|
• |
is notified by the IRS that backup withholding is required; or
|
• |
fails in certain circumstances to comply with applicable certification requirements.
|
F.
|
Dividends and paying agents
|
G.
|
Statement by experts
|
H.
|
Documents on display
|
I.
|
Subsidiary information
|
ITEM 12. |
DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
|
ITEM 13. |
DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
|
ITEM 14. |
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
|
ITEM 15. |
CONTROLS AND PROCEDURES
|
a)
|
Disclosure Controls and Procedures
|
b) |
Management’s Annual Report on Internal Control over Financial Reporting
|
c)
|
Attestation Report of the Registered Public Accounting Firm
|
d)
|
Changes in Internal Control over Financial Reporting
|
ITEM 16. |
[Reserved]
|
ITEM 16A. |
AUDIT COMMITTEE FINANCIAL EXPERT
|
ITEM 16B. |
CODE OF ETHICS
|
ITEM 16C. |
PRINCIPAL ACCOUNTANT FEES AND SERVICES
|
2022
|
||||
Audit fees
|
$
|
172,000
|
||
Audit related fees
|
46,000
|
|||
Tax fees
|
-
|
|||
All other fees
|
-
|
|||
Total fees
|
$
|
218,000
|
ITEM 16D. |
EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
|
ITEM 16E. |
PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
|
Month
|
Total
Number of
Shares (or
Units)
Purchased
|
Average
Price Paid
per Share (or
Units)
|
Total Number of Shares
(or Units) Purchased as
Part of Publicly Announced Plans or
Programs
|
Maximum Number (or
Approximate Dollar Value) of
Shares (or Units) that May Yet
Be Purchased Under the Plans
or Programs
|
||||||||||||
September 1 – 30, 2022
|
2,580,763
|
$
|
1.676
|
2,580,763
|
$
|
4,671,905
|
||||||||||
October 1 – 31, 2022
|
709,091
|
$
|
2.318
|
709,091
|
$
|
2,999,836
|
ITEM 16F. |
CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT
|
ITEM 16G. |
CORPORATE GOVERNANCE
|
• |
In lieu of obtaining shareholder approval prior to the issuance of designated securities or the adoption of equity compensation
plans or material amendments to such equity compensation plans, we will comply with provisions of the BCA, providing that the board of directors approve share issuances and adoptions of and material amendments to equity compensation
plans. Likewise, in lieu of obtaining shareholder approval prior to the issuance of securities in certain circumstances, consistent with the BCA and our amended and restated articles of incorporation and amended and restated bylaws, the
board of directors approves certain share issuances.
|
• |
The Company’s board of directors is not required to have an Audit Committee comprised of at least three members. Our Audit Committee is comprised of two members.
|
• |
The Company’s board of directors is not required to meet regularly in executive sessions without management present.
|
• |
As a foreign private issuer, we are not required to solicit proxies or provide proxy statements to Nasdaq pursuant to Nasdaq corporate governance rules or Marshall Islands law. Consistent with Marshall
Islands law and as provided in our amended and restated bylaws, we will notify our shareholders of meetings between 15 and 60 days before the meeting. This notification will contain, among other things, information regarding business to
be transacted at the meeting.
|
ITEM 16H. |
MINE SAFETY DISCLOSURE
|
ITEM 16I. |
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
|
ITEM 17. |
FINANCIAL STATEMENTS
|
ITEM 18. |
FINANCIAL STATEMENTS
|
ITEM 19. |
EXHIBITS
|
Exhibit
Number
|
|
Description
|
|
Amended and Restated Articles of Incorporation of the Company (incorporated by reference to Exhibit 1.1 to the Company’s
Registration Statement on Form 20-F filed with the Commission on June 6, 2022)
|
|
|
||
|
Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 1.2 to the Company’s Registration Statement on
Form 20-F filed with the Commission on June 6, 2022)
|
|
|
||
|
Form of Common Share Certificate (incorporated by reference to Exhibit 2.1 to the Company’s Registration Statement on Form 20-F filed with the Commission on June 6, 2022)
|
|
|
||
|
Statement of Designation of the Series A Participating Preferred Stock of the Company (incorporated by reference to Exhibit 2.2
to the Company’s Registration Statement on Form 20-F filed with the Commission on June 6, 2022)
|
|
|
||
|
Statement of Designation of the Series B Preferred Shares of the Company (incorporated by reference to Exhibit 2.3 to the Company’s Registration Statement on Form 20-F filed with the
Commission on June 6, 2022)
|
|
Description of Securities*
|
||
|
||
|
Shareholders Rights Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form F-1 filed with the Commission on July 12, 2022)
|
|
|
||
|
Amended and Restated Equity Incentive Plan of the registrant dated December 28, 2022*
|
|
Right of First Refusal Agreement by and between the Company and Seanergy Maritime Holdings Corp. (incorporated by reference to Exhibit 10.3 to the Company’s Registration
Statement on Form F-1 filed with the Commission on July 12, 2022)
|
|
|
||
|
Contribution and Conveyance Agreement by and between the Company and Seanergy Maritime Holdings Corp. (incorporated by reference to Exhibit 10.4 to the Company’s
Registration Statement on Form F-1 filed with the Commission on July 12, 2022)
|
|
|
||
|
Master Management Agreement by and between the Company and Seanergy Maritime Holdings Corp. (incorporated by reference to Exhibit 10.5 to the Company’s Registration
Statement on Form F-1 filed with the Commission on July 12, 2022)
|
|
|
||
|
Form of Technical Management Agreement with Seanergy Shipmanagement Corp. (incorporated by reference to Exhibit 4.6 to the Company’s Registration Statement on Form 20-F
filed with the Commission on June 6, 2022)
|
|
4.7 |
Form of Technical Management Agreement with V.Ships Limited*
|
|
|
||
4.8 |
Technical Management Agreement for the MT Epanastasea*
|
|
|
||
|
Form of Commercial Management Agreement with Seanergy Management Corp. (incorporated by reference to Exhibit 4.7 to the Company’s Registration Statement on Form 20-F filed
with the Commission on June 6, 2022)
|
|
4.10 |
Commercial Management Agreement for the MT Epanastasea*
|
|
|
||
|
Facility Agreement dated July 15, 2020 among Seanergy Maritime Holdings Corp., Sea Genius Shipping Co., Sea Glorius Shipping Co., the financial institutions listed in Part B of Schedule 1 thereto, Lucid
Trustee Services Limited and Lucid Agency Services Limited (incorporated by reference to Exhibit 4.8 to the Company’s Registration Statement on Form 20-F filed with the Commission on June 6, 2022)
|
|
|
||
|
Deed of Release, Accession and Amendment among the Company, Seanergy Maritime Holdings Corp., Sea Glorius Shipping Co., Kroll Agency Services Limited and Kroll Trustee Services Limited dated July 1, 2022 (incorporated by reference to Exhibit 10.9 to the Company’s Registration Statement on Form F-1 filed with the Commission on July 12, 2022)
|
|
4.13 |
Amendment and Restatement Agreement dated July 28, 2022 among United Maritime Corporation, Sea Glorius Shipping Co., Kroll Trustee Services Limited and Kroll Agency Services Limited*
|
|
4.14 |
Side Letter dated November 4, 2022 to Kroll Agency Services Limited*
|
|
4.15 |
Facility Agreement dated August 8, 2022 among Parosea Shipping Co., Bluesea Shipping Co., Minoansea Maritime Co., Epanastasea Maritime Co., United
Maritime Corporation, the financial institutions listed in Part B of Schedule 1 thereto, Kroll Trustee Services Limited and Kroll Agency Services Limited*
|
|
Form of Securities Purchase Agreement between United Maritime Corporation and certain purchasers thereto (incorporated by reference to Exhibit 4.2 to the Company’s Current
Report on Form 6-K filed with the Commission on July 21, 2022)
|
Warrant Agency Agreement dated July 19, 2022 between United Maritime Corporation and American Stock Transfer & Trust Company, LLC (incorporated by reference to Exhibit
4.3 to the Company’s Current Report on Form 6-K filed with the Commission on July 21, 2022)
|
||
4.17.2 |
Form of Class A Share Purchase Warrant (incorporated by reference to Exhibit 4.5 to the Company’s Current Report on Form 6-K filed
with the Commission on July 21, 2022)
|
|
Supplemental Letter dated October 26, 2022 among Parosea Shipping Co. Bluesea Shipping Co., Minoansea Maritime Co., Epanastasea Maritime Co., the lenders thereto, Kroll Agency Services
Limited, and Kroll Trustee Services Limited*
|
||
Second Supplemental Agreement dated December 21, 2022 among Minoansea Maritime Co., Epanastasea Maritime Co., the financial institutions listed therein, Kroll Agency Services Limited,
and Kroll Trustee Services Limited*
|
||
Deed of Accession, Amendment and Restatement dated January 30, 2023 among Minoansea Maritime Co., Epanastasea Maritime Co., Good Maritime Co., Traders Maritime Co., United Maritime
Corporation, Kroll Agency Services Limited, Kroll Trustee Services Limited, among others*
|
||
4.21 |
Bareboat Charterparty dated February 9, 2023 for the M/V Chrisea*
|
|
4.22 |
Bareboat Charter Agreement dated March 31, 2023 between NML Oasea LLC and Oasea Maritime Co. for the M/V Oasea*
|
|
4.23 |
Guarantee in respect of M/V Oasea dated March 31, 2023 between NML Oasea LLC and Oasea Maritime Co.*
|
|
|
List of Subsidiaries*
|
|
12.1 |
Rule 13a-14(a)/15d-14(a) Certification of the Company’s Principal Executive Officer*
|
|
12.2 |
Rule 13a-14(a)/15d-14(a) Certification of the Company’s Principal Financial Officer*
|
|
13.1 |
Certification of the Company’s Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002*
|
|
13.2 |
Certification of the Company’s Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002*
|
|
101 |
The following materials from the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, formatted in
Inline eXtensible Business Reporting Language (iXBRL): (i) Reports of Independent Registered Public Accounting Firm (PCAOB ID 1457), (ii) Consolidated Balance Sheet as of December 31, 2022, (iii) Consolidated Statement of Operations for
the period from inception (January 20, 2022) through December 31, 2022, (iv) Consolidated Statement of Stockholders' Equity for the period from inception (January 20, 2022) through December 31, 2022, (v) Consolidated Statement of Cash
Flows for the period from inception (January 20, 2022) through December 31, 2022, (vi) Notes to Consolidated Financial Statements, (vii) Report of Independent Registered Public Accounting Firm (PCAOB ID 1457), (viii) Carve-out Balance
Sheet as of December 31, 2021 (ix) Carve-out Statements of Operations for the period from January 1, 2022 through July 5, 2022 and for the years ended December 31, 2021 and 2020, (x) Carve-out Statements of Parent’s Equity for the
period from January 1, 2022 through July 5, 2022 and for the years ended December 31, 2021and 2020, (xi) Carve-out Statements of Cash Flows for the period from January 1, 2022 through July 5, 2022 and for the years ended December 31,
2021 and 2020, and (xii) Notes to the Carve-out Financial Statements.
|
|
104 |
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
|
United Maritime Corporation
|
|||
|
|||
By:
|
/s/ Stamatios Tsantanis
|
||
Name:
|
Stamatios Tsantanis
|
||
Title:
|
Chief Executive Officer
|
||
Date: April 4, 2023
|
Page
|
|
F-2
|
|
F-3
|
|
F-4
|
|
F-5
|
|
F-6
|
|
F-7
|
Notes
|
2022
|
|||||||
ASSETS
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
4
|
54,732
|
||||||
Accounts receivable trade
|
2,10
|
779
|
||||||
Inventories
|
2 |
107
|
||||||
Prepaid expenses
|
989
|
|||||||
Other current assets
|
10 |
3,207
|
||||||
Total current assets
|
59,814
|
|||||||
Fixed assets:
|
||||||||
Vessels, net
|
5
|
37,512
|
||||||
Advances for vessels acquisitions from related parties
|
3, 5
|
12,688
|
||||||
Total fixed assets
|
50,200
|
|||||||
Other non-current assets:
|
||||||||
Restricted cash, non-current
|
4
|
15,200
|
||||||
Deferred charges and other investments, non-current
|
2 |
441
|
||||||
TOTAL ASSETS
|
125,655
|
|||||||
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
||||||||
Current liabilities:
|
||||||||
Current portion of long-term debt, net of deferred finance costs and debt discounts of $527
|
6
|
7,473
|
||||||
Due to related parties
|
3
|
829
|
||||||
Trade accounts and other payables
|
3,018
|
|||||||
Accrued liabilities
|
5,495
|
|||||||
Deferred revenue
|
10 |
1,027
|
||||||
Dividends payable
|
9
|
7,373
|
||||||
Total current liabilities
|
25,215
|
|||||||
Non-current liabilities:
|
||||||||
Long-term debt, net of current portion and deferred finance costs and debt discounts of $67
|
6
|
35,133
|
||||||
Other liabilities, non-current
|
739
|
|||||||
Total liabilities
|
61,087
|
|||||||
Commitments and contingencies
|
8 |
|
||||||
STOCKHOLDERS’ EQUITY
|
||||||||
Preferred stock, $0.0001 par value; 100,000,000 shares authorized; 40,000
Series B preferred shares issued and outstanding as at December 31, 2022
|
9 |
-
|
||||||
Common stock, $0.0001 par value; 2,000,000,000 authorized shares as at December 31, 2022; 8,180,243 shares issued and outstanding as at December 31, 2022
|
9 |
1
|
||||||
Additional paid-in capital
|
9
|
35,193
|
||||||
Retained earnings
|
29,374
|
|||||||
Total Stockholders’ equity
|
64,568
|
|||||||
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY
|
125,655
|
Notes
|
2022
|
|||||||
Vessel revenue, net
|
2,3,10
|
22,784
|
||||||
Expenses:
|
||||||||
Voyage expenses
|
10
|
(5,245
|
)
|
|||||
Vessel operating expenses
|
(5,179
|
)
|
||||||
Management fees
|
(241
|
)
|
||||||
Management fees – related party
|
3 |
(285
|
)
|
|||||
General and administration expenses
|
13
|
(5,524
|
)
|
|||||
Depreciation
|
5 |
(1,903
|
)
|
|||||
Gain on sale of vessels, net
|
5
|
36,095
|
||||||
Operating income
|
40,502
|
|||||||
Other income / (expenses), net:
|
||||||||
Interest and finance costs
|
11
|
(2,452
|
)
|
|||||
Loss on extinguishment of debt
|
6
|
(593
|
)
|
|||||
Interest and other income
|
39
|
|||||||
Foreign currency exchange losses, net
|
(6
|
)
|
||||||
Total other expenses, net
|
(3,012
|
)
|
||||||
Net income
|
37,490
|
|||||||
Dividends on Series C preferred shares
|
9
|
(743
|
)
|
|||||
Dividends to non-vested participating securities
|
(667
|
)
|
||||||
Undistributed earnings to non-vested participating securities
|
(994 | ) | ||||||
Net income attributable to common stockholders
|
35,086
|
|||||||
Earnings per share, basic
|
12
|
7.79
|
||||||
Earnings per share, diluted
|
12
|
4.92
|
||||||
Weighted average common shares outstanding, basic
|
12
|
4,503,397
|
||||||
Weighted average common shares outstanding, diluted
|
12
|
7,299,561
|
Preferred stock Series B
|
Preferred stock Series C
|
Common stock
|
Additional | Total | ||||||||||||||||||||||||||||||||
# of Shares
|
Par
Value
|
# of Shares
|
Par
Value
|
# of Shares
|
Par
Value
|
paid-in
capital
|
Retained
earnings
|
stockholders’
equity
|
||||||||||||||||||||||||||||
Balance, January 20, 2022
|
-
|
-
|
-
|
-
|
500
|
-
|
-
|
-
|
-
|
|||||||||||||||||||||||||||
Spin-off transaction (Note 3)
|
40,000 | - | 5,000 | - | 1,512,004 | - | 18,728 | - | 18,728 | |||||||||||||||||||||||||||
Issuance of common stock (including exercise of warrants) (Note 9)
|
-
|
-
|
-
|
-
|
8,258,030
|
1
|
24,679
|
-
|
24,680
|
|||||||||||||||||||||||||||
Cancellation of common stock (Note 9)
|
-
|
-
|
-
|
-
|
(500
|
)
|
-
|
-
|
-
|
-
|
||||||||||||||||||||||||||
Issuance of preferred stock (Notes 3 & 9)
|
-
|
-
|
5,000
|
-
|
-
|
-
|
5,000
|
-
|
5,000
|
|||||||||||||||||||||||||||
Repurchase of common stock (Note 9)
|
-
|
-
|
-
|
-
|
(3,289,791
|
)
|
-
|
(6,003
|
)
|
-
|
(6,003
|
)
|
||||||||||||||||||||||||
Dividends on common stock and participating non vested restricted stock awards (Note 9)
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
(7,373
|
)
|
(7,373
|
)
|
|||||||||||||||||||||||||
Dividends on Series C preferred shares (Note 9)
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
(243
|
)
|
(243
|
)
|
|||||||||||||||||||||||||
Redemption of Series C preferred shares (Note 9)
|
-
|
-
|
(10,000
|
)
|
-
|
-
|
-
|
(10,000
|
)
|
(500
|
)
|
(10,500
|
)
|
|||||||||||||||||||||||
Stock based compensation (Note 13)
|
-
|
-
|
-
|
-
|
1,700,000
|
-
|
2,789
|
-
|
2,789
|
|||||||||||||||||||||||||||
Net income
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
37,490
|
37,490
|
|||||||||||||||||||||||||||
Balance, December 31, 2022
|
40,000
|
-
|
-
|
-
|
8,180,243
|
1
|
35,193
|
29,374
|
64,568
|
2022
|
||||
Cash flows from operating activities:
|
||||
Net income
|
37,490
|
|||
Adjustments to reconcile net income to net cash provided by operating activities:
|
||||
Depreciation
|
1,903
|
|||
Amortization of deferred finance costs and debt discounts
|
352
|
|||
Amortization of fair value of above market time charter
|
308
|
|||
Amortization of fair value of below market time charter
|
(146
|
)
|
||
Stock based compensation
|
2,789
|
|||
Loss on extinguishment of debt
|
593
|
|||
Gain on sale of vessels, net
|
(36,095
|
)
|
||
Changes in operating assets and liabilities:
|
||||
Accounts receivable trade
|
(660
|
)
|
||
Inventories
|
87
|
|||
Prepaid expenses
|
(990
|
)
|
||
Other current assets
|
(3,207
|
)
|
||
Deferred charges, non-current
|
(58
|
)
|
||
Trade accounts and other payables
|
(2,787
|
)
|
||
Accrued liabilities
|
6,804
|
|||
Other current liabilities |
(130 | ) | ||
Due to related parties
|
595
|
|||
Deferred revenue
|
1,027
|
|||
Net cash provided by operating activities
|
7,875
|
|||
Cash flows from investing activities:
|
||||
Vessels acquisitions and improvements
|
(80,832
|
)
|
||
Advances for vessels acquisitions from related parties
|
(12,688
|
)
|
||
Gross proceeds from sale of vessel
|
100,008
|
|||
Net cash provided by investing activities
|
6,488
|
|||
Cash flows from financing activities:
|
||||
Proceeds from issuance of common stock and warrants, net of underwriters fees and commissions
|
24,974
|
|||
Proceeds from issuance of preferred stock
|
10,000
|
|||
Redemption of preferred stock
|
(10,500
|
)
|
||
Dividends on preferred stock
|
(243
|
)
|
||
Payments for repurchase of common stock
|
(6,003
|
)
|
||
Proceeds from long-term debt
|
73,000
|
|||
Payments of financing and stock issuance costs
|
(909
|
)
|
||
Repayments of long-term debt
|
(34,750
|
)
|
||
Net cash provided by financing activities
|
55,569
|
|||
Net increase in cash and cash equivalents and restricted cash
|
69,932
|
|||
Cash and cash equivalents and restricted cash at beginning of period
|
-
|
|||
Cash and cash equivalents and restricted cash at end of period
|
69,932
|
|||
SUPPLEMENTAL CASH FLOW INFORMATION
|
||||
Cash paid during the period for:
|
||||
Interest
|
1,741
|
|||
Noncash investing activities:
|
||||
Vessel acquisition through spin-off (Note 5)
|
(18,500
|
)
|
||
Noncash financing activities:
|
||||
Dividends on common stock and participating non vested restricted stock awards declared but not paid (Note 9) |
(7,373 | ) | ||
Long-term debt assumed through spin-off (Note 6)
|
4,950
|
|||
Payments of financing and stock issuance stocks | (833 | ) |
1. |
Basis of Presentation and General Information:
|
a. |
Subsidiaries in Consolidation:
|
Company
|
Country of
Incorporation
|
Vessel name
|
Date of Delivery
|
Date of
Sale/Disposal
|
||||
United Management Corp. (1)(2)
|
Marshall Islands
|
N/A
|
N/A
|
N/A
|
||||
Sea Glorius Shipping Co. (1)
|
Marshall Islands
|
Gloriuship
|
July 6, 2022
|
N/A
|
||||
Epanastasea Maritime Co. (1)
|
Marshall Islands
|
Epanastasea
|
September 2, 2022
|
N/A
|
||||
Parosea Shipping Co. (1)
|
Marshall Islands
|
Parosea
|
August 10, 2022
|
November 8, 2022
|
||||
Bluesea Shipping Co. (1)
|
Marshall Islands
|
Bluesea
|
August 12, 2022
|
December 1, 2022
|
||||
Minoansea Maritime Co. (1)
|
Marshall Islands
|
Minoansea
|
August 30, 2022
|
December 22, 2022
|
||||
Good Maritime Co. (1)(Note 14)
|
Liberia
|
N/A
|
N/A
|
N/A
|
||||
Traders Maritime Co. (1)(Note 14)
|
Marshall Islands
|
N/A
|
N/A
|
N/A
|
(1) |
Subsidiaries wholly owned
|
(2) |
Management company
|
2. |
Significant Accounting Policies:
|
(a) |
Principles of Consolidation
|
(b) |
Use of Estimates
|
(c) |
Foreign Currency Translation
|
(d) |
Concentration of Credit Risk
|
(e) |
Cash and Cash Equivalents
|
(f) |
Term Deposits
|
(g) |
Restricted Cash
|
(h) |
Accounts Receivable Trade
|
(i) |
Inventories
|
(j) |
Insurance Claims
|
(k) |
Vessels
|
(l) |
Vessel Depreciation
|
(m) |
Impairment of Long-Lived Assets (Vessels)
|
(n) |
Dry-Docking and Special Survey Costs
|
(o) |
Commitments and Contingencies
|
(p) |
Revenue Recognition
|
• |
based on the pool points attributed to each vessel (which are determined
by vessel attributes such as cargo carrying capacity, speed, fuel consumption, and construction and other characteristics); or
|
• |
by making adjustments to account for the cost performance, the bunkering
fees and the trading capabilities of each vessel; and
|
• |
the number of days the vessel participated in the pool in the period
(excluding off-hire days).
|
(q) |
Commissions
|
(r) |
Vessel Voyage Expenses
|
(s) |
Fair value of above/ below market acquired time charters:
|
(t) |
Repairs and Maintenance
|
(u) |
Financing Costs
|
(v) |
Income Taxes
|
(w) |
Stock-based Compensation
|
(x) |
Earnings per Share
|
(y) |
Segment Reporting
|
(z) |
Fair Value Measurements
|
• |
Level 1: Quoted market prices in active markets for identical assets or
liabilities;
|
• |
Level 2: Observable market based inputs or unobservable inputs that are
corroborated by market data;
|
• |
Level 3: Unobservable inputs that are not corroborated by market data.
|
(aa) |
Debt Modifications and Extinguishments
|
(ab) |
Distinguishing Liabilities from Equity
|
(ac) |
Going Concern
|
(ad) |
Share repurchases
|
(ae) |
Evaluation of Nonmonetary Transactions
|
3. |
Transactions with related parties:
|
4. |
Cash and Cash Equivalents and Restricted Cash:
|
December 31, 2022
|
||||
Cash and cash equivalents
|
54,732
|
|||
Restricted cash, non-current
|
15,200
|
|||
Cash and cash equivalents and restricted cash | 69,932 |
5. |
Vessels, Net:
|
|
||||
Cost:
|
||||
Beginning balance at January 20, 2022
|
-
|
|||
- Vessel contributed by Seanergy
|
18,500
|
|||
- Additions
|
80,648
|
|||
- Disposals
|
(60,379
|
)
|
||
Ending balance at December 31, 2022
|
38,769
|
|||
Accumulated depreciation:
|
||||
Beginning balance at January 20, 2022
|
-
|
|||
- Depreciation for the period
|
(1,903
|
)
|
||
- Disposals
|
646
|
|||
Ending balance at December 31, 2022
|
(1,257
|
)
|
||
Net book value
|
37,512
|
6. |
Long-Term Debt and Other Financial Liabilities:
|
December 31, 2022
|
||||
Long-term debt
|
43,200
|
|||
Less: Deferred financing costs
|
(594
|
)
|
||
Total
|
42,606
|
|||
Less - current portion
|
(7,473
|
)
|
||
Long-term portion
|
35,133
|
Twelve month periods ending December 31,
|
Amount
|
|||
2023
|
8,000
|
|||
2024
|
35,200
|
|||
Total
|
43,200
|
7. |
Financial Instruments:
|
• |
Level 1: Quoted market prices in active markets for identical assets or liabilities;
|
• |
Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data;
|
• |
Level 3: Unobservable inputs that are not corroborated by market data.
|
(a) |
Significant Risks and Uncertainties, including Business and Credit Concentration
|
(b) |
Fair Value of Financial Instruments
|
a. |
Cash and cash equivalents, accounts receivable trade, other current assets, prepaid expenses, trade accounts and other payables and accrued liabilities: the carrying amounts
approximate fair value because of the short maturity of these instruments. The carrying value approximates the fair market value for interest bearing cash classified as restricted cash, non-current.
|
b. |
Long-term debt: The fair value of fixed interest long-term debt is estimated using prevailing market rates as of the period end. The carrying value of $43,200 is 1.1% higher than the
fair market value of $42,742. The fair value of the fixed interest long-term debt has been obtained through Level 2 inputs of the
fair value hierarchy.
|
c. |
The aggregate fair value as of the Spin-off date of $18,500 of
the vessel contributed to the Company as part of the Spin-off was determined through Level 2 inputs of the fair value hierarchy by taking into consideration two third party valuations obtained for the vessel.
|
d. |
The fair value as of the Spin-off date of $308 of the time
charter attached to the Gloriuship (Note 2(s)) contributed to the Company as part of the Spin Off was determined through Level 2 inputs of the fair value hierarchy as described in Note 2(z).
|
e. |
The July 2022 EnTrust Facility fair value of $4,950 assumed by
the Company as part of the Spin Off was determined through Level 2 inputs of the fair value hierarchy by taking into consideration prevailing market rates and approximated its respective carrying value as of the Spin-off date.
|
f. |
The Series B preferred shares issued to Seanergy’s shareholders as part of the Spin Off, which have no economic interest, were recorded at par value.
|
g. |
The Series C preferred shares issued to Seanergy as of the Spin-off date as part of the Contribution and Conveyance Agreement with Seanergy were recorded at their face value,
which was determined to be its fair value through Level 2 inputs of the fair value hierarchy. The Company’s debt and equity financings and the market risk-free rate were all used in determining the fair value of the Series C preferred
shares.
|
8. |
Commitments and Contingencies:
|
9. |
Capital Structure:
|
(a) |
Preferred Stock
|
(b) |
Common Stock
|
i) |
Equity Offerings
|
ii) |
Dividends
|
iii) |
Common stock buybacks
|
(c) |
Warrants
|
10. |
Vessel Revenue, net and Voyage Expenses:
|
From
January 20, 2022
through
December 31, 2022
|
||||
Vessel revenues from spot charters, net of commissions
|
9,236
|
|||
Vessel revenues from time charters and pool agreements, net of commissions
|
13,548
|
|||
Total
|
22,784
|
From
January 20, 2022 through
December 31, 2022
|
||||
Accounts receivable trade, net from spot charters
|
2
|
|||
Accounts receivable trade, net from time charters
|
777
|
|||
Total
|
779
|
Customer
|
From
January 20, 2022 through
December 31, 2022
|
||
A
|
25
|
%
|
|
B
|
20
|
%
|
|
C
|
19
|
%
|
|
D
|
15
|
%
|
|
E |
15
|
%
|
|
Total
|
94
|
%
|
From
January 20, 2022 through
December 31, 2022
|
||||
Voyage expenses from spot charters
|
4,802
|
|||
Voyage expenses from time charters
|
178
|
|||
Other |
265 | |||
Total
|
5,245
|
11. |
Interest and Finance Costs:
|
From
January 20, 2022 through
December 31, 2022
|
||||
Interest on long-term debt
|
2,045
|
|||
Amortization of deferred finance costs and debt discount
|
352
|
|||
Other
|
55
|
|||
Total
|
2,452
|
12. |
Earnings per Share:
|
From
January 20, 2022 through
December 31, 2022
|
||||
Net income - basic
|
37,490
|
|||
Less: Dividends on Series C preferred shares
|
(743
|
)
|
||
Less: Dividends to non-vested participating securities
|
(667
|
)
|
||
Less: Undistributed earnings to non-vested participating securities |
(994 | ) | ||
Net income attributable to common shareholders, basic
|
35,086
|
|||
Undistributed earnings to non-vested participating securities
|
994
|
|||
Undistributed earnings reallocated to non-vested participating securities |
(621 | ) | ||
Effect of Series C preferred shares
|
476
|
|||
Net income attributable to common shareholders, diluted
|
35,935
|
|||
Weighted average common shares outstanding – basic
|
4,503,397
|
|||
Effect of dilutive securities:
|
||||
Dilutive effect of Series C preferred shares
|
2,796,164
|
|||
Weighted average common shares outstanding – diluted
|
7,299,561
|
|||
Earnings per share – basic
|
$
|
7.79
|
||
Earnings per share – diluted
|
$
|
4.92
|
13. |
Equity Incentive Plan:
|
Number of
Shares
|
Weighted
Average
Grant
Date Price
|
|||||||
Outstanding at January 20, 2022
|
-
|
$
|
-
|
|||||
Granted
|
1,700,000
|
3.12
|
||||||
Vested
|
(566,684
|
)
|
3.12
|
|||||
Outstanding at December 31, 2022
|
1,133,316
|
$
|
3.12
|
14. |
Subsequent Events
|
Page
|
|
F-2
|
|
F-3
|
|
F-4
|
|
F-5
|
|
F-6
|
|
F-7
|
Notes
|
2021
|
|||||||
ASSETS
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
2
|
765,484
|
||||||
Accounts receivable trade
|
2
|
70,000
|
||||||
Inventories
|
2
|
99,325
|
||||||
Prepaid expenses
|
59,461
|
|||||||
Total current assets
|
994,270
|
|||||||
Fixed assets:
|
||||||||
Vessels, net
|
5
|
12,280,271
|
||||||
Total fixed assets
|
12,280,271
|
|||||||
Other non-current assets:
|
||||||||
Deferred charges and other long-term investments, non-current
|
2
|
155,549
|
||||||
TOTAL ASSETS
|
13,430,090
|
|||||||
LIABILITIES AND PARENT EQUITY
|
||||||||
Current liabilities:
|
||||||||
Current portion of long-term debt, net of deferred finance costs of $72,926
|
6
|
1,177,074
|
||||||
Trade accounts and other payables
|
268,429
|
|||||||
Accrued liabilities
|
309,611
|
|||||||
Deferred revenue
|
2
|
326,374
|
||||||
Total current liabilities
|
2,081,488
|
|||||||
Non-current liabilities:
|
||||||||
Long-term debt, net of current portion and deferred finance costs of $46,330
|
6
|
4,203,670
|
||||||
Other liabilities, non-current
|
104,554
|
|||||||
Total liabilities
|
6,389,712
|
|||||||
Commitments and contingencies
|
8
|
|||||||
PARENT EQUITY
|
||||||||
Parent investment, net
|
4
|
7,868,678
|
||||||
Accumulated deficit
|
(828,300
|
)
|
||||||
Parent equity, net
|
7,040,378
|
|||||||
TOTAL LIABILITIES AND PARENT EQUITY
|
13,430,090
|
Notes
|
From January 1, 2022 through July 5, 2022
|
2021
|
2020
|
|||||||||||||
Revenues:
|
||||||||||||||||
Vessel revenue
|
2
|
2,445,238
|
7,786,022
|
4,338,076
|
||||||||||||
Commissions - related party
|
3
|
(29,479
|
)
|
(97,695
|
)
|
(53,515
|
)
|
|||||||||
Commissions
|
(88,436
|
)
|
(293,086
|
)
|
(160,545
|
)
|
||||||||||
Vessel revenue, net
|
2,327,323
|
7,395,241
|
4,124,016
|
|||||||||||||
Expenses:
|
||||||||||||||||
Voyage expenses
|
2
|
(440,132
|
)
|
(144,614
|
)
|
(132,796
|
)
|
|||||||||
Vessel operating expenses
|
(1,099,880
|
)
|
(2,306,600
|
)
|
(1,973,636
|
)
|
||||||||||
Management fees - related party
|
3
|
(136,225
|
)
|
(237,250
|
)
|
(237,900
|
)
|
|||||||||
Management fees
|
(65,937
|
)
|
(105,000
|
)
|
(101,850
|
)
|
||||||||||
General and administration expenses
|
(341,309
|
)
|
(613,399
|
)
|
(300,705
|
)
|
||||||||||
Amortization of deferred dry-docking costs
|
(266,901
|
)
|
(316,450
|
)
|
(317,317
|
)
|
||||||||||
Depreciation
|
5
|
(400,285
|
)
|
(756,765
|
)
|
(758,839
|
)
|
|||||||||
Operating (loss) / income
|
(423,346
|
)
|
2,915,163
|
300,973
|
||||||||||||
Other (expenses) / income, net:
|
||||||||||||||||
Interest and finance costs
|
9
|
(323,788
|
)
|
(743,687
|
)
|
(708,445
|
)
|
|||||||||
Gain on debt refinancing
|
6
|
-
|
-
|
1,490,601
|
||||||||||||
Interest and other income
|
-
|
-
|
9,932
|
|||||||||||||
Foreign currency exchange gain / (losses), net
|
10,490
|
(1,211
|
)
|
(1,844
|
)
|
|||||||||||
Total other (expenses) / income, net
|
(313,298
|
)
|
(744,898
|
)
|
790,244
|
|||||||||||
Net (loss) / income
|
(736,644
|
)
|
2,170,265
|
1,091,217
|
Parent Investment, Net
|
Accumulated
Deficit
|
Total Equity
|
||||||||||
Balance, January 1, 2020
|
8,349,786
|
(4,089,782
|
)
|
4,260,004
|
||||||||
Parent investment, net (Note 4)
|
1,960,687
|
-
|
1,960,687
|
|||||||||
Net income
|
-
|
1,091,217
|
1,091,217
|
|||||||||
Balance, December 31, 2020
|
10,310,473
|
(2,998,565
|
)
|
7,311,908
|
||||||||
Parent investment, net (Note 4)
|
(2,441,795
|
)
|
-
|
(2,441,795
|
)
|
|||||||
Net income
|
-
|
2,170,265
|
2,170,265
|
|||||||||
Balance, December 31, 2021
|
7,868,678
|
(828,300
|
)
|
7,040,378
|
||||||||
Parent investment, net (Note 4)
|
1,253,526
|
-
|
1,253,526
|
|||||||||
Net loss
|
-
|
(736,644
|
)
|
(736,644
|
)
|
|||||||
Balance, July 5, 2022
|
9,122,204
|
(1,564,944
|
)
|
7,557,260
|
From January 1, 2022
through July 5, 2022
|
2021
|
2020
|
||||||||||
Cash flows from operating activities:
|
||||||||||||
Net (loss) / income
|
(736,644
|
)
|
2,170,265
|
1,091,217
|
||||||||
Adjustments to reconcile net (loss) / income to net cash (used in) / provided by operating activities:
|
||||||||||||
Depreciation
|
400,285
|
756,765
|
758,839
|
|||||||||
Amortization of deferred dry-docking costs
|
266,901
|
316,450
|
317,317
|
|||||||||
Amortization of deferred finance charges and other finance costs
|
44,308
|
101,289
|
96,300
|
|||||||||
Gain on debt refinancing
|
-
|
-
|
(1,490,601
|
)
|
||||||||
Changes in operating assets and liabilities:
|
||||||||||||
Accounts receivable trade
|
(48,728
|
)
|
(70,000
|
)
|
480,769
|
|||||||
Inventories
|
(16,562
|
)
|
(45,190
|
)
|
(3,354
|
)
|
||||||
Prepaid expenses
|
40,123
|
(12,132
|
)
|
3,223
|
||||||||
Deferred charges, non-current
|
(3,241,630
|
)
|
-
|
-
|
||||||||
Trade accounts and other payables
|
2,832,156
|
133,888
|
(1,932,686
|
)
|
||||||||
Accrued liabilities
|
124,100
|
102,770
|
111,226
|
|||||||||
Deferred revenue
|
(262,734
|
)
|
203,232
|
123,142
|
||||||||
Net cash (used in) / provided by operating activities
|
(598,425
|
)
|
3,657,337
|
(444,608
|
)
|
|||||||
Cash flows from investing activities:
|
||||||||||||
Vessel’s improvements
|
(454,585
|
)
|
(56,066
|
)
|
(10,782
|
)
|
||||||
Net cash used in investing activities
|
(454,585
|
)
|
(56,066
|
)
|
(10,782
|
)
|
||||||
Cash flows from financing activities:
|
||||||||||||
Parent investment, net
|
1,253,526
|
(2,441,795
|
)
|
1,960,687
|
||||||||
Repayments of long term debt
|
(550,000
|
)
|
(800,000
|
)
|
(9,015,940
|
)
|
||||||
Proceeds from long term debt
|
-
|
-
|
6,500,000
|
|||||||||
Payments of financing costs
|
-
|
-
|
(175,695
|
)
|
||||||||
Net cash provided by / (used in) financing activities
|
703,526
|
(3,241,795
|
)
|
(730,948
|
)
|
|||||||
Net (decrease) / increase in cash and cash equivalents and restricted cash
|
(349,484
|
)
|
359,476
|
(1,186,338
|
)
|
|||||||
Cash and cash equivalents and restricted cash at beginning of year
|
765,484
|
406,008
|
1,592,346
|
|||||||||
Cash and cash equivalents and restricted cash at end of year
|
416,000
|
765,484
|
406,008
|
|||||||||
SUPPLEMENTAL CASH FLOW INFORMATION
|
||||||||||||
Noncash investing activities: |
||||||||||||
Vessel’s improvements |
(495,668 | ) | (16,252 | ) | - | |||||||
Cash paid during the year:
|
||||||||||||
Interest
|
288,254
|
624,221
|
454,583
|
1.
|
Basis of Presentation and General Information:
|
•
|
Sea Glorius Shipping Co.
|
2.
|
Significant Accounting Policies:
|
(a)
|
Basis of Presentation
|
(b) |
Use of Estimates
|
(c) |
Foreign Currency Translation
|
(d) |
Concentration of Credit Risk
|
(e) |
Cash and Cash Equivalents
|
(f) |
Accounts Receivable Trade
|
(g) |
Inventories
|
(h) |
Vessels
|
(i) |
Vessel Depreciation
|
(j) |
Impairment of Long-Lived Assets (Vessel)
|
(k) |
Dry-Docking and Special Survey Costs
|
(l) |
Commitments and Contingencies
|
(m) |
Revenue Recognition
|
Customer
|
From January 1, 2022 through July 5, 2022
|
2021
|
2020
|
|||||||
A
|
100%
|
100%
|
100%
|
|
||||||
Total
|
100%
|
100%
|
100%
|
|
(n) |
Commissions
|
(o) |
Voyage Expenses
|
(p) |
Repairs and Maintenance
|
(q) |
Finance Costs
|
(r) |
Income Taxes
|
(s) |
Fair Value Measurements
|
○ |
Level 1: Quoted market prices in active markets for identical assets or liabilities;
|
○ |
Level 2: Observable market based inputs or unobservable inputs that are corroborated by market data;
|
○ |
Level 3: Unobservable inputs that are not corroborated by market data.
|
(t) |
Debt Modifications and Extinguishments
|
(u) |
Segment Reporting
|
(v) |
Going Concern
|
3. |
Transactions with Related Parties:
|
4. |
Parent Investment, Net:
|
5. |
Vessel, Net:
|
December 31, 2021
|
||||
Cost:
|
||||
Beginning balance
|
16,925,546
|
|||
- Additions
|
-
|
|||
Ending balance
|
16,925,546
|
|||
Accumulated depreciation:
|
||||
Beginning balance
|
(3,888,510
|
)
|
||
- Additions
|
(756,765
|
)
|
||
Ending balance
|
(4,645,275
|
)
|
||
Net book value
|
12,280,271
|
6. |
Long-Term Debt:
|
December 31, 2021
|
||||
Secured loan facilities
|
5,500,000
|
|||
Less: Deferred financing costs
|
(119,256
|
)
|
||
Total
|
5,380,744
|
|||
Less – current portion
|
(1,177,074
|
)
|
||
Long-term portion
|
4,203,670
|
Year ended December 31,
|
Amount
|
|||
2022
|
1,250,000
|
|||
2023
|
1,400,000
|
|||
2024
|
1,400,000
|
|||
2025
|
1,450,000
|
|||
2026 |
-
|
|||
Total
|
5,500,000
|
7.
|
Financial Instruments:
|
• |
Level 1: Quoted market prices in active markets for identical assets or liabilities;
|
• |
Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data;
|
• |
Level 3: Unobservable inputs that are not corroborated by market data.
|
(a) |
Significant Risks and Uncertainties, including Business and Credit Concentration
|
(b) |
Fair Value of Financial Instruments
|
a)
|
Cash and cash equivalents, accounts receivable trade, net and trade accounts and other payables: the carrying amounts approximate fair value because of the short maturity of these instruments.
|
b) |
Long-term debt: The fair value of fixed interest long-term debt is estimated using prevailing market rates as of the period end. The Subsidiary believes the terms of its fixed interest long-term debt are
similar to those that could be procured as of December 31, 2021, and the carrying value of $5,500,000 is 3.11% lower than the fair market value of $5,670,844.
The fair value of the fixed interest long-term debt has been obtained through Level 2 inputs (interest rate curves) of the fair value hierarchy.
|
8. |
Commitments and Contingencies:
|
9. |
Interest and Finance Costs:
|
From January
1, 2022
through
|
Year ended December 31,
|
|||||||||||
July 5, 2022
|
2021
|
2020
|
||||||||||
Interest on long-term debt
|
|
280,554
|
621,046
|
592,801
|
||||||||
Amortization of debt issuance costs
|
44,308
|
101,289
|
96,300
|
|||||||||
Other, net
|
(1,074
|
)
|
21,352
|
19,344
|
||||||||
Total
|
323,788
|
743,687
|
708,445
|
10. |
Subsequent Events:
|
•
|
the 10th day after public announcement that a person or group has acquired ownership of 10% (15% in the case of a passive institutional
investor) or more of the Company's common stock; or
|
•
|
the 10th business day (or such later date as determined by the Company's board of directors) after a person or group announces a tender or
exchange offer which would result in that person or group holding 10% (15% in the case of a passive institutional investor) or more of the Company's common stock.
|
• |
any person who is the beneficial owner of 15% or more of our issued and outstanding voting stock; or
|
• |
any person who is our affiliate or associate and who held 15% or more of our issued and outstanding voting stock at any time within three years before the date
on which the person's status as an interested shareholder is determined, and the affiliates and associates of such person.
|
• |
Subject to certain exceptions, a business combination includes, among other things:
|
o |
certain mergers or consolidations of us or any direct or indirect majority-owned subsidiary of ours;
|
o |
any sale, lease, exchange, mortgage, pledge, transfer or other disposition of our assets or of any subsidiary of ours having an aggregate market value equal to
10% or more of either the aggregate market value of all of our assets, determined on a combined basis, or the aggregate value of all of our issued and outstanding stock;
|
o |
certain transactions that result in the issuance or transfer by us of any stock of ours to the interested shareholder;
|
o |
any transaction involving us or any of our subsidiaries that has the effect of increasing the proportionate share of any class or series of stock, or
securities convertible into any class or series of stock, of ours or any such subsidiary that is owned directly or indirectly by the interested shareholder or any affiliate or associate of the interested shareholder; and
|
o |
any receipt by the interested shareholder of the benefit directly or indirectly (except proportionately as a shareholder) of any loans, advances, guarantees,
pledges or other financial benefits provided by or through us.
|
• |
These provisions of our amended and restated articles of incorporation do not apply to a business combination if:
|
o |
before a person became an interested shareholder, our board of directors approved either the business combination or the transaction in which the shareholder
became an interested shareholder;
|
o |
upon consummation of the transaction which resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of our
voting stock issued and outstanding at the time the transaction commenced, other than certain excluded shares;
|
o |
at or following the transaction in which the person became an interested shareholder, the business combination is approved by our board of directors and
authorized at an annual or special meeting of shareholders, and not by written consent, by the affirmative vote of the holders of at least two-thirds of our issued and outstanding voting stock that is not owned by the interest shareholder;
|
o |
the shareholder was or became an interested shareholder prior to the consummation of the transactions;
|
o |
a shareholder became an interested shareholder inadvertently and (i) as soon as practicable divested itself of ownership of sufficient shares so that the
shareholder ceased to be an interested shareholder; and (ii) would not, at any time within the three-year period immediately prior to a business combination between us and such shareholder, have been an interested shareholder but for the
inadvertent acquisition of ownership; or
|
o |
the business combination is proposed prior to the consummation or abandonment of and subsequent to the earlier of the public announcement or the notice
required under our amended and restated articles of incorporation which (i) constitutes one of the transactions described in the following sentence; (ii) is with or by a person who either was not an interested shareholder during the previous
three years or who became an interested shareholder with the approval of the board; and (iii) is approved or not opposed by a majority of the members of the board of directors then in office (but not less than one) who were directors prior to
any person becoming an interested shareholder during the previous three years or were recommended for election or elected to succeed such directors by a majority of such directors. The proposed transactions referred to in the preceding
sentence are limited to:
|
(i) |
a merger or consolidation of us (except for a merger in respect of which, pursuant to the BCA, no vote of our shareholders is required);
|
(ii) |
a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), whether as part of a dissolution or
otherwise, of assets of us or of any direct or indirect majority-owned subsidiary of ours (other than to any direct or indirect wholly owned subsidiary or to us) having an aggregate market value equal to 50% or more of either the aggregate
market value of all of our assets determined on a consolidated basis or the aggregate market value of all the issued and outstanding shares; or
|
(iii) |
a proposed tender or exchange offer for 50% or more of our issued and outstanding voting stock.
|
Marshall Islands
|
|
|
Delaware
|
||||||
Shareholder Meetings
|
|||||||||
Held at a time and place as designated in the bylaws.
|
|
|
May be held at such time or place as designated in the certificate of incorporation or the bylaws, or if not so designated, as determined by
the board of directors.
|
||||||
Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the
articles of incorporation or by the bylaws.
|
|
|
Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the
certificate of incorporation or by the bylaws.
|
||||||
May be held in or outside of the Marshall Islands.
|
|
|
May be held in or outside of Delaware.
|
||||||
Notice:
|
|
|
Notice:
|
||||||
|
|
|
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting and, unless it is an annual meeting, indicate that it is being issued by or at the direction of the person calling the meeting.
|
|
|
|
|
|
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the
place, if any, date and hour of the meeting, and the means of remote communication, if any.
|
|
|
|
A copy of the notice of any meeting shall be given personally or sent by mail not less than 15 nor more than 60 days before the meeting.
|
|
|
|
|
|
Written notice shall be given not less than 10 nor more than 60 days before the meeting.
|
Shareholders’ Voting Rights
|
|||||||||
Unless otherwise provided in the articles of incorporation, any action required by the BCA to be taken at a meeting of shareholders may be
taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by all the shareholders entitled to vote with respect to the subject matter thereof, or if the articles of incorporation so
provide, by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
|
|
|
Any action required to be taken by a meeting of shareholders may be taken without a meeting if a consent for such action is in writing and is
signed by shareholders having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
|
||||||
Any person authorized to vote may authorize another person or persons to act for him by proxy.
|
|
|
Any person authorized to vote may authorize another person or persons to act for him by proxy.
|
Marshall Islands
|
|
|
Delaware
|
||||||
Unless otherwise provided in the articles of incorporation or the bylaws, a majority of shares entitled to vote constitutes a quorum. In no
event shall a quorum consist of fewer than one-third of the common shares entitled to vote at a meeting.
|
|
|
For stock corporations, the certificate of incorporation or bylaws may specify the number of shares required to constitute a quorum but in no
event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares entitled to vote shall constitute a quorum.
|
||||||
|
|
When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.
|
|||||||
The articles of incorporation may provide for cumulative voting in the election of directors.
|
|
|
The certificate of incorporation may provide for cumulative voting in the election of directors.
|
||||||
Removal:
|
|
|
Removal:
|
||||||
|
|
|
If the articles of incorporation or the bylaws so provide, any or all of the directors may be removed without cause by vote of the
shareholders.
Any or all of the directors may be removed for cause by vote of the shareholders. The articles of incorporation or the specific provisions of
a bylaw may provide for such removal by action of the board.
|
|
|
|
|
|
Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares entitled to vote except: (1)
unless the certificate of incorporation otherwise provides, in the case of a corporation whose board is classified, shareholders may effect such removal only for cause, or (2) if the corporation has cumulative voting, if less than the entire
board is to be removed, no director may be removed without cause if the votes cast against such director’s removal would be sufficient to elect such director if then cumulatively voted at an election of the entire board of directors, or, if
there be classes of directors, at an election of the class of directors of which such director is a part.
|
Directors
|
|||||||||
Number of board members can be changed by an amendment to the bylaws, by the shareholders, or by action of the board under the specific
provisions of a bylaw.
|
|
|
Number of board members shall be fixed by, or in a manner provided by, the bylaws, unless the certificate of incorporation fixes the number
of directors, in which case a change in the number shall be made only by amendment to the certificate of incorporation.
|
||||||
The board of directors must consist of at least one member.If the board of directors is authorized to change the number of directors, it can
only do so by a majority of the entire board of directors and so long as no decrease in the number shortens the term of any incumbent director.
|
|
|
The board of directors must consist of at least one member.
|
||||||
Dissenter’s Rights of Appraisal
|
|||||||||
Shareholders have a right to dissent from any plan of merger, consolidation or sale of all or substantially all assets not made in the usual
course of business, and receive payment of the fair value of their shares. However, the right of a dissenting shareholder under the BCA to receive payment of the appraised fair value of his shares is not available for the shares of any class
or series of stock, which shares at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of the shareholders to act upon the agreement of merger or consolidation or any sale or exchange
of all or substantially all assets, were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders.
|
|
|
Appraisal rights shall be available for the shares of any class or series of stock of a corporation in a merger or consolidation, subject to
limited exceptions, such as a merger or consolidation of corporations listed on a national securities exchange in which listed shares are the offered consideration or if such shares are held of record by more than 2,000 holders.
|
A holder of any adversely affected shares who does not vote on or
consent in writing to an amendment to the articles of incorporation has the right to dissent and to receive payment for such shares if the
amendment:
|
|
|
|
|
|||||
|
|
Alters or abolishes any preferential right of any outstanding shares having preference; or
|
|
|
|
|
|
|
|
|
|
|
Creates, alters or abolishes any provision or right in respect to the redemption of any outstanding shares.
|
|
|
|
|
|
|
|
|
|
Alters or abolishes any preemptive right of such holder to acquire shares or other securities; or
|
|
|
|
|
|
|
|
|
|
Excludes or limits the right of such holder to vote on any matter, except as such right may be limited by the voting rights given to new
shares then being authorized of any existing or new class.
|
|
|
|
|
|
|
Shareholders’ Derivative Actions
|
|||||||||
An action may be brought in the right of a corporation to procure a judgment in its favor, by a holder of shares or of voting trust
certificates or of a beneficial interest in such shares or certificates. It shall be made to appear that the plaintiff is such a holder at the time the action is brought and that he was such a holder at the time of the transaction of which he
complains, or that his shares or his interest therein devolved upon him by operation of law.
|
|
|
In any derivative suit instituted by a shareholder or a corporation, it shall be averred in the complaint that the plaintiff was a
shareholder of the corporation at the time of the transaction of which he complains or that such shareholder’s stock thereafter devolved upon such shareholder by operation of law.
|
||||||
A complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board of directors
or the reasons for not making such effort. Such action shall not be discontinued, compromised or settled without the approval of the High Court of the Republic of The Marshall Islands.
|
|
|
|
|
|||||
Reasonable expenses including attorneys’ fees may be awarded if the action is successful.
|
|
|
|
|
|
|
|||
A corporation may require a plaintiff bringing a derivative suit to give security for reasonable expenses if the plaintiff owns less than 5%
of any class of stock and the common shares have a value of $50,000 or less.
|
|
|
|
|
|
|
V.SHIPS SHIP MANAGEMENT AGREEMENT
|
Version Number
|
: |
01-2018
|
Page Number
|
: |
1 of 29
|
|
Doc: VSMA
|
Name of Vessel
|
: |
PART
|
SUBJECT MATTER
|
PAGE NO.
|
Part I
|
Vessel Details
|
4
|
Part II
|
Terms of Agreement
|
1.
|
Definitions & Interpretation
|
6
|
|
2.
|
Appointment of Managers
|
6
|
|
3.
|
Basic Services
|
6
|
|
3.1
|
Crewing
|
6 | |
3.2
|
Technical Management
|
8
|
|
3.3
|
Purchasing
|
8
|
|
|
|||
3.5
|
Accounting and Budgeting
|
9
|
|
3.6
|
Operations
|
10
|
|
3.7
|
Information System Software
|
10
|
|
3.8
|
Shipboard Oil Pollution Emergency Plan
|
11
|
|
3.9
|
OPA
|
11
|
|
3.10
|
Assistance with Sale of Vessel
|
11
|
|
3.11
|
Vessel trading in high risk areas
|
11
|
|
4.
|
Other Services
|
12
|
|
5.
|
Managers’ Obligations
|
12
|
|
6.
|
Owners’ Obligations
|
12
|
|
7.
|
Documentation
|
13
|
|
8.
|
Management Fee
|
13 | |
9.
|
Payments and Management of Funds
|
14 | |
10.
|
Managers’ Right to Sub-Contract
|
15 | |
11.
|
Responsibilities
|
16
|
|
11.1
|
Force Majeure
|
16
|
|
11.2
|
Liability to Owners
|
16
|
|
11.3
|
Indemnity – General
|
16
|
|
11.4
|
Indemnity – Tax
|
16 | |
11.5
|
Himalaya
|
16
|
|
|
|||
13.
|
Claims/Disputes
|
17
|
|
14.
|
Auditing, Records
|
17 | |
15.
|
Inspection of Vessel
|
17 | |
16.
|
Compliance with Laws & Regulations
|
17 | |
17.
|
Duration of the Agreement
|
18
|
|
17.1
|
Termination by Notice
|
18
|
|
17.2
|
Termination by Default – Owners
|
18
|
|
17.3
|
Termination by Default – Managers
|
19
|
|
17.4
|
Liquidation
|
19
|
|
17.5
|
Extraordinary Termination
|
19
|
|
18.
|
Confidentiality
|
19
|
|
19.
|
Suspension of Services
|
20
|
|
20.
|
Law and Arbitration
|
20
|
21.
|
Amendments to Agreement
|
20
|
|
22.
|
Time Limit for Claims
|
20
|
|
23.
|
Condition of Vessel
|
20
|
|
24.
|
Use of Associated Companies
|
20 | |
25.
|
Notices
|
21
|
|
26.
|
Staff Loyalty
|
21
|
|
27.
|
Entire Agreement
|
21
|
|
28.
|
Partial Validity
|
21
|
|
29.
|
Non Waiver
|
21
|
Part III
|
Other Services
|
22-23
|
Part IV
|
Fee Schedule
|
25 |
Part V
|
Fleet Details
|
26 |
Part VI
|
Initial Budget
|
27-28
|
DATE OF AGREEMENT:
|
|||
Signature(s) (Owners)
|
Signature(s) (Managers)
|
||
Title:
|
Title:
|
1.
|
Definitions and Interpretation
|
1.1 |
In this Agreement, in addition to terms defined in Part I, save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them.
|
1.2 |
Clause Headings are inserted for convenience and shall be ignored in construing this Agreement; words denoting the singular number shall include the plural number and vice versa; references to Parts are to Parts of this
Agreement; references to Clauses are to Clauses of Part II except where otherwise expressly stated; and references to any enactment include any re-enactments, amendments and extensions thereof.
|
2. |
Appointment of Managers
|
2.1 |
With effect from the date stated in Box 4 of Part I (the “Date of Commencement”) and continuing unless and until terminated as provided herein, the Owners hereby appoint the Managers and the Managers hereby agree to act as the managers
of the Vessel in respect of the Management Services.
|
2.2 |
In performing any of the Management Services the Managers shall, as agents for and on behalf of the Owners, have authority to take such steps as the Managers may from time to time in their reasonable discretion consider to be necessary
to enable them to perform this Agreement in accordance with sound ship management practice.
|
3. |
Basic Services
|
3.1 |
Crewing
|
3.1.1
|
The Managers shall provide suitably qualified crew for the Vessel and its trade as required by the Owners in accordance with current STCW requirements as agents for and on behalf of the Owners, provision
of which includes but is not limited to the following functions:
|
|
(i)
|
select and engage Master, officers and crew (hereinafter collectively referred to as the “Crew”); where the Owners make a complaint about any member of the Crew the Managers will promptly investigate the same and if it proves to be
justified, replace the Crew member concerned as soon as practicable;
|
(ii) |
ensure that the applicable requirements of the law of the flag of the Vessel are satisfied in respect of manning levels, rank, qualification and certification of the Crew, and employment regulations including Crew’s tax, social
insurance, discipline and other requirements;
|
(iii) |
ensure that all members of the Crew have passed a medical examination with a qualified doctor certifying that they are fit for the duties for which they are engaged and are in possession of valid medical certificates which are valid
for the duration of their service onboard the Vessel and issued in accordance with appropriate flag state requirements and P&I Club requirements; in the absence of applicable Flag state requirement medical certificate shall be dated
no more than three (3) months prior to the respective Crew members leaving the country of domicile and maintained for the duration of their service on board the vessel;
|
(iv) |
arrange of transportation of the Crew, including repatriation;
|
(v) |
supervise the efficiency of the Crew and use the Manager’s standard crew appraisal system (written or electronic) and administration of all other Crew matters such as planning for the manning of the Vessel;
|
(vi) |
make payroll arrangements, including settling manning and agency expenses for the manning agents in the Crew’s country of origin and, if applicable, payment of Severance Costs;
|
(vii) |
if requested by the Owners, conducting union negotiations and making agreed payments to unions;
|
(viii) |
verify that the Crew shall have a command of the English of a sufficient standard to enable them to perform their duties safely;
|
(ix) |
operate the Managers’ Drug and Alcohol Policy;
|
(ix) |
arrange Crew training in accordance with the Managers’ policies but always in compliance with STCW (and as provided for in the budget), records of such training being maintained in the Manager’s standard format and will be provided to
the Owners on a monthly basis.
|
3.1.2 |
Crew Claims
|
3.1.3
|
The Owners agree to implement in full the terms and conditions of employment under which the Crew is engaged by the Managers as agent for the Owners. The Owners shall be the employer of the Crew and under
no circumstances shall the Managers be deemed to be the employer of the Crew. If the Vessel is covered by an ITF approved agreement the Owners authorize the Managers to sign the ITF Special Agreement on their behalf and agree to provide
all information necessary for this purpose. The Managers to provide the Owners copies of the contracts of employment upon request.
|
3.1.4
|
The Owners to approve the engagement of any member of the Crew within four (4) working days of receipt from the Managers of reasonable details of the proposed appointee. No response within the stipulated
timeframe indicates tacit approval.
|
3.1.5
|
In the event that any officers or ratings are supplied by the Owners or on their behalf, the Owners shall procure that they comply with the requirements of STCW and MLC. Owners will instruct such officers
and ratings to obey all reasonable orders of the Managers.Any such officers or ratings shall, at the Owners’ cost, be trained in accordance with the Managers training matrix.
|
3.1.6
|
The Managers shall procure that the Crew consent to processing of their personal data for legitimate business purposes. The Owners warrant that personal data of the Crew will be processed in accordance
with the requirements of the Data Protection Act 1998 or any other applicable law or regulation.
|
3.1.7
|
For the purposes of the MLC, the Owners shall be deemed “Shipowner” and under no circumstances whatsoever, notwithstanding the Managers agreeing to carry out specific obligations under the MLC on
behalf of the Owners, shall the Managers be deemed “Shipowner”. It is a condition of this Agreement that the Owners shall provide all Crew with MLC compliant working and living conditions. The Owners shall ensure that, in case there
is any Seafarer Recruitment & Placement Service supplying any member of the Crew to the Vessel or any entity directly employing other persons to work onboard the Vessel, the latter shall provide to the Managers documentary
evidence of MLC compliance issued under the provisions laid down by the applicable ratifying administration or, in the case of a non-ratifying administration, documentary evidence from a Recognised Organisation that is accepted by
the flag administration of the Vessel.
|
|
3.1.8
|
The Owners authorise the Managers to sign contracts of employment with the Crew as agent only for and on behalf of the Owners and/or to procure that a Seafarer Recruitment & Placement Service, in the
country of domicile of a Crew member, signs contracts of employment with such Crew member as agent only for and on behalf of the Owners. The Managers to provide the Owners copies of all the contracts of employment upon request.
|
3.1.9 |
In the event that the Crew payroll is administered by the Managers on behalf of the Owners, notwithstanding any provision herein to the contrary, the Managers do not provide advice on tax or social insurance to which the Crew may be
subject. The Owners shall remain exclusively responsible and liable in respect of tax and social insurance which may be applicable to the Crew including, without limitation, advising the Managers of any tax, social insurance or other
amounts required to be deducted from Crew remuneration.
|
3.2 |
Technical Management
|
(i) |
provision of personnel to supervise the maintenance and general efficiency of the Vessel;
|
(ii) |
arrangement and supervision of drydockings, repairs, modifications to and the upkeep of the Vessel to the standards agreed with the Owners provided that the Managers shall be entitled to incur the necessary expenditure, which is
subject to Owners’ prior approval, to ensure that the Vessel will comply with all requirements and recommendations of the classification society and equipment manufacturers, and with the laws and regulations of the country of registry of
the Vessel and of the places where she trades;
|
(iii) |
arrangement of periodic analysis of the bunker fuel, lubricating oils and chemicals by third parties (the costs being included in the Vessel’s running costs);
|
(iv) |
appointment of surveyors and technical consultants as the Managers may consider from time to time to be necessary, provided they are pre-approved by the Owners;
|
(v) |
visits to the Vessel by superintendents or other staff of the Managers for up to 30 days on board the Vessel in any calendar year (or pro rata for part of a calendar year) excluding the dry-docking period of the vessel
and visits to the Vessel by superintendents or other staff of the Managers in excess of this allowance to be pre-approved in writing by the Owners;
|
(vi)
|
notify and receive prior approval by the Owners of any non-budgeted item of expenditure;
|
(vii)
|
notify and receive prior approval by the Owners if there is an operational need to exceed quarterly budget allowance as attached to this agreement under Part VI.
|
(viii) |
development, implementation and maintenance of an SMS and an SSP.
|
3.3 |
Purchasing
|
3.3.1
|
The Managers shall arrange for the supply of necessary victualling, stores, spares, provisions, lubricating oils and services (including drydock services) for the Vessel for any amount of up to
US$5,000. With respect to the supply of any items of an amount between US$5,000 to US$10,000 the Managers shall request the Owners pre-approval, which should be provided within 48 hours from the Managers’ request. No response within
such stipulated timeframe indicates tacit approval by the Owners. For any purchase above US$10,000, the Managers will advise the details and quotations to the Owners in writing requesting authority to proceed. The Owners have the
right to arrange for any purchasing and shall advise the Managers accordingly. To enable the Managers to arrange such supplies on the most advantageous terms, the Managers shall be entitled to join with other parties in making
arrangements for bulk purchase. The Managers are presently members of MARCAS International Limited (“MARCAS”), a contracting association providing access to commodities and dry-dock services globally (www.marcas.org). MARCAS
negotiates on behalf of its members with selected suppliers the best available price, terms and conditions for the bulk purchase of goods and services for the marine industry with the aim of offering to members and their clients
savings on vessel technical operating costs.
|
3.3.2
|
Details of the suppliers contracted by MARCAS and prices available for the Vessel at the time of supply shall be made available to Owners upon their request. Owners acknowledge that all information
relating to prices is confidential and undertake not to disclose the same to third parties without the prior written consent of the Managers.
|
3.3.3
|
Where MARCAS has negotiated terms and conditions with suppliers of any stores, spares provisions, or lubricating oils (“Goods”) and/or suppliers of services required by the Vessel, then the purchase of
such Goods and services will, unless operational or other circumstances otherwise require, be undertaken with such suppliers on the basis of the terms and conditions negotiated by MARCAS.
|
|
3.3.4
|
MARCAS will where practicable obtain a best price charter from suppliers that the prices for all Goods and services purchased by MARCAS’s members will be the lowest prices available. If the Owners are
able to obtain in good faith, on arms’ length terms, on a true like for like basis (including quality, certification, timing, manufacturer, place of supply, etc., but ignoring taxes and exchange rate fluctuations), the same Goods and/or
services at a lower price than that obtained by MARCAS, the Owners will supply full details to the Managers who will promptly raise the matter with MARCAS and pass on to Owners any refund obtained by MARCAS from the supplier.
|
3.3.5
|
The Owners have received details from the Managers of the business rules and operating procedures adopted by MARCAS, including provisions related to fees that MARCAS will retain as applicable, and agree
to comply with such rules and operating procedures as the same may be amended from time to time.
|
3.3.6
|
The Owners acknowledge that they are aware that prices obtained from suppliers require strict adherence to the payment terms agreed with suppliers (normally 45 days from date of invoice) and any failure
by the Owners to provide the Managers with funds to settle sums due to suppliers on time will (in the absence of a good faith dispute) result in an immediate 2% surcharge. The Managers are hereby expressly authorised to settle such
surcharge charges from any sums held by them on behalf of Owners. The Owners further acknowledge that they are aware if payments to suppliers are regularly made late, or if suppliers are not satisfied with Owners’ credit rating,
suppliers may refuse to supply at the prices and on the terms negotiated by MARCAS.
|
3.3.7
|
The Owners acknowledge that the Managers may be requested by suppliers to disclose details of the beneficial ownership of the Owners and that the Managers may not be able to obtain the most advantageous
terms from such suppliers should the Owners not agree to such disclosure.
|
3.5 |
Accounting and Budgeting
|
3.5.1
|
The Managers shall:
|
(i)
|
maintain records of all costs and expenditure incurred hereunder as well as data necessary or proper for the settlement of accounts between the parties;
|
(ii)
|
establish an accounting system for the Vessel and supply regular monthly reports (within 5 working days from the end of the preceding month) in accordance therewith in the Managers’ standard format or, on
agreement of an additional fee, such other form as may be mutually agreed in writing with the Owners.
|
|
3.5.2
|
The Managers shall present to the Owners annually a budget for the following calendar year in the Managers’ standard format. The budget for the period in 2021 following the date stated in Box 4 of Part I
is set out in Part VI.
|
3.5.3
|
The Owners shall notify the Managers of their acceptance and approval of the annual budget within 14 days of presentation and in the absence of any response the Owners shall be deemed to have accepted the
said budget. In the event that the Owners do not accept an annual budget presented by the Managers within the period aforesaid and that budget is, in the reasonable opinion of the Managers, fair and reasonable, the Managers shall be
entitled to terminate this Agreement by notice in writing, in which event this Agreement shall terminate on the expiry of a period of one (1) month from the date upon which such notice is given.
|
3.5.4
|
The Managers shall produce a monthly comparison between budgeted and actual expenditure of the Vessel in the Managers’ standard format or, on agreement of an additional fee, such other form as may be
mutually agreed in writing accompanied by proper written justification of variances reports. In addition if required by the Owners the Managers shall produce quarterly forecast report on the annual budget.
|
3.5.5
|
This Clause 3.5 is subject to the provisions of Part VI.
|
3.6
|
Operations
|
(i) |
Monitoring voyage instructions and liaising as appropriate with the Owners, the Owners’ brokers and charterers;
|
(ii) |
Appointment of agents; and
|
(iii) |
Arrangement of surveying of cargoes.
|
3.7
|
Information System Software
|
3.7.1
|
The Managers will, subject to the remaining provisions of this Clause 3.7, provide the Owners and the Vessel with the Information System Software to allow information from both the Vessel’s and the
Managers’ office to be accessed directly by the Owners via the “PartnerShip Network” secure website. Financial, technical and operational information relating to the Vessel will be available from both the Vessel and office outputs, with
the ability to “drill down” on accounts. This will provide the Owners with immediate access to the same information available to the Managers and to reports generated for the Owners, with a view to providing improved efficiency and cost
savings to the Owners in his overview of the management of the Vessel.
|
3.7.2
|
Should the Owners have existing software applications on board the Vessel which they wish to retain, the Owners will permit the Managers to carry out an on board audit to assess the suitability,
compatibility with the Information System Software, and any risks or disadvantages associated with the continued use of such applications.
|
3.7.3
|
The main features of the Information System Software at the date of this Agreement are:
|
(i) |
comprehensive management software providing single point of entry to the Vessel incorporating Crew administration, vessel noon reporting, operational and port reporting, defect and deficiency reporting and performance monitoring;
|
(ii) |
a ship to shore and shore to ship e-mail package providing cost efficient communications available to both Owners and their charterers; and
|
(iii) |
a computerised maintenance system including inventory control and automated purchase order handling. (An initial charge, to be agreed with Owners, may be made for the set-up of the maintenance database, depending on the system
currently existing on board the Vessel).
|
3.7.4
|
The costs for the Information System Software are set out in the Fee Schedule, and are included in the Vessel’s running costs, as follows:
|
(i) |
the license fee;
|
(ii) |
remote access from the Owners’ Office through the Managers’ PartnerShip network;
|
(iii) |
maintenance, updates and upgrades;
|
(iv) |
24 hour support;
|
(v) |
provision of anti-virus software and regular upgrades;
|
(vi) |
operational manuals on CD ROM and regular updates;
|
(vii) |
annual remote audit of the Vessel IT systems providing a system health check;
|
(viii) |
user manuals and training of the Crew in the use of the Information System Software; and
|
(ix) |
e-mail on board the Vessel.
|
3.7.5
|
Such costs do not include:
|
(i) |
the costs of appropriate hardware on board the Vessel;
|
(ii) |
travel and other related costs for installation support of the Information System Software on board the Vessel;
|
(iii) |
the set-up cost of the data base for the maintenance system; the Client remains an owner of the PMS data, which can be exported at any given time on request.
|
|
(iv)
|
any specific reports specified by the Owners where new data/specialist reporting is required; and
|
(v)
|
costs incurred pursuant to clause 3.7.2.
|
3.7.6
|
Installation and set-up of the Information System Software will be undertaken on a date agreed between the Managers and the Owners having regard to the Vessel’s schedule and the availability of the
Managers’ personnel.
|
3.7.7
|
Solely for the duration of this Agreement the Managers hereby grant the Owners a personal, non-transferable non-exclusive license to use a single copy of the Information System Software as installed by the
Managers on a single computer on board the Vessel.
|
3.7.8
|
The Information System Software is owned by the Managers or its subsidiaries and is protected by applicable copyright and patent laws. The Owners may not copy the Information System Software (except for
back-up purposes only) or any written materials which accompany it, and may not sell, rent, lease, lend, sub-license, reverse engineer or distribute the Information System Software or such written materials.
|
3.7.9 |
The Managers do not warrant that the Information System Software will meet the Owners’ requirements or that the use or operation of the Information System Software will be uninterrupted or error free.
|
3.8 |
Shipboard Oil Pollution Emergency Plan
|
3.8.1
|
The Managers will prepare and obtain all necessary approvals for a shipboard oil pollution emergency plan (SOPEP) in a form approved by the Marine Environment Protection Committee of the International
Maritime Organisation pursuant to the requirements of Regulation 26 of Annex I of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended (MARPOL
73/78).
|
3.8.2
|
The SOPEP will be written in the English language and will be reviewed and updated from time to time. If required the Managers will arrange for the translation of the SOPEP into another language, the cost
of translation being recoverable in terms of Clause 8.5.
|
3.8.3
|
The Managers will also undertake regular training of the Crew in the use of the SOPEP including drills to ensure that the SOPEP functions as expected and that contact and information details specified are
accurate.
|
3.9 |
OPA
|
3.9.1 |
If instructed by the Owners, the Managers will:
|
(i) |
arrange for the preparation, filing and updating of a contingency Vessel Response Plan in accordance with the requirements of OPA and instruct the Crew in all aspects of the operation of such plan;
|
(ii) |
identify and ensure the availability by contract or otherwise of a Qualified Individual, a Spill Management Team, an Oil Spill Removal Organisation, resources having salvage, firefighting, lightering and, if applicable, dispersant
capabilities, and public relations/media personnel to assist the Owners to deal with the media in the event of discharges of oil.
|
3.9.2
|
The Managers are expressly authorised as agents for the Owners to enter into such arrangements by Contract or otherwise as are required to ensure the availability of the services outlined in Clause 3.8.1.
The Managers are further expressly authorised as agents for the Owners to enter into such other arrangements as may from time to time be necessary to satisfy the requirements of OPA or other Federal or State laws.
|
3.9.3
|
The Owners will pay the fees due to third parties providing the services described above together with costs to the Managers if any. The level of fees will be included in the Vessel’s running costs.
|
3.9.4
|
On termination of this Agreement, the Vessel Response Plan and all documentation will be returned to the Managers at the expense of the Owners, provided such expense does not exceed US$150.
|
3.10 |
Assistance with Sale of Vessel
|
3.11
|
Vessel trading in high risk areas
|
(i) |
Comply in full with the guidance provided by ‘Best Management Practices to Deter Piracy off the Coast of Somalia and in the Arabian Sea Area (BMP)’ as may be revised from time to time and also with any
similar guidance which may be issued for other high risk areas.
|
(ii) |
Monitor daily guidance and updates provided by The Maritime Security Centre – Horn of Africa (MSCHOA) website (www.mschoa.org) as may be revised from time to time and advise the Vessel
accordingly.
|
|
(iii) |
Comply with the Managers’ guidelines for ‘Transiting off the coast of Somalia, the Arabian Sea, Gulf of Aden and Red Sea’ as may be revised from time to time and also with any similar guidance which
may be issued for other high risk areas. The Managers’ guidelines set out their policy of full compliance with BMP and additional guidance and information on Self Protection Measures (SPM’s)
and Citadels or Safe Areas. The Owners will be provided with a copy of the guidelines and costs for SPM’s will be included in the Vessel budget.
|
(iv) |
Where appropriate, ensure the Vessel follows the International Recommended Transit Corridor (IRTC), using the services of an escorted convoy if available or joining a group transit if not.
|
(v) |
Monitor routing recommendations for transiting high risk areas as provided by charterers and insurers and review the same as part of the risk assessment carried out for the transit concerned.
|
(vi)
|
Provide sufficient Self Protection Measures (SPM) appropriate to the vessel type, size and speed with a view to protecting the Crew as far as possible in the event of an attack. To be
determined by the risk assessment required by BMP for the transit concerned and before entering the high risk area.
|
(vii) |
Provide training for the Crew in BMP prior to transiting any high risk area.
|
4. |
Other Services
|
4.1 |
Subject to the terms and conditions herein provided, during the period of this Agreement the Managers shall carry out, as agents for and on behalf of the Owners, such Other Services as shall have been indicated in Part III.
|
4.2 |
Other Services shall be provided in accordance with the terms of the Appendices contained in Part III.
|
5. |
Managers’ Obligations
|
5.1 |
The Managers undertake to use their best endeavours to provide the Basic Services, the Other Services and the Management Services as agents for and on behalf of the Owners in accordance with sound ship management practice and to
protect and promote the interests of the Owners in all matters relating to the provision of Management Services provided however that the Managers in the performance of Management Services shall be entitled to have regard to their overall
responsibility in relation to all vessels which may from time to time be entrusted to their management and in particular, but without prejudice to the generality of the foregoing, the Managers shall be entitled to allocate available
supplies, manpower and services in such manner as in the prevailing circumstances the Managers in their reasonable discretion consider to be fair and reasonable.
|
5.2 |
The Managers shall procure that the requirements of the law of the flag of the Vessel are satisfied and they shall be deemed to be “the Company” as defined by the ISM Code, assuming the responsibility for the operation of the Vessel
and taking over the duties and responsibilities imposed by the ISM Code and by the ISPS Code.
|
5.3 |
The Managers undertake the responsibility to cooperate fully with the Owner and/or any other third party audit firm the Owner chooses with regard to the establishment (design) and the annual testing of the internal controls followed by
the Manager relating to the operations performed during providing the services described herein to the Owners (provision of Type II SSAE16 report included).
|
6. |
Owners’ Obligations
|
6.1 |
The Owners shall pay all sums due to the Managers punctually in accordance with the terms of this Agreement. Time shall be of the essence in respect of the payment of all such sums.
|
6.2 |
The Owners shall report (or where the Owners are not the registered owners of the Vessel procure that the registered owners report) to the flag state administration the details of the Managers as the Company as required to comply with
the ISM Code.
|
6.3 |
The Owners shall procure that throughout the period of this Agreement the Vessel will be insured at the Owners’ expense for not less than sound market value or entered for full gross tonnage, as the case may be, for:
|
(i) |
usual hull and machinery risks (including but not limited to Crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks, diversion expenses and Crew risks);
|
(iii) |
freight, defense and demurrage;
|
(iv) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and Crew risks); and
|
(v) |
in accordance with MLC, establish insurance to compensate Crew, and/or any officers or ratings supplied by the Owners or on their behalf, for monetary loss that they may incur as a result of the failure of a recruitment and placement
service or Owners under the employment agreement, to meet its obligations to them; and
|
|
(vi) |
such other optional insurances as may be agreed by the Owners (such as piracy, kidnap and ransom, loss of hire)
|
6.4 |
The Owners shall procure that all premiums and calls on the Owners’ Insurances are paid by their due date and that the Owners’ Insurances name the Managers and any additional party designated by the Managers as a joint assured for
protection and indemnity risks (including pollution risks) and a named assured on all other policies, with the benefit of full cover. The Owners shall, if applicable, provide the Managers with written evidence thereof to the reasonable
satisfaction of the Managers on or prior to the Date of Commencement and/or on the date on which the Managers notify the Owners of the appointment of any additional party and within seven (7) days of each renewal date. The Owners shall
provide Managers with an appropriate certificate of insurance covering any and all liabilities under the MLC including but not limited to financial security in accordance with regulation 2.5.
|
6.5 |
On termination of this Agreement (howsoever occasioned) or where the Owners make a change in the P&I Club in which the Vessel is entered, the Owners shall procure that the Managers and any additional party designated by the Managers
as a joint or named assured shall cease to be a joint or named assured.
|
6.6 |
Owners are responsible for the payment of any tonnage tax applicable at the country where this agreement will be officially registered.
|
6.7 |
The Owners are responsible to maintain this management agreement for a minimum period of two (2) months.
|
7.
|
Documentation
|
7.1 |
On or prior to the Date of Commencement the Owners will deliver to the Managers:
|
(i) |
copies of the Vessel’s Certificate of Registry,
|
(ii) |
copies of all the Vessel’s trading and classification certificates,
|
(iii)
|
a copy of the Owners’ certificate of incorporation,
|
(iv)
|
full details of any resident registered agent for the registered owner of the Vessel,
|
(v)
|
if applicable, a copy of the bareboat charterparty pursuant to which the Owners are disponent owners of the Vessel,
|
(vi)
|
in the case of a new vessel, the Owners will deliver a copy of the Building Contract and specification, and in the case of a second hand vessel, a copy of the Memorandum of Agreement in terms of which the
Owners acquired the Vessel. The Owners shall be entitled to delete any confidential information (such as price) from the Building Contract or Memorandum of Agreement,
|
(vii)
|
if the Owners are not the registered owners or the bareboat charterer of the Vessel, in addition to the above, evidence satisfactory to the Managers of their beneficial interest in the Vessel and of their
authorisation from the registered owners to enter into this Agreement,
|
(viii)
|
the name and address of the bank through which the Owners will pay funds due under this Agreement.
|
7.2 |
The Owners will on request provide the Managers with full details, in writing, of the registered Owners.
|
7.3 |
The Owners shall be obliged to obtain any required guarantee, bond or other security including, without limitation, the SCAC code and International Carrier Bond as required in order to access the US Bureau of Customs and Border
Protection automated manifest system, as required by 68 Fed Reg. 68139 and as amended, and USCG Certificate of Financial Responsibility for water pollution. The Owners shall also be obliged to obtain any permits, licences or the like
required to be obtained by an operator of a vessel including, without limitation, the US EPA vessel general permit.
|
7.4
|
At the request of the Owners, the Managers will promptly deliver a duly executed technical manager’s undertaking and subordination to the Owners’ lenders’ rights. The Managers further agree that they will
cooperate with the Owners’ lenders in providing such undertaking and subordination letter and any other further documentation which may be required by the Owners’ lenders.
|
8. |
Management Fee
|
8.1 |
The Owners shall pay to the Managers a fee in the amounts stated in the Fee Schedule in respect of the Basic Services and Other Services which shall be payable by equal monthly installments, the first installment being payable on the
Commencement of this Agreement and the payment of the agreed monthly budgeted amounts fifteen (15) days prior to the purchase of the Vessel including payment of the agreed pre-delivery budget and one (1) month fee applicable for the
pre-delivery work in respect of the vessel and subsequent installments being payable monthly in advance and fees for Other Services (if applicable) shall be paid at the rates and times specified in the Fee Schedule.
|
|
8.2 |
If the Managers’ superintendents or other staff spend more than 30 days onboard the Vessel in any calendar year but excluding the dry-docking period of the vessel (or pro rata for part of a calendar year) such days in
excess of 30 on board the Vessel shall be charged at the rate of US$800 per man per day.
|
8.3 |
Where a charterers vetting inspection may be required and a pre-inspection is requested, the costs of such additional services shall be charged to the Vessel’s account.
|
8.4 |
If the Vessel is placed on time charter, any costs incurred in complying with charterers requirements (including, but not limited to, additional reporting requirements and visits to the charterers) will be paid by the Owners.
|
8.5 |
The Managers shall, at no extra cost to the Owners, provide their own office accommodation, office staff and office stationery. The Owners shall reimburse the Managers for all expenses properly incurred under the terms of this
Agreement on behalf of the Owners, including, without prejudice to the foregoing generality, postage and communication expenses (which the Managers shall allocate among all vessels managed by them on a basis which the Managers consider to
be fair and reasonable having regard to the trade of the vessels, the nationality of the Crews and other relevant factors), Crew Support Costs (as included in the Vessel’s running costs), vessel documentation, administrative expenses of
the SOPEP and SSP, travelling expenses and other out of pocket expenses properly and reasonably incurred by the Managers in pursuance of the Management Services. All the above costs will be incurred by the Managers, provided they have
been approved by the Owners.
|
8.6 |
In the event of the termination of this Agreement on the completion of the two (2) months minimum period the fees payable to the Managers according to the provisions of Clause 8.1 shall, save as aftermentioned, be paid for a further
period of two (2) calendar months from the effective date of termination. After that minimum period of the Agreement there will be only one (1) month fees applicable upon termination subject to
agreement that the total value of management fees paid will be at least equivalent to four (4) months.
|
8.7 |
Fees payable to the Managers will be reviewed annually and shall be adjusted as a minimum by reference to the retail price index relevant to the domicile of the Managers. Where Management Services are wholly or partly provided by third
parties, the fees therefor shall be adjusted immediately to take account of increases in the cost of such services. The Managers will, however, use all reasonable endeavours in negotiations with such third parties to minimise such
increases.
|
8.8 |
All fees are exclusive of Value Added Taxes, if any, or other applicable taxes.
|
8.9 |
Save as otherwise provided in this Agreement, all discounts, rebates and commissions obtained by the Managers in the course of the management of the Vessel shall be credited to the Owners.
|
8.10 |
If as a result of collision, accident, emergency, or any other extraordinary circumstances, the Managers’ workload is increased beyond that which the parties could reasonably have anticipated, the Managers shall be entitled to
reasonable additional remuneration having regard to the nature of the incident, the personnel and resources of the Managers deployed, and all other relevant circumstances including insurance recoveries.
|
8.11 |
If the Owners decide to lay-up the Vessel and such lay-up lasts for more than two (2) months, an appropriate reduction of the management fee for the period exceeding the two (2) months until the Owners give written notice to remobilize
the Vessel, shall be mutually agreed between the parties.
|
9. |
Payments and Management of Funds
|
9.1 |
All sums paid to the Managers by or on behalf of the Owners and all moneys collected by the Managers under the terms of this Agreement (other than fees payable by the Owners to the Managers) shall be held to the credit of the Owners in
a separate bank account or accounts which shall be operated by the Managers. The Owners agree to provide to the Managers all information and documentation reasonably required to comply with banking “know your customer” procedures.
|
9.2 |
Where any sums howsoever arising and whether in respect of fees, budgeted expenditure, non-budgeted expenditure, other liabilities (present, future, liquidated or unliquidated) or expenses are owed to the Managers in connection with
the Vessel, the Managers shall be entitled but not obliged at any time or times to apply any sums standing to the credit of the accounts referred to in Clause 9.1 to settle such sums but shall in any event remain payable by the Owners to
the Managers on demand.
|
9.3 |
On or prior to the Date of Commencement the Owners shall provide to the Managers an amount equivalent to the prorated budgeted days’ expenditure from the Date of Commencement to the end of the first month in management. In addition all
pre-delivery expenses are to be funded promptly by the Owners on request from the Managers. The Owners shall provide an amount equivalent to 1/12 of the annual budget for the first full month on or prior to the 1st day of the
first full month of the management period. In subsequent months the Managers shall request amounts for the total anticipated monthly expenditure as laid out in clause 9.6.
|
|
9.4 |
On or prior to the Date of Commencement the Owners shall provide to the Managers a sum of US$[•], which shall be available to the Managers in their sole discretion for payment of any sum due under the terms of this Agreement, which sum
will be held in the Manager’s bank account (“the Float”). The Owners agree that on termination of this Agreement the Managers shall be entitled to retain all or part of the Float in payment of any sums then outstanding under the terms of
this Agreement and, subject thereto, the Managers shall reimburse the balance of the Float to the Owners within two (2) months after the termination of this agreement.
|
9.5 |
The Owners agree that on termination of this agreement payment of all sums outstanding under the terms of the agreement are to be made in advance of the Vessel leaving management. The sum will include without prejudice to the
generality of the foregoing, any amounts due to be paid to suppliers and other third parties (as evidenced, in the absence of manifest error, by an accounts payable listing produced by the Managers) and any outstanding accruals for items
or services invoiced or delivered. The Owners irrevocably undertake to pay forthwith on request from the Managers any other sums which become due after the effective date of termination, but have been incurred during the prosecution of
this Agreement.
|
9.6 |
The Managers shall each month request (by letter, telex, fax or e-mail) from the Owners the funds required to run the Vessel for the ensuing month. Such request will be for the total of the anticipated monthly expenditure, including,
without prejudice to the generality of the foregoing, any sums due to be paid to suppliers and other third parties in the ensuing month (as conclusively evidenced, in the absence of manifest error, by an accounts payable listing produced
by the Managers) and any outstanding accruals for items or services invoiced or delivered. In addition, the Owners shall provide the Managers upon request with any funds which the Managers may reasonably request to cover any unbudgeted,
unexpected, occassional or extraordinary item of expenditure. All such funds shall be received by the Managers within five (5) days after the receipt of such requests and shall be held to the credit of the Owners in the account(s)
referred to in Clause 9.1. The Managers shall be entitled to allocate such funds in such manner as the Managers reasonably determine, and it shall not be open to the Owners to direct the Managers otherwise and under no circumstances shall
any funds received be held on trust by the Managers for any specific purpose. In case there is any surplus of funds, same will be applied on the quarterly budget.
|
9.7 |
Notwithstanding anything contained herein, the Managers shall in no circumstances be required to use or commit their own funds to finance the provision of the Management Services and all payments due shall be made punctually to the
Managers (and not any third party) in accordance with the terms of this Agreement in full without any deduction whatsoever.
|
9.8 |
In addition to the funds referred to above the Owners shall pay and/or reimburse the Managers in respect of all expenses incurred prior to the Date of Commencement including, but not limited to, riding Crew wages, initial Crew
movements, Crew standby expenses, communication and liaison expenses and ITF welfare contributions.
|
10. |
Managers’ Right to Sub-Contract
|
10.1 |
The Managers shall be entitled to procure performance of the Managers’ obligations hereunder by their parent, subsidiary or associated companies or (in the case of Other Services) third parties (hereinafter collectively called the
“Sub-Managers”) in accordance with the following provisions of this Clause 10.1, provided that the Owners have given their prior written consent:
|
(i) |
any such performance of all or any of the Managers’ obligations by the Sub-Managers shall be and constitute full and sufficient performance by the Managers of their obligations hereunder;
|
(ii) |
the Owners hereby agree with the Managers that insofar as the Sub-Managers perform the obligations of the Managers the Sub-Managers shall be entitled to the benefits of the provisions of Clause 11; and
|
(iii) |
any performance of the Managers’ obligations by the Sub-Managers shall be without prejudice to the rights of the Owners hereunder for any failure by the Managers in performance of the Managers’ duties and obligations hereunder and
notwithstanding performance by the Sub-Managers the Managers shall remain responsible to the Owners for performance of their obligations hereunder.
|
10.2 |
The provisions of Clause 10.1 shall remain in force notwithstanding termination of this Agreement.
|
|
11. |
Responsibilities
|
11.1 |
Force Majeure
|
11.1.1
|
Neither the Owners nor the Managers shall be liable for any loss or damage or total or partial failure to perform this Agreement (other than a failure to perform an obligation to pay money) caused wholly or
partly by any circumstance or matter beyond the reasonable control of the relevant party, as the case may be, including (without limiting the generality of the foregoing) acts of God, acts of governmental authorities, fires, strikes,
floods, epidemics, quarantine restrictions, wars, insurrections, riots, violent demonstrations, criminal offences (other than criminal offences attributable to each Party’s employees, agents or sub-contractors), acts and omissions of
civil or military authority or of usurped power, requisition or hire by any governmental or other competent authority, embargoes.
|
11.1.2
|
Where a party seeks to rely upon a force majeure event as described in Clause 11.1.1 it will advise the other party of the force majeure event at the earliest opportunity and also advise that party of the
likely duration of such force majeure situation.
|
11.2 |
Liability to Owners
|
(i)
|
Without prejudice to Clause 11.1, the Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect, (including but not limited to loss of profit
arising out of or in connection with detention of or delay to the Vessel) and howsoever arising in the course of performance of the Management Services unless same is proved to have resulted solely from the negligence, gross negligence
or willful default of the Managers or their employees or agents, or sub-contractors employed by them in connection with the Vessel, in which case (save where loss, damage, delay or expense has resulted from the Managers’ personal act or
omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) the Managers’ liability for each incident or series of incidents giving rise to a claim or
claims shall never exceed a total of ten times the annual management fee payable hereunder for Basic Services.
|
(ii)
|
Notwithstanding anything that may appear to the contrary in this Agreement, the Managers shall not be responsible for any of the acts or omissions of the Crew even if such acts or omissions are negligent,
grossly negligent or willful, except only to the extent that they are shown to have resulted from a failure to discharge their obligations under Clause 3.1 in which case their liability shall be limited in accordance with the terms of
this Clause 11.
|
11.3 |
Indemnity - General
|
11.4
|
Indemnity - tax
|
11.5
|
“Himalaya”
|
|
11.6 |
The provisions of Clause 11 shall remain in force notwithstanding termination of this Agreement.
|
13. |
Claims/Disputes
|
13.1 |
At the request of the Owners, the Managers shall handle and settle all claims arising out of the Management Services hereunder and keep the Owners informed regarding any incident of which the Managers become aware which gives or
may give rise to claims or disputes involving third parties.
|
13.2 |
The Managers shall, as instructed by the Owners, bring or defend actions, suits or proceedings in connection with matters entrusted to the Managers according to this Agreement.
|
13.3 |
The Managers in cooperation with the Owners shall have power to obtain legal or technical or other outside expert advice in relation to the handling and settlement of claims and disputes or all other matters affecting the interests
of the Owners in respect of the Vessel.
|
13.4 |
The Owners shall arrange for the provision of any necessary guarantee bond or other security.
|
13.6 |
The Owners agree to the use of MTI Network for crisis management response and agree to pay any fees additional to the annual retainer of MTI Network (as included in the budget) which may be incurred.
|
14. |
Auditing, Records
|
14.1 |
The Managers shall at all times maintain and keep true and correct accounts and shall make the same available at the Managers’ offices for inspection and auditing by the Owners at such times as may be mutually agreed. The Owners
agree that the Managers shall be entitled to charge for their reasonable costs and expenses should the Owners require hard copies of supplier invoices and related documentation.
|
14.2 |
The Managers shall be entitled to electronically archive all of the Vessels’ records and arrange safe storage of the same, the costs being included in the Vessel’s running costs.
|
14.3 |
All accounting and other records relating the Vessel will be retained by the Managers for a period of two (2) years after the date of termination, for whatever reason, of this Agreement, and thereafter shall be destroyed or, if
electronically archived, expunged unless the Owners request the Managers to deliver such records to them at the Owners’ expense.
|
14.4 |
The Managers may request and the Owners shall, in a timely manner, make available all documentation, information and records reasonably required by the Managers to enable them to perform the Management Services.
|
15. |
Inspection of Vessel
|
16. |
Compliance with Laws and Regulations
|
16.1
|
The parties will not do or permit anything to be done which might cause any breach or infringement of the laws and regulations of the country of registry of the Vessel, and of the places where she
trades, provided always that the Managers’ obligations under this Clause will only relate to matters which the Managers are in fact capable of fulfilling and on the understanding that the Managers receive all necessary co-operation,
information and funding from the Owners.
|
|
16.2 |
The Parties undertake, represent and warrant that on concluding this Agreement neither they, their Crew, nor any of their employees, agents, or sub-contractors is a Sanctioned Person.
|
17. |
Duration of the Agreement
|
17.1 |
Termination by Notice
|
17.2 |
Termination by default - Owners
|
(i) |
The Managers shall be entitled to terminate the Agreement with immediate effect by notice in writing if any moneys requested by the Managers from the Owners, shall not have been received in the Managers’ nominated account within fifteen
(15) calendar days of payment having been requested in writing by the Managers or if the Owners fail to comply to the reasonable satisfaction of the Managers with the requirements of clauses 6.3, 6.4 and 6.5 or if the Vessel is repossessed
by a mortgagee.
|
(ii) |
If the Owners
|
(a) |
otherwise fail materially to meet their obligations hereunder for reasons within their control, or
|
|
(b) |
proceed with employment of or continue to employ the Vessel in the carriage of contraband, blockade running or in an unlawful and/or sanctionable trade, or on a voyage or in a manner which, in the opinion of the Managers, is unduly
hazardous or improper, or potentially unlawful and/or sanctionable or
|
(c) |
fail to comply with any recommendation of the Managers which the Managers consider to be reasonable and non-compliance with which may affect the Managers’ reputation or its obligations under the ISM Code or any other applicable laws or
regulations
|
17.3 |
Termination by Default - Managers
|
17.4 |
Liquidation
|
17.5 |
Extraordinary Termination
|
17.6
|
For the purpose of sub-clause 17.5 hereof:
|
(i) |
the date upon which the Vessel is to be treated as having been sold or otherwise disposed of shall be the date on which the registered owners cease to be registered as owners of the Vessel;
|
(ii) |
the Vessel shall not be deemed to be lost until either she has become an actual total loss or agreement has been reached with her Underwriters in respect of her constructive, compromised or arranged total loss or if such agreement with
her underwriters is not reached it is adjudged by a competent tribunal that a constructive loss of the Vessel has occurred or a Notice of Abandonment is issued to underwriters.
|
17.7
|
The termination of this Agreement shall be without prejudice to all rights accrued due between the parties prior to the date of termination.
|
17.8
|
All outstanding fees and other sums payable by the Owners require to be paid in full on or prior to termination, for whatever reason, of this Agreement. Save where the Agreement is terminated by the
Owners in accordance with Clause 17.3, the Managers shall be paid fees in accordance with Clause 8.6.The Owners shall also pay on demand Severance Costs together with repatriation costs and expenses.
|
18. |
Confidentiality
|
18.1 |
As between the Owners and the Managers, the Owners hereby agree and acknowledge that all title and property in and to the management manuals of the Managers and other written material of the Managers concerning management functions and
activities is vested in the Managers and the Owners agree not to disclose the same to any third party and, on the termination of this Agreement, to return all such manuals and other material to the Managers. For the purposes of this
Clause reference to “the Managers” includes the parent, subsidiary and associated companies of the Managers and any third parties providing Management Services.
|
|
20. |
Law and Arbitration
|
20.1 |
This Agreement shall be governed by English law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 and any amendment thereto or
substitution therefor.
|
20.2 |
The arbitration shall be conducted in accordance with the London Maritime Arbitrators’ (LMAA) Terms current at the time when the arbitration is commenced.
|
20.3 |
Save as aftermentioned, the reference shall be to three arbitrators, one to be appointed by each party and the third by the two so appointed. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send
notice of such appointment to the other party requiring the other party to appoint its arbitrator within fourteen (14) days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints
its own arbitrator and give notice that it has done so within the fourteen (14) days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the fourteen (14) days specified, the party
referring the dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall
be as binding as if he had been appointed by agreement.
|
20.4 |
In cases where neither the claim nor any counterclaim exceeds the sum of US$50,000 (or such other sum as the parties may agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time
when the arbitration proceedings are commenced.
|
20.5
|
Unless otherwise provided for in a separate agreement, the Owners hereby agree that any claim by any company providing services under clause 24 below shall, unless such company elects otherwise, be
subject to English law and any dispute shall be referred to arbitration in accordance with the foregoing provisions of this clause 20.
|
20.6 |
Except to the extent provided for in clauses 10, 11 and 20.5 no third party shall have the right to enforce any term of this Agreement.
|
21. |
Amendments to Agreement
|
22. |
Time Limit for Claims
|
23. |
Condition of Vessel
|
24. |
Use of Associated Companies
|
24.1 |
The Managers hereby disclose to the Owners that they may, in the course of performing Management Services, utilize the services of companies associated with the Managers. Without prejudice to the foregoing generality, associated
companies of the Managers may be used in connection with inter alia travel, insurance, port agency catering and consultancy services. Where companies associated with the Managers provide services in connection with the
above or any other matters, such companies will be entitled to charge and retain for their own benefit usual remuneration for the provision of their services (whether in the form of commission or fees). The Managers will send a list of
the Associated Companies to Owners on or prior to the Date of Commencement.
|
|
24.2 |
The Owners hereby consent to the arrangements set out in Clause 24.1.
|
25. |
Notices
|
25.1 |
Any notice or other communication under or in relation to this Agreement (a “Communication”) may be sent by fax, registered or recorded mail, by personal delivery.
|
25.2 |
The addresses of the parties for service of a Communication shall be as stated in Boxes 5 and 6 respectively of Part I.
|
25.3 |
A Communication shall be deemed to have been delivered and shall take effect:
|
(i) |
in the case of a fax on the day of transmission; and
|
(iii) |
if delivered personally or sent by registered or recorded mail at the time of delivery.
|
26.
|
Staff Loyalty
|
27. |
Entire Agreement
|
27.1 |
This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and (in relation to
such subject matter) supersedes all prior discussions, understandings and agreements between the parties and all prior representations and expressions of opinion by the parties.
|
27.2 |
Each of the parties acknowledges that it is not relying on any statements, warranties, representations or understandings (whether negligently or innocently made) given or made by or on behalf of the other in
relation to the subject matter hereof and that it shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement. The only remedy available shall be for breach of contract under the terms of this
Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
|
28. |
Partial Validity
|
29. |
Non Waiver
|
|
|
1. |
The Managers shall arrange on board safety audit and training which will include the following functions:
|
(i) |
preparation and updating of specialist safety manuals not already included in the SMS;
|
(ii) |
periodic on board safety audit and on board safety training;
|
(iii) |
reporting to the Vessel (via the Managers) on information gained from visits to other vessels and industry forums.
|
2. |
The cost of the foregoing services shall be such sum as is set out in the Fee Schedule and shall be included in the budget agreed with the Owners.
|
3. |
The Managers have entered into sub-contracts with third parties to permit them to supply this service.
|
|
BASIC SERVICES (Clause 3 of Part II)
|
Amount
|
Frequency
|
|
||
Management Fee
|
USD [•]
|
Monthly in advance
|
Information System fees (Shipsure)
|
At cost (already in the budget)
|
Per year
|
Planned maintenance - data base development fee (maximum of 30 chargeable days)
|
At cost (already on the pre-delivery budget)
|
30 days of invoice
|
Crewing: Fixed Cost invoice – Crewing Costs (Part VI)
Other Crew costs (ITF, SEPF, PNO fee etc.)
Management Expenses:
|
As Budget
|
Monthly
Monthly
Monthly
|
Signature(s) (Owners)
|
Signature(s) (Managers)
|
|
Epanastasea Maritime Co.
|
Synergy Denmark A/S
|
|
/s/ Stamatios Tsantanis
|
/s/ Martin Ackermann
|
|
Name: Stamatios Tsantanis
|
Name: Martin Ackermann
|
|
Title: Director
|
Title: Director
|
SECTION 1 – Basis of the Agreement
|
1.
|
Definitions
|
2.
|
Commencement and Appointment
|
3.
|
Authority of the Managers
|
4.
|
Technical Management
|
(a)
|
ensuring that the Vessel complies with the requirements of the law of the Flag State;
|
(b)
|
ensuring compliance with the ISM Code;
|
(c)
|
ensuring compliance with the ISPS Code;
|
(d)
|
ensuring compliance with the MLC Code;
|
(e)
|
providing competent personnel to supervise the maintenance and general efficiency of the Vessel;
|
(f)
|
always in cooperation with Owners and subject to Owners’ prior request and written approval arranging and supervising dry dockings, repairs, alterations,
major modifications, retrofits and the maintenance of the Vessel to the standards agreed with the Owners provided that the Managers shall be entitled to incur the necessary expenditure
which is subject to Owners’ prior approval to ensure that the Vessel will comply with all requirements and recommendations of the classification society, and with the law of the Flag
State and of the places where the Vessel is required to trade as well as any other vetting requirements that may apply or affect Vessel's trading. In relation to Owners’ approval for any costs and
expenses to be incurred under this sub-clause, clause 4.2 shall apply. Managers shall keep the Owners fully informed about the progress of any relevant works and repairs as well as present to Owners any reasonably requested
supporting evidence (including but not limited to invoices, vouchers, reports, certificates). Owners to always have the right to have their own superintendent/staff attending the dry dock. In the event that the quotations that will
be provided by the Managers in relation to the relevant repair shipyard are not competitive, Owners to have the right to appoint a shipyard of their choice;
|
(g)
|
arranging the supply of necessary stores, spares and lubricating oil always in cooperation with the Owners;
|
(h)
|
appointing surveyors and technical consultants as the Managers may consider from time to time to be necessary;
|
(i)
|
in case requested by the Owners and in accordance with the Owners’ instructions, supervising the sale and physical delivery of the Vessel under the sale
agreement. However services under this Sub-clause 4(h) shall not include negotiation of the sale agreement or transfer of ownership of the Vessel;
|
(j)
|
arranging for the supply of provisions unless provided by the Owners in accordance with the budgeted costs of Annex C; and
|
(k)
|
arranging for the sampling and testing of bunkers including the arrangement of periodic analysis of the bunker fuel, lubricating oils and chemicals by third parties
(the costs being included in the Vessel’s running costs).
|
5.
|
Crew Management and Crew Insurances
|
(a)
|
Crew Management
|
SECTION 3 – Obligations
|
8.
|
Managers’ Obligations
|
(a)
|
The Managers undertake to use their best endeavours to provide the Management Services as agents for and on behalf of the Owners in accordance with sound ship management practice and to protect and
promote the interests of the Owners in all matters relating to the provision of services hereunder.
|
(b)
|
Where the Managers are providing technical management services in accordance with Clause 4 (Technical Management), they shall procure that the requirements of the Flag State, Classification Society and vetting requirements are satisfied and they shall agree to be appointed as the Company, assuming the responsibility for the operation of the Vessel and taking over the duties and
responsibilities imposed by the ISM Code, MLC and the ISPS Code, if applicable.
|
(c)
|
The Managers undertake the responsibility to cooperate fully with the Owners and/or any other third party audit firm the Owners choose with regard to the establishment (design)
and the annual testing of the internal controls followed by the Managers relating to the operations performed during providing the services described herein to the Owners (provision of Type II SSAE16 report included, or equivalent
attestation report).
|
(d)
|
At the request of the Owners, the Managers will promptly deliver a duly executed technical manager’s undertaking and subordination to the Owners’ lenders’ rights. The Managers
further agree that they will cooperate with the Owners’ lenders in providing such undertaking and subordination letter and any other further documentation which may be required by the Owners’ lenders
|
9.
|
Owners’ Obligations
|
(a)
|
The Owners shall pay all sums due to the Managers punctually in accordance with the terms of this Agreement. In the event of payment after the due date of any outstanding sums the Manager shall be
entitled to charge interest at the rate stated in Box 13.
|
(b)
|
Where the Managers are providing technical management services in accordance with Clause 4 (Technical Management), the Owners shall:
|
(d)
|
Where the Managers are providing crew management services in accordance with Sub-clause 5(a) the Owners shall:
|
SECTION 4 – Insurance, Budgets, Income, Expenses and Fees
|
10.
|
Insurance Policies
|
(a)
|
at the Owners’ expense, the Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(b)
|
all premiums and calls on the Owners’ Insurances are paid by their due date;
|
(c)
|
the Owners’ Insurances name the Managers and, subject to underwriters’ agreement, any third party designated by the Managers as a joint assured, with full cover. It is understood that in some cases, such
as protection and indemnity, the normal terms for such cover may impose on the Managers and any such third party a liability in respect of premiums or calls arising in connection with the Owners’ Insurances.
|
(d)
|
written evidence is provided, to the reasonable satisfaction of the Managers, of the Owners’ compliance with their obligations under this Clause 10 within a reasonable time of the commencement of the
Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owners’ Insurances.
|
11.
|
Income Collected and Expenses Paid on Behalf of Owners
|
(a)
|
|
(b)
|
All expenses incurred by the Managers under the terms of this Agreement on behalf of the Owners (including expenses as provided in Clause 12(c)) may be debited against the Owners in the account referred
to under Sub- clause 11(a) but shall in any event remain payable by the Owners to the Managers on demand.
|
|
|
12.
|
Management Fee and Expenses
|
(a)
|
The Owners shall pay to the Managers an annual management fee as stated in Box 14 for their services as Managers under this Agreement, which shall be payable in equal monthly instalments in advance, the
first instalment (pro rata if appropriate) being payable on the commencement of this Agreement (see Clause 2 (Commencement and Appointment) and Box 2) and subsequent instalments being payable at the beginning of every calendar month.
The management fee shall be payable to the Managers’ nominated account stated in Box 15.
|
(b)
|
The management fee shall be subject to an annual review and the proposed fee shall be presented in the annual budget in accordance with Sub-clause 13(a).
|
(e)
|
Save as otherwise provided in this Agreement, all discounts and commissions obtained by the Managers in the course of the performance of the Management Services shall be credited to the Owners.
|
13.
|
Budgets and Management of Funds
|
(a)
|
(b)
|
The Owners shall state to the Managers in a timely manner, but in any event within one month of presentation, whether or not they agree to each proposed annual budget. The
parties shall negotiate in good faith and if they fail to agree on the annual budget, including the management fee, either party may terminate this Agreement in accordance with Sub-clause 22(e).
|
(d)
|
The Managers shall at all times maintain and keep true and correct accounts in respect of the Management Services in accordance with the relevant International Financial Reporting Standards or such other
standard as the parties may agree, including records of all costs and expenditure incurred, and produce a comparison between budgeted and actual income and expenditure of the Vessel in such form
|
(e)
|
Notwithstanding anything contained herein, the Managers shall in no circumstances be required to use or commit their own funds to finance the provision of the Management Services.
|
SECTION 5 – Legal, General and Duration of Agreement
|
14.
|
Trading Restrictions
|
15.
|
Replacement
|
16.
|
Managers’ Right to Sub-Contract
|
17.
|
Responsibilities
|
(a)
|
Force Majeure
|
(i)
|
acts of God;
|
(ii)
|
any Government requisition, control, intervention, requirement or interference;
|
(iii)
|
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv)
|
riots, civil commotion, blockades or embargoes;
|
(v)
|
epidemics or pandemics (including but not limited to COVID-19 as declared by the World Health Organization as a global pandemic;
|
(vi)
|
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii)
|
strikes, lockouts or other industrial action, unless limited to the employees (which shall not include the Crew) of the party seeking to invoke force majeure;
|
(viii)
|
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix)
|
any other similar cause beyond the reasonable control of either party.
|
(b)
|
Liability to Owners
|
(c)
|
Indemnity
|
(d)
|
“Himalaya”
|
18.
|
General Administration
|
(a)
|
The Managers shall keep the Owners and, if appropriate, the Company informed in a timely manner of any incident of which the Managers become aware which gives or may give rise to delay to the Vessel or
claims or disputes involving third parties.
|
(b)
|
The Managers shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owners instruct the Managers otherwise. The Managers shall keep the Owners
appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
(c)
|
The Owners may request the Managers to bring or defend other actions, suits or proceedings related to the Management Services, on terms to be agreed.
|
(d)
|
The Managers shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Sub-clauses 18(a) and 18(b) and
disputes and any other matters affecting the interests of the Owners in respect of the Vessel, unless the Owners instruct the Managers otherwise.
|
(e) |
On giving reasonable notice, the Owners may request, and the Managers shall in a timely manner make available, all documentation, information and records in respect of the matters covered by this Agreement either related to mandatory
rules or regulations or other obligations applying to the Owners in respect of the Vessel (including but not limited to STCW 95, the ISM Code and ISPS Code) to the extent permitted by relevant legislation.
|
(f) |
The Owners shall arrange for the provision of any necessary guarantee bond or other security.
|
(g) |
Any costs incurred by the Managers in carrying out their obligations according to this Clause 18 (General Administration) shall be reimbursed by the Owners.
|
19. |
Inspection of Vessel
|
20. |
Compliance with Laws and Regulations
|
21. |
Duration of the Agreement
|
(a) |
This Agreement shall come into effect at the date stated in Box 2 and shall continue until terminated by either party by giving notice to the other; in which event this Agreement shall terminate upon the expiration of the later of
the number of months stated in Box 18 or a period of two (2) months from the date on which such notice is received, unless terminated earlier in accordance with Clause 22 (Termination).
|
(b) |
Where the Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
22. |
Termination
|
(a) |
Owners’ or Managers’ default
|
(b) |
Notwithstanding Sub-clause 22(a):
|
(c) |
Extraordinary Termination
|
(d) |
For the purpose of Sub-clause 22(c) hereof:
|
(e) |
In the event the parties fail to agree the annual budget in accordance with Sub-clause 13(b), or to agree a change of flag in accordance with Sub-clause 9(d)(ii), or to agree to a reduction in the
Management Fee in accordance with Sub-clause 12(d), either party may terminate this Agreement by giving the other party not less than one month’s notice, the result of which will be the expiry of the Agreement at the end of the current
budget period or on expiry of the notice period, whichever is the later.
|
(f) |
This Agreement shall terminate forthwith in the event of an order being made or resolution passed for the winding up, dissolution, liquidation or bankruptcy of either party (otherwise than for the purpose
of reconstruction or amalgamation) or if a receiver or administrator is appointed, or if it suspends payment, ceases to carry on business or makes any special arrangement or composition with its creditors.
|
(g) |
In the event of the termination of this Agreement for any reason other than default by the Managers the management fee payable to the Managers according to the provisions of Clause 12 (Management Fee and Expenses) shall continue to
be payable for a further period of the number of months stated in Box 19 as from the effective date of termination. If Box 19 is left blank then ninety (90) days shall apply.
|
(h) |
In addition, where the Managers provide Crew for the Vessel in accordance with Clause 5(a) (Crew Management):
|
(i) |
On the termination, for whatever reason, of this Agreement, the Managers shall release to the Owners, if so requested, the originals where possible, or otherwise certified copies, of all accounts and all documents specifically
relating to the Vessel and its operation.
|
(j) |
The termination of this Agreement shall be without prejudice to all rights accrued due between the parties prior to the date of termination.
|
23. |
BIMCO Dispute Resolution Clause
|
(a)* |
This Agreement shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in
accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
|
(c)* |
|
(d) |
Notwithstanding Sub-clauses 23(a)
|
(e) |
If Box 21 in Part I is not appropriately filled in, Sub-clause 23(a) of this Clause shall apply.
|
24. |
Notices
|
(a) |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary,
be sent to the address for that other party as set out in Boxes 22 and 23 or as appropriate or to such other address as the other party may designate in writing.
|
(b) |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(i) |
if posted, on the seventh (7th) day after posting;
|
(ii) |
if sent by facsimile or electronically, on the day of transmission; and
|
(iii) |
if delivered by hand, on the day of delivery.
|
25. |
Entire Agreement
|
26. |
Third Party Rights
|
27. |
Partial Validity
|
28. |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
(c) |
Day
|
29. |
BIMCO MLC supplementary clause for SHIPMAN 2009
|
(d) |
The Owners shall procure, whether by instructing the Managers under Clause 7 (Insurance Arrangements) or otherwise, insurance cover or financial security to satisfy the Shipowner’s financial security
obligations under the MLC.
|
30. |
BIMCO designated Entities clause for SHIPMAN 2009
|
(a) |
The provisions of this clause shall apply in relation to any sanction, prohibition or restriction imposed on any specified persons, entities or bodies including the designation of specified vessels
or fleets under United Nations Resolutions or trade or economic sanctions, laws or regulations of the European Union or the United States of America.
|
(b) |
On entering into and throughout the duration of this Agreement:
|
(c) |
If at any time during the performance of this Agreement either party becomes aware that the other party is in breach of warranty as aforesaid, the party not in breach shall comply with the laws and
regulations of any Government to which that party or the Vessel is subject, and follow any orders or directions which may be given by any body acting with powers to compel compliance, including where applicable the Owners’ flag
State. In the absence of any such orders, directions, laws or regulations, the party not in breach may terminate this Agreement forthwith.
|
(d) |
Notwithstanding anything in this Clause to the contrary, Owners and Managers shall not be required to do anything which constitutes a violation of the laws and regulations of any State to which
either of them is subject.
|
(e) |
Notwithstanding any other provision in this Agreement, Owners and Managers shall be liable to indemnify the other party against any and all claims, losses, damage, costs and fines whatsoever
suffered by the other party resulting from any breach of warranty as aforesaid.
|
31. |
Anti-bribery and corruption clause
|
32. |
Retention of records by Managers
|
33. |
Dispute in Vessel expenses
|
34. |
Expenses incurred prior vessel entering into management
|
|
36. |
COVID-19 related costs
|
37. |
BIMCO Cyber Security Clause
|
(a) |
Each Party shall:
|
(i) |
implement appropriate Cyber Security measures and systems and otherwise use reasonable endeavours to maintain its Cyber Security;
|
(ii) |
have in place appropriate plans and procedures to allow it to respond efficiently and effectively to a Cyber Security Incident; and
|
(iii) |
regularly review its Cyber Security arrangements to verify its application in practice and maintain and keep records evidencing the same.
|
(b) |
Each Party shall use reasonable endeavours to ensure that any third party providing services on its behalf in connection with this Contract complies with the terms of subclause (a)(i)-(iii).
|
(c) |
If a Party becomes aware of a Cyber Security Incident which affects or is likely to affect either Party’s Cyber Security, it shall promptly notify the other Party.
|
(i) |
If the Cyber Security Incident is within the Digital Environment of one of the Parties, that Party shall:
|
(d) |
Each Party’s liability for a breach or series of breaches of this Clause shall never exceed a total of USD100,000.00, unless same is proved to have resulted solely from the gross negligence or wilful
misconduct of such Party.
|
38. |
Confidentiality
|
(a) |
is in the Party’s possession prior to its receipt from the other Party or which comes into the Party’s possession outside the terms of this Agreement;
|
(b) |
is in the public domain through no breach by the Party seeking disclosure thereof; or
|
(c) |
is required by any regulatory or governmental authority to be disclosed or which is required or compelled to be disclosed in a judicial, governmental or administrative proceeding including disclosure
of any information as may be necessary to each Party’s auditors, third party managers, legal counsels, potential financiers and as otherwise may be required by the laws or regulations applicable to the Owners and/or the Owners’
parent, including but not limited to any stock exchange and/or securities & exchange commission laws and regulations and if required by any applicable law or regulation, in which event reasonable notice, where practicable, shall
be given to the other Party so as to enable that Party to apply for injunctive relief if required
|
(a) |
The Parties shall each ensure compliance with the DPR in respect of Personal Data, with particular regard to:
|
(i) |
its collection and use;
|
(ii) |
its safeguarding;
|
(iii) |
any transfer to third parties;
|
(iv) |
its retention; and
|
(v) |
the protection of Data Subjects rights.
|
(b) |
The Parties shall have proper notification and response procedures for any Personal Data breach.
|
(c) |
The Parties agree to conduct or submit to audits or inspections in accordance with the DPR.
|
Numbers | Rank |
Nationality
|
||
1
|
Master
|
Indian / Europeans / Filipino
|
||
1
|
Chief Officer
|
Indian / Europeans / Filipino
|
||
1
|
Second Officer
|
Indian / Europeans / Filipino
|
||
1
|
Third Officer
|
Indian / Europeans / Filipino
|
||
1
|
Cadet
|
Indian / Europeans / Filipino
|
||
1
|
Chief Engineer
|
Indian / Europeans / Filipino
|
||
1
|
Second Engineer
|
Indian / Europeans / Filipino
|
||
1
|
Third Engineer
|
Indian / Europeans / Filipino
|
||
1
|
Fourth Engineer
|
Indian / Europeans / Filipino
|
||
1
|
Pumpman
|
Indian / Filipino
|
||
1
|
Bosun
|
Indian / Filipino
|
||
4
|
AB
|
Indian / Filipino
|
||
2
|
OS
|
Indian / Filipino
|
||
1
|
Engine Fitter
|
Indian / Filipino
|
||
3
|
Motorman
|
Indian / Filipino
|
||
1
|
Chief Cook
|
Indian / Filipino
|
||
1
|
2nd Cook
|
Indian / Filipino
|
||
23
|
TOTAL
|
CONTENTS
|
||
CLAUSE | PAGE | |
1.
|
DEFINITIONS
|
2 |
2.
|
APPOINTMENT
|
2 |
3.
|
BASIS OF AGREEMENT
|
3 |
4.
|
COMMERCIAL MANAGEMENT
|
3 |
5.
|
ADDITIONAL SERVICES – CLAIMS
|
4 |
6.
|
PAYMENT & VOYAGE COSTS
|
5 |
7.
|
COMMISSION
|
5 |
8.
|
ACCOUNTS
|
6 |
9.
|
UNDERTAKINGS
|
6 |
10.
|
LIABILITY
|
6 |
11.
|
DURATION OF THE AGREEMENT
|
7 |
12.
|
GENERAL
|
8 |
13.
|
CONFIDENTIALITY
|
9 |
14.
|
NOTICES
|
9 |
15.
|
LAW AND JURISDICTION
|
10 |
SCHEDULE 1
|
13 |
(1) |
SEANERGY MANAGEMENT CORP., a company incorporated under the laws of the Republic of the Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Islands, Majuro, MH96960, Marshall Islands
(the “Company”); and
|
(2) |
ELITE TANKSHIP PTE LTD, a company incorporated under the laws of
Singapore with UEN: 202002125R having its registered office at 8 EU TONG STREET # 14-94. SINGAPORE 059818 (the “Commercial Managers”),
|
(A) |
Pursuant to a Commercial Management Agreement dated July 5, 2022 and entered into between the Company and United Maritime Corporation, of the Republic of the Marshall
Islands ("United”), the Company has agreed to directly or by sub-contracting seek, negotiate and conclude charterparties or other contracts for
the employment of the vessels owned by United’s wholly owned subsidiaries (each a “Shipowning Entity”);
|
(B) |
EPANASTASEA MARITIME CO. (the “Owner”) is the buyer of the vessel named
“TIMBERWOLF” tbr “EPANASTASEA” registered under the MARSHALL ISLANDS flag bearing IMO Number 9319686 (the "Vessel") and shall evidence its agreement to be bound by the terms and conditions of this Agreement by executing a deed of accession to this Agreement in the form of
Schedule 1; and
|
(C) |
The Commercial Manager is involved in the commercial management of vessels and the Company wishes to sub-contract certain commercial management services to the Commercial
Manager as the commercial manager of the Vessel subject to and in accordance with terms of this Agreement.
|
1. |
DEFINITIONS
|
2. |
APPOINTMENT
|
2.1 |
With effect from the date of delivery of the Vessel to the Owner (to be evidenced by the protocol of delivery and acceptance), or such earlier date as may be agreed in
writing between the Parties, and continuing unless and until terminated as provided herein, the Company hereby appoints the Commercial Manager, on an exclusive basis (in relation to the Management Services mentioned herein) and the Commercial
Manager hereby accepts its appointment as exclusive commercial manager to undertake the commercial management and operation of the Vessel, upon the terms and conditions hereinafter set forth.
|
3. |
BASIS OF AGREEMENT
|
3.1 |
Subject to the terms and conditions of this Agreement, during the period of this Agreement, the Commercial Manager shall carry out Management Services in respect of the
Vessel as exclusive agent (in relation to the Management Services) for and on behalf of the Owner.
|
3.2 |
The Commercial Manager shall have authority to take such actions as they may from time to time in their reasonable discretion consider to be necessary to enable them to
perform their obligations under this Agreement in accordance with first class international commercial management practice for vessels similar to the Vessel and the market in which the Vessel operates or will operate and general principles of
good corporate governance and with the care, diligence and skill that a prudent manager of vessels such as the Vessel would reasonably be expected to possess and exercise.
|
4. |
COMMERCIAL MANAGEMENT
|
4.1 |
In consideration of the Commission payable by the Owner to the Commercial Manager pursuant to Clause 7 below, the Commercial Manager shall manage the commercial operation
of the Vessel, as required by the Owner, which includes, but is not limited to, the following functions:
|
(a) |
providing marketing services on behalf of the Owner in respect of the Vessel, including, but not limited to, seeking, negotiating and concluding voyage charters or other
employment contracts in respect of the Vessel provided that if such a contract (or any series of consecutive contracts) exceeds two (2) months, the Commercial Manager shall be required to obtain the prior written consent of the Owner;
|
(b) |
arranging of the invoicing of all hire and/or freight revenues or other monies of whatsoever nature to which the Owner may be entitled arising out of the employment or
otherwise in connection with the Vessel and following-up the timely payment and assisting in the collection of monies payable under the employment contracts to the Owner; all such documents to be provided to the Company and/or the Owner by
the Commercial Manager immediately upon their issuance or receipt, as may be applicable;
|
(c) |
providing voyage estimates and accounts and calculating of hire, freights, demurrage and/or dispatch monies due from or due to the charterers of the Vessel, as well as
voyage actual results and variance reports upon completion of each voyage/employment contract, including laytime calculations as applicable;
|
(d) |
issuing of voyage instructions, monitoring of voyage performance, speed and use of weather routing services, if deemed necessary by the Commercial Manager;
|
(e) |
arranging the scheduling of the Vessel according to the terms of the Vessel's employment and issuing or causing to be issued documents, which may be required under the
charter contracts on behalf of and in the name of the Owner or its charterers, following the Company’s and/or the Owner’s information and approval;
|
(f) |
Buying and supplying bunkers to the vessel on Owner’s behalf and account in compliance with requirements of safe navigation and delivery provisions of voyage charters as
required and as per clause 4.4 below.
|
(g) |
appointing agents and negotiating tug-boat service contracts, provided such appointments are on competitive terms and prices;
|
(h) |
appointing stevedores;
|
(i) |
arranging surveys associated with the commercial operation of the Vessel;
|
(j) |
taking all other steps or actions as may reasonably be required to procure the safe and efficient operation of the Vessel;
|
(k) |
advising the Company and/or the Owner regularly of the trading of the Vessel and liaising with the Owner on the dry-docking and/or scheduled or unscheduled repairs;
|
(l) |
maintaining proper and detailed accounts for the Vessel, in order to ensure proper analysis of the results and all such other records, clean fixtures, charterparties,
statements and supporting vouchers (if any), obtained in connection with the Management Services and making them available to the Company and/or the Owner upon issuance or receipt of such documents, as may be applicable, including, but not
limited to, any of the foregoing which the Commercial Manager deems necessary or advisable in order to comply with any charter or other contract in effect with respect to the Vessel from time to time;
|
(m) |
providing the Company and/or the Owner with all relevant vouchers (i.e. freight invoices, hire invoices, bunkers etc.) required to maintain accurate account entries of the
Owner’s account on a daily basis and records of all revenue, costs and expenditure incurred; and
|
(n) |
preparing monthly reports on the chartering business of the Vessel (to be delivered within 5 calendar days after the end of each calendar month).
|
4.2 |
The Commercial Manager shall maintain at all times during the term of this agreement qualified staff and personnel to procure the performance of the duties and obligations
required to be performed as set forth herein. Notwithstanding the above, the Commercial Manager may sub-contract any of its duties to companies, provided always that, (i) prior written notice is served to the Company and the Owner, and (ii)
notwithstanding any sub-contract, the Commercial Manager shall remain fully liable for the due performance of all of its obligations under this Agreement.
|
4.3 |
In the performance of its obligations under this Agreement, the Commercial Manager shall only be required to spend the amount of time and attention on the Vessel that a
Commercial Manager would reasonably be expected to spend in the due, proper and diligent discharge of its obligations under this Agreement.
|
4.4 |
The Commercial Manager shall arrange at Owners’ account for the provision of bunker fuel of the quality required for the Vessel and her trade. The Commercial Manager shall
use its commercially reasonable endeavors (a) to source bunkers for the Vessel at a price consistent with Platts for the nearest appropriate port and (b) to base the selection of bunker supplier on a minimum of two (2) competitive quotes
provided that such quotes are readily available by credible suppliers extending similar payment terms as the ones obtained by the Commercial Manager and within time operationally permitting obtaining such two quotes. The Commercial Manager
shall provide to the Company and/or the Owner a quarterly report for the Vessel setting out a comparison between the actual bunker costs per ton per stem and the appropriate Platts references pricing per stem (such report to include the date
and location of each stem and relevant Platts location and pricing). If requested by the Company or the Owner, the Commercial Manager shall consult with the Company and/or the Owner on the applicable benchmarking criteria.
|
5. |
ADDITIONAL SERVICES - CLAIMS
|
5.1 |
In continuous cooperation with the Owners and/or the Company, the Managers shall coordinate the handling and settlement of all claims arising out of the Management Services
hereunder and in relation to any loss or damage to the Vessel caused by, or which is the liability of, any third party or where any loss or damage to any third-party vessel is caused by, or is the liability of, the Vessel, such claim shall be
handled also by the Commercial Manager in conjunction with the Company and/or the Owner and the Owner’s P&I association and/or club and/or insurer. The Commercial Manager shall keep the Owner informed regarding any incident of which the
Commercial Manager becomes aware which gives or may give rise to claims or disputes involving third parties and shall provide all appropriate documentation to assist and/or support such claim. The Commercial Manager shall offer the services
of the Commercial Manager’s in-house counsel for legal assistance and advice to the Owner in connection with any other aspect of the Owner’s business provided that in the event of a conflict of interest between the Owner and the Commercial
Manager, the Commercial Manager may decline to provide such legal services to the Owner with respect to such event.
|
5.2 |
The Commercial Manager shall, as instructed by the Owner and/or the Company, bring or defend actions, suits or proceedings in connection with matters entrusted to the
Commercial Manager according to this Agreement.
|
5.3 |
The Commercial Manager, with the consent of the Owner and/or the Company, shall also have the power to appoint protecting agents and to obtain legal or technical or other
outside expert advice in relation to the handling and settlement of claims and disputes or all other matters affecting the interests of the Owner in respect of the Vessel. With respect to any other aspect of the Owner’s business, the
Commercial Manager shall, with the consent of the Owner and/or the Company, retain for and on behalf of the Owner outside lawyers whom the Commercial Manager believes can respond to the Owner’s request for legal assistance should the
Commercial Manager’s in-house legal staff, in its sole discretion, determine that it is not capable of responding properly, and any costs, fees and charges of such outside lawyers shall be paid by the Owner.
|
5.4 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security.
|
5.5 |
The Commercial Manager shall provide the Owner with such reports, reconciliations or financial information and reasonable access to documents for copying and analysis as
may from time to time reasonably the Owner and/or the Company request for the purpose of monitoring the Owner’s financial performance.
|
5.6 |
The Commercial Manager shall provide such other services as the Owner and/or the Company may request and as the Commercial Manager may agree to provide from time to time.
|
5.7 |
Any costs incurred by the Commercial Manager in carrying out their obligations according to Clause 5 shall be reimbursed by the Owner and/or the Company, provided the
Commercial Manager provides relevant supporting invoices and/or evidence and subject to the Owner's and/or the Company’s prior written approval.
|
5.8 |
The settlement of any disputes or claims shall be subject to the Owner’s and/or the Company’s prior written approval.
|
6. |
PAYMENTS AND VOYAGE COSTS
|
6.1 |
Owners will be the beneficiaries of all monies (i.e. freight, deadfreight, demurrage etc/) and will be received directly in Owner’s nominated bank accounts.
|
6.2
|
Owner will directly make payments to vendors for all the voyage related costs in liaison with The Commercial Manager. All such costs shall be subject to the
Owner’s prior approval and supported by all relevant vouchers, invoices, D/As etc.
|
7. |
COMMISSION
|
7.1 |
The Owner shall pay to the Commercial Manager a commission fee equal to [•]% on freight, deadfreight and demurrage arising from or in connection with the employment or
operation of the Vessel during the term of this Agreement (the "Commission") to the below account.
|
7.2 |
The Commission shall be payable by the Owner to the Commercial Manager on within thirty (30) days of receipt by the Owner of the respective earnings from each
employment/contract of the Vessel.
|
7.3 |
The parties agree that any Commission payable to the Commercial Manager in accordance with this Agreement shall remain payable until it is fully paid, notwithstanding the
termination of this Agreement for any reason whatsoever prior to the expiry of such voyage charter.
|
8. |
ACCOUNTS
|
8.1 |
The Owner shall pay (a) the Commission and (b) all expenses approved by the Company or the Owner (such approval not to be unreasonably withheld) and incurred by the
Commercial Manager under the terms of this Agreement to the account of the Commercial Manager specified in writing by the Commercial Manager. Such expenses to be pre-approved by the Company or the Owner and supported by relevant invoices and
vouchers.
|
9. |
UNDERTAKINGS
|
9.1 |
The Commercial Manager undertakes to obtain the Company's or the Owner’s prior written consent before fixing the Vessel for a clean product voyage or before fixing the
Vessel for a dirty product voyage or before operating the Vessel in the territorial waters of any country which is a high risk are and/or where it is generally considered within the shipping industry that her security may be jeopardized or
for which her insurance cover may be jeopardized. The Commercial Manager also undertakes to obtain the Owner’s prior written consent in case of repositioning ballast voyages requiring additional funding to cover the related expenses.
|
9.2 |
The Commercial Manager undertakes, at the request of the Owner, to promptly deliver a duly executed letter of undertaking and subordinating their rights against the Vessel
to the Owner’s lenders’ rights, in customary form. The Commercial Manager further agrees that it will cooperate with the Owner’s lenders in providing such undertaking and any other further documentation which may be reasonably required by the
Owner’s lenders.
|
9.3 |
The Owner undertakes as follows:
|
(a) |
to indemnify and hold the Commercial Manager harmless from all consequences or liabilities in signing bills of lading, issuing letters of indemnity in lieu of bills of
lading or changes of destination from bills of lading or other documents relating to the relevant charterparty for the Vessel or from any irregularity in documents supplied to the Commercial Manager and/or its appointed agent or stevedores or
from complying with all lawful orders given to it and provided thar the Commercial Manager has not acted negligently in signing such documents; and
|
(b) |
to promptly notify the Commercial Manager of the Owner's decision to sell or redeliver the Vessel which shall include details of the delivery laycan, port of delivery or
range of ports of delivery, any pre-delivery inspections and any other information which may affect the operations or employment of the Vessel. Following receipt of such notice, the Commercial Manager shall not contract to employ the Vessel
for periods in excess of the intended delivery laycan of the Vessel as specified in the Owner's notice to the Commercial Manager as aforesaid.
|
10. |
LIABILITY
|
10.1 |
Force Majeure
|
10.2 |
Liability to Owner
|
10.3 |
Indemnity
|
10.4 |
"Himalaya"
|
11. |
DURATION OF THE AGREEMENT
|
11.1 |
Termination by Notice
|
11.2 |
Commercial Manager's Default
|
11.3 |
Owner's Default
|
11.4 |
Extraordinary Termination
|
11.5 |
For the purposes of this Clause:
|
(a) |
the date upon which the Vessel is to be treated as having been sold or otherwise disposed of shall be the date on which the Owner ceases to be registered as Owner or
disponent Owner of the Vessel;
|
(b) |
the Vessel shall not be deemed to be lost unless either she has become an actual total loss or agreement has been reached with her underwriters in respect of her
constructive, compromised or arranged total loss or if such agreement with her underwriters is not reached it is adjudged by a competent tribunal that a constructive loss of the Vessel has occurred.
|
11.6 |
This Agreement shall be terminated by notice from one party to the other forthwith in the event of an order being made or resolution passed for the winding up, dissolution,
liquidation or bankruptcy of either Party (otherwise than for the purpose of reconstruction or amalgamation) or if a receiver is appointed, or if it suspends payment, ceases to carry on business or make any special arrangement or composition
with its creditors.
|
11.7 |
The termination of this Agreement shall be without prejudice to all rights accrued due between the Parties under this Agreement prior to the date of termination.
|
12. |
GENERAL
|
12.1 |
No variation of this Agreement shall be effective unless given in writing and signed by or on behalf of each of the Parties.
|
12.2 |
If any term or provision in this Agreement is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part
shall to that extent be deemed not to form part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected.
|
12.3 |
Neither this Agreement nor any of the rights, obligations or duties arising under this Agreement may be assigned or transferred by any Party without the prior written
consent of the other Party
|
12.4 |
The arrangements contemplated by this Agreement are not intended to and shall not (and shall not be construed so as to) constitute any kind of partnership between the
Parties.
|
12.5 |
No neglect, delay or indulgence on the part of any Party in enforcing any term of this Agreement will be construed as a waiver of that term and no single or partial
exercise by any Party of any rights or remedy under this Agreement will preclude or restrict the further exercise or enforcement of any such right or remedy or any other rights or remedies under this Agreement.
|
12.6 |
This Agreement, and the documents referred to in it, constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the
parties relating to the subject matter of this Agreement.
|
12.7 |
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not
affect any right or remedy of a third party which exists or is available apart from that Act.
|
12.8 |
This Agreement can be executed in counterparts, each of which when executed and delivered is an original and all of which together evidence the same agreement.
|
13. |
CONFIDENTIALITY
|
13.1 |
Each Party shall keep, and shall seek to ensure its officers, employees, agents and consultants keep confidential all information gained by it or them during the term of
this Agreement concerning the business and affairs of the other Party (and the terms of this Agreement) and will not disclose or use the same for any purpose whatsoever except:
|
(a) |
as required by any applicable law; and
|
(b) |
as required or compelled to be disclosed in a judicial, governmental or administrative proceeding including to its professional advisers, its lawyers, legal counsels and
auditors, third party managers, potential financiers and as otherwise may be required by the laws or regulations applicable to the Parties and/or the Parties’ parents, including but not limited to any stock exchange and/or securities &
exchange commission laws and regulations and if required by any applicable law or regulation.
|
14. |
NOTICES
|
14.1 |
Any notice given under this Agreement shall be in writing and should be delivered personally or sent by first class pre-paid post or by EMAIL to the Parties’ respective
addresses set out below in this Agreement or as otherwise notified by them from time to time in accordance with the provisions of this Clause.
|
14.2 |
The address and EMAIL ID’s (and the person for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered in
connect with this Agreement is:
|
14.3
|
In the absence of evidence of earlier receipt, a notice or other communication is deemed given:
|
(a) |
If delivered personally, when left at the address referred to in Clause 14.2 above;
|
(b) |
If sent by post, on the third (3rd) Business Day next following the day of posting it;
|
(c) |
If sent by EMAIL, A positive acknowledgement within 48 hours.
|
15. |
LAW AND JURISDICTION
|
15.1 |
This Agreement and any non-contractual rights arising therefrom shall be governed by English law and any dispute arising out of or in connection with this Agreement shall
be referred to arbitration in London in accordance with the London Maritime Arbitrators Association (LMAA) rules current at the time of commencement of the arbitration.
|
15.2 |
Any referral made pursuant to this Clause 15 shall be to three (3) Arbitrators on the following basis: if a dispute arises between the parties then each shall appoint an
Arbitrator and the two Arbitrators so appointed shall appoint a third.
|
15.3 |
Upon receipt of notice of appointment of an Arbitrator by the first notifying party (who shall therein state that it shall appoint its own arbitrator as sole arbitrator if
the other party does not appoint an Arbitrator in accordance herewith), the second party shall appoint its Arbitrator and give notice of such appointment within fourteen (14) days, failing which the prior notifying party shall be entitled
either to appoint its Arbitrator as Sole Arbitrator or appoint an Arbitrator on behalf of the second party who shall accept such appointment as if it had been made by itself.
|
15.4 |
If a party does not appoint its own Arbitrator and give due notice in accordance with Clause 15.3 the party referring the dispute to arbitration may without requirement for
further notice to such other party failing to so appoint make appointment in accordance with Clause 15.3 and shall advise the other party accordingly and the award of a Sole Arbitrator or panel appointed in accordance with Clause 15.3 shall
be binding on all parties as if appointment had been by agreement.
|
15.5 |
Nothing in this Clause 15 shall prevent the parties agreeing in writing to vary these provisions to provide for appointment of a Sole Arbitrator or to consolidate
arbitration proceedings hereunder where thought appropriate or desirable.
|
15.6 |
In cases where neither the claim nor any counterclaim exceeds the sum of USD 50,000 (or such other sum as the parties may agree) (or such other sum as the parties may
agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
|
15.7 |
Any such Arbitration shall be in accordance with and subject to the Arbitration Act 1996 and any statutory amendment or modification thereto.
|
From: | [ | ] |
To: | [ | ] |
Re: |
Commercial Management Agreement of August 16, 2022 and made between (1) Seanergy Management Corp. (the “Company”) and ELITE TANKSHIP PTE LTD (the
“Commercial Manager”)
|
(a) |
the Company has entered into the Agreement pursuant to the provisions of a Commercial Management Agreement dated July 5, 2022 entered into between United Maritime
Corporation and the Company, to which we have acceded by virtue of a Deed of Accession dated [ ]; and
|
(b) |
we are bound to observe the terms and conditions of the Agreement as if we were a named signatory therein.
|
For and on behalf of
|
|
Epanastasea Maritime Co.
|
|
In the presence of:
|
|
Index |
||
Clause | Page | |
1
|
Definitions and Interpretation
|
3
|
2
|
Conditions Precedent
|
5
|
3
|
Representations
|
6 |
4
|
Amendment and Restatement of Facility Agreement and other Finance Documents
|
6
|
5
|
Further Assurance
|
8 |
6
|
Fees
|
8 |
7
|
Costs and Expenses
|
8 |
8
|
Notices
|
9 |
9
|
Counterparts
|
9 |
10
|
Governing Law
|
9 |
11
|
Enforcement
|
9
|
Schedule 1 Conditions Precedent
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11 |
Execution Pages
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13 |
(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 (the "Borrower")
|
(2) |
UNITED MARITIME CORPORATION, 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")
|
(3) |
KROLL AGENCY SERVICES LIMITED (previously known as Lucid Agency Services Limited) as agent of the other Finance Parties (the "Facility Agent")
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(4) |
KROLL TRUSTEE SERVICES LIMITED (previously known as Lucid Trustee Services Limited) as security agent for the Secured Parties (the "Security Agent")
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(A) |
The Original Lenders agreed to make available to the Borrower and Sea Genius a senior secured term loan facility of (originally) up to US$22,500,000.
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(C) |
The principal amount of the Loan outstanding as at the date of this Agreement is US$4,600,000 (the “Initial Outstanding Loan Amount”).
|
(D) |
The Parties have agreed to amend and restate the Facility Agreement as set out in this Agreement, for the purposes of, inter alia, increasing the Facility by an amount of up to US$9,400,000 so that the aggregate amount of the loan facility to be made available under the Facility Agreement (as amended and
restated by this Agreement) will be an amount equal to the lesser of (i) US$14,000,000 and (ii) 80 per cent. of the Initial Market Value (as defined below).
|
1 |
DEFINITIONS AND INTERPRETATION
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1.1 |
Definitions
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1.2 |
Defined expressions
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1.3 |
Application of construction and interpretation provisions of Facility Agreement
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1.4 |
Agreed forms of new, and supplements to, Finance Documents
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(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent (acting on the instructions of the Majority Lenders)); or
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(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where clause 42.2 (all lender matters)
of the Facility Agreement applies, all the Lenders.
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1.5 |
Designation as a Finance Document
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1.6 |
Authorisation of Facility Agent
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1.7 |
Third party rights
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(a) |
Unless provided to the contrary in a Finance Document, a person who is not a Party has no right under the Third Parties Act to enforce or to enjoy the benefit of any term of this Agreement.
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(b) |
Subject to clause 42.3 (other exceptions) of the Facility Agreement 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.
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2 |
CONDITIONS PRECEDENT
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2.2 |
The Lenders shall send to the Facility Agent all of the documents and other evidence listed in listed in Schedule 1 (Conditions Precedent) which it has received.
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2.4 |
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 Clause 2.3 above, the Finance Parties 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.
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2.5 |
If the Majority Lenders, at their discretion, permit for the Restatement Date to take place before certain of the conditions referred to in Schedule 1 (Conditions
Precedent) are satisfied, the Borrower shall ensure that those conditions are satisfied within 5 Business Days after the Restatement Date (or such later date
as the Facility Agent, acting on the instructions of the Majority Lenders, may agree in writing with the Borrower), which however, shall not be taken as a waiver of the Lenders’ right to require production of all
the documents and evidence referred to in Schedule 1 (Conditions Precedent).
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3 |
REPRESENTATIONS
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3.1 |
Facility Agreement representations
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3.2 |
Finance Document representations
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4 |
AMENDMENT AND RESTATEMENT OF FACILITY AGREEMENT AND OTHER FINANCE DOCUMENTS
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4.1 |
Specific amendments to the Facility Agreement
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4.2 |
Amendments to Finance Documents
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(a) |
the definition of, and references throughout each such Finance Documents to the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to, respectively:
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(i) |
the Amended and Restated Facility Agreement; and
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(ii) |
such other Finance Documents as amended and supplemented by this Clause 4.2 (Amendments to Finance Documents);
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(b) |
the definition of, and references throughout each of the Finance Documents to, the Mortgage shall be construed as if the same referred to that Mortgage as amended and supplemented by the Mortgage Addendum;
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(c) |
by construing references throughout each such Finance Documents to "this Deed", "hereunder" and other like expressions as if the same referred to those Finance Documents as amended and/or supplemented by this Deed;
and
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(d) |
all cross references to clauses in the Facility Agreement will be updated accordingly to reflect the relevant clauses in the Amended and Restated Facility Agreement.
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4.3 |
Obligor Confirmation
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(a) |
confirms its acceptance of the Amended and Restated Facility Agreement;
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(b) |
agrees that it is bound as an Obligor (as defined in the Amended and Restated Facility Agreement);
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(c) |
confirms that the definition of, and references throughout each of the Finance Documents to, the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to the Facility
Agreement and those Finance Documents as amended and restated by this Agreement (and, in the case of the Mortgage, as amended and supplemented by the Mortgage Addendum);
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(d) |
(if it is the Guarantor) confirms that its guarantee and indemnity:
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(i) |
continues to have full force and effect on the terms of the Amended and Restated Facility Agreement; and
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(ii) |
extends to the obligations of the relevant Obligors under the Finance Documents as amended and restated or supplemented by this Agreement (and, in the case of the Mortgage, as amended and supplemented by the
Mortgage Addendum).
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4.4 |
Security confirmation
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(a) |
any Security created by it under the Finance Documents extends to the obligations of the relevant Transaction Obligors under the Finance Documents as amended and restated or supplemented by this Agreement and as may
be further amended and supplemented from time to time, and in the case of the Mortgage as amended and supplemented by the Mortgage Addendum;
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(b) |
the obligations of the relevant Transaction Obligors under the Amended and Restated Facility Agreement and the other Finance Documents (as amended and supplemented by this Agreement and as may be further amended and
supplemented from time to time and in the case of the Mortgage as amended and supplemented by the Mortgage Addendum) are included in the Secured Liabilities (as defined in the Security Documents to which it is a party); and
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(c) |
the Security created under the Finance Documents continues in full force and effect on the terms of the respective Finance Documents (as amended and supplemented by this Agreement and as may be further amended and
supplemented from time to time and in the case of the Mortgage as amended and supplemented by the Mortgage Addendum).
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4.5 |
Finance Documents to remain in full force and effect
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(a) |
in the case of the Facility Agreement as amended and restated pursuant to Clause 4.1 (Specific amendments to the Facility Agreement);
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(b) |
in the case of the other Finance Documents (other than the Mortgage, which is amended and supplemented by the Mortgage Addendum) as amended pursuant to Clause 4.2 (Amendments to
Finance Documents);
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(c) |
the Facility Agreement and the applicable provisions of this Agreement will be read and construed as one document;
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(d) |
the other Finance Documents and the applicable provisions of this Agreement will be read and construed as one document; and
|
(e) |
except to the extent expressly waived by the amendments effected by this Agreement, no waiver is given by this Agreement and the Lenders expressly reserve all their rights and remedies in respect of any breach of or
other Default under the Finance Documents.
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5 |
FURTHER ASSURANCE
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6 |
FEES
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(a) |
to the Facility Agent (for the account of each Lender pro rata to their Commitments) a non-refundable deferred fee in the amount of $130,000, corresponding to 2 per cent. of the Maximum Tranche A Amount; and
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(b) |
to the Facility Agent (for its own account) a non-refundable amendment fee in the amount of $2,500.
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7 |
COSTS AND EXPENSES
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8 |
NOTICES
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9 |
COUNTERPARTS
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10 |
GOVERNING LAW
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11 |
ENFORCEMENT
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11.1 |
Jurisdiction
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(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or
any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
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(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.
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(c) |
To the extent allowed by law, this Clause 11.1 (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.
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11.2 |
Service of process
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(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 Shoreside Agents Ltd, presently at 5 St Helen’s Place, London EC3A 6AB (T: +44 (0)20 3771 8869, M: + 44 (0) 7591 440086, Fax: +44 (0)20 3771 8870, attention: Andrew Johnson)
as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
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(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
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(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within five
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.
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1 |
Obligors
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1.1 |
A copy of the constitutional documents of each Transaction Obligor.
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1.2 |
A copy of a resolution of the board of directors of each Transaction Obligor:
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(a) |
approving the terms of, and the transactions contemplated by, the New Documents to which it is a party and resolving that it execute the New Documents to which it is a party;
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(b) |
authorising a specified person or persons to execute the New Documents to which it is a party on its behalf; and
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(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation Request) to be signed and/or despatched by it under, or in
connection with, the New Documents to which it is a party.
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1.3 |
An original of the power of attorney of any Transaction Obligor authorising a specified person or persons to execute the New 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.
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1.5 |
A copy of a resolution signed by the Guarantor as the holder of all the issued shares in the Borrower, approving the terms of, and the transactions contemplated by, the New Documents to which the Borrower is a
party.
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1.6 |
A copy of a certificate of each Obligor (signed by an officer) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments (as defined in the Amended and Restated Facility Agreement) would not
cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
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1.7 |
A copy of 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 copy of a certificate of an officer of each Transaction Obligor certifying that each copy document relating to it specified in this Schedule 1 (Conditions Precedent) is
correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
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2 |
New Documents and Security
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2.1 |
A duly executed original of this Agreement.
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2.2 |
A duly executed original of the Mortgage Addendum together with documentary evidence that the Mortgage Addendum has been duly registered as a valid addendum to the Mortgage in accordance with the laws of the
jurisdiction of the Approved Flag of the Ship.
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2.3 |
A duly executed original of each Supplemental Security Document (and of each document to be delivered under each of them).
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2.4 |
A duly executed original of the Second Priority Account Security.
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2.5 |
A duly executed original of the Manager’s Undertaking from each of the Approved Technical Manager and the Approved Crew Manager (as each of these terms is defined in the Amended and Restated Facility Agreement).
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3 |
Legal opinions
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4 |
Other documents and evidence
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4.1 |
Evidence that any process agent referred to in Clause 11.2 (Service of process) has accepted its appointment.
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4.2 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry
into and performance of the transactions contemplated by the New Documents or for the validity and enforceability of any Finance Document as amended, restated and/or supplemented by this Agreement.
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4.3 |
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 6 (Fees) and Clause 7 (Costs and expenses)
have been paid or will be paid by the Restatement Date.
|
4.4 |
Evidence that all interest accrued and outstanding on the Initial Outstanding Loan Amount until the Utilisation Date of the Upsize Advance (as such term is defined in the Amended and Restated Facility Agreement)
has been paid or will be paid by the Restatement Date.
|
4.5 |
Copies of each of the Technical Management Agreement, the Commercial Management Agreement and the Crew Management Agreement (as each of these terms is defined in the Amended and Restated Facility Agreement), each in
form acceptable to the Facility Agent acting with the authorisation of all of the Lenders.
|
4.6 |
Copies of the Approved Technical Manager's Document of Compliance and of the Ship's Safety Management Certificate (together with any other details of the applicable Safety Management System which the Facility Agent
requires (acting on the instructions of the Majority Lenders)) and of any other documents required under the ISM Code and the ISPS Code in relation to the Ship including without limitation an ISSC.
|
4.7 |
A valuation or, as the case may be, valuations of the Ship stated to be for the purposes of the Facility Agreement and dated not earlier than 30 days prior to the Restatement Date as the Lenders will approve from an
Approved Valuer to determine the Initial Market Value of the Ship.
|
EXECUTED AS A DEED | ) | |
by SEA GLORIUS SHIPPING CO. | ) | |
acting by Stavros Gyftakis | ) | /s/ Stavros Gyftakis |
being an attorney-in-fact | ) | |
in the presence of: |
) | |
Witness' signature: | ) | |
Witness' name: Maria Kalothetou | ) | /s/ Maria Kalothetou |
Witness' address: |
) | 154 Vouliagmenis Avenue |
16674 Glyfada, Greece |
EXECUTED AS A DEED | ) | |
by UNITED MARITIME CORPORATION | ) | |
acting by Stavros Gyftakis | ) | /s/ Stavros Gyftakis |
being an attorney-in-fact | ) | |
in the presence of: |
) | |
Witness' signature: |
) | |
Witness' name: Maria Kalothetou | ) | /s/ Maria Kalothetou |
Witness' address: | ) | 154 Vouliagmenis Avenue |
16674 Glyfada, Greece |
EXECUTED AS A DEED | ) | |
by KROLL AGENCY SERVICES LIMITED | ) | |
(previously Lucid Agency | ) | |
Services Limited) | ) | |
acting by Eliza-Elisavet Makri | ) | /s/ Eliza-Elisavet Makri |
being an attorney-in-fact |
) | |
in the presence of: |
) | |
Witness' signature: |
) | |
Witness' name: Orfeas Asimopoulos |
) | /s/ Orfeas Asimopoulos |
Witness' address: | ) | ATTORNEY-AT-LAW |
WATSON FARLEY & WILLIAMS GREECE
348 SYNGROU AVENUE
17674 KALLITHEA
ATHENS GREECE
|
EXECUTED AS A DEED | ) | |
by KROLL TRUSTEE SERVICES LIMITED | ) | |
(previously Lucid Trustee |
) | |
Services Limited) |
) | |
acting by Eliza-Elisavet Makri |
) | /s/ Eliza-Elisavet Makri |
being an attorney-in-fact |
) | |
in the presence of: |
) | |
Witness' signature: |
) | |
Witness' name: Orfeas Asimakopoulos |
) | /s/ Orfeas Asimakopoulos |
Witness' address: |
) | ATTORNEY-AT-LAW |
WATSON FARLEY & WILLIAMS GREECE
348 SYNGROU AVENUE
17674 KALLITHEA
ATHENS GREECE
|
(i)
|
(a)
|
the First Prepayment Amount shall be applied against the Balloon; and
|
(b) |
the Second Prepayment Amount shall be applied equally against the first and the second Repayment Instalments, respectively, reducing each such Repayment Instalment to
$500,000.
|
/s/ Stavros Gyftakis
|
|
Name: | |
Title: Director | |
for and on behalf of
|
|
UNITED MARITIME CORPORATION
|
|
as Guarantor
|
/s/ Stavros Gyftakis
|
|
Name: | |
Title: Director
|
|
for and on behalf of
|
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SEA GLORIUS SHIPPING CO.
|
|
as Borrower
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/s/ STEFANOS-MAX KONSTANTINIDIS
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|
Name:
|
|
Title: Attorney-in-fact
|
|
for and on behalf of
|
|
KROLL AGENCY SERVICES LIMITED
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as Facility Agent
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(on behalf of all Finance Parties)
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Dated: 4 November 2022
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Clause
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Page
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|
Section 1 Interpretation
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2
|
|
1
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Definitions and Interpretation
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2
|
Section 2 The Facility
|
28 | |
2
|
The Facility
|
28 |
3
|
Purpose
|
28 |
4
|
Conditions of Utilisation
|
29 |
Section 3 Utilisation
|
30 | |
5
|
Utilisation
|
30 |
Section 4 Repayment, Prepayment and Cancellation
|
32 | |
6
|
Repayment
|
32 |
7
|
Prepayment and Cancellation
|
32 |
Section 5 Costs of Utilisation
|
36 | |
8
|
Interest
|
36 |
9
|
Interest Periods
|
36 |
10
|
Fees
|
37 |
Section 6 Additional Payment Obligations
|
38 | |
11
|
Tax Gross Up and Indemnities
|
38 |
12
|
Increased Costs
|
42 |
13
|
Other Indemnities
|
44 |
14
|
Mitigation by the Finance Parties
|
47 |
15
|
Costs and Expenses
|
47 |
Section 7 Guarantee and Joint and Several Liability of the Borrowers
|
49 | |
16
|
Guarantee and Indemnity
|
49 |
17
|
Joint and Several Liability of the Borrowers
|
52 |
Section 8 Representations, Undertakings and Events of Default
|
54 | |
18
|
Representations
|
54 |
19
|
Most Favoured Nation
|
61 |
20
|
Information Undertakings
|
61 |
21
|
Purchase Agreement and MOA Undertakings
|
65 |
22
|
General Undertakings
|
66 |
23
|
Insurance Undertakings
|
72 |
24
|
Ship Undertakings
|
78 |
25
|
Valuations
|
83 |
26
|
Earnings Account and Application of Earnings
|
84 |
27
|
Events of Default
|
86 |
Section 9 Changes to Parties
|
91 | |
28
|
Changes to the Lenders
|
91 |
29
|
Changes to the Transaction Obligors
|
96 |
Section 10 The Finance Parties
|
97 | |
30
|
The Facility Agent
|
97 |
31
|
Amounts paid in error
|
108 |
32
|
The Security Agent
|
108 |
33
|
Conduct of Business by the Finance Parties
|
124 |
34
|
Sharing among the Finance Parties
|
125 |
Section 11 Administration
|
127 | |
35
|
Payment Mechanics
|
127 |
36
|
Set-Off
|
130 |
37
|
Bail-In
|
130 |
38
|
Notices
|
130 |
39
|
Calculations and Certificates
|
133 |
40
|
Partial Invalidity
|
133 |
41
|
Remedies and Waivers
|
133
|
42
|
Settlement or Discharge Conditional
|
133 |
43
|
Irrevocable Payment
|
133 |
44
|
Amendments and Waivers
|
134 |
45
|
Confidential Information
|
136 |
46
|
Counterparts
|
139 |
Section 12 Governing Law and Enforcement
|
140 | |
47
|
Governing Law
|
140 |
48
|
Enforcement
|
140 |
49
|
Patriot Act Notice
|
140 |
Schedule 1 The Parties
|
141 | |
Part A The Obligors
|
141 | |
Part B The Original Lenders
|
143 | |
Part C The Servicing Parties
|
146 | |
Schedule 2 Conditions Precedent
|
147 | |
Part A Conditions precedent to Initial Utilisation Request
|
147 | |
Part B Conditions precedent to Utilisation
|
149 | |
Schedule 3 Requests
|
151 | |
Utilisation Request
|
151 | |
Schedule 4 Form of Transfer Certificate
|
153 | |
Schedule 5 Form of Assignment Agreement
|
155 | |
Schedule 6 Details of the Ships
|
158 | |
Schedule 7 Timetables
|
159 |
Execution Pages
|
160 |
(1) |
PAROSEA 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) |
BLUESEA 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) |
MINOANSEA MARITIME 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 C")
|
(4) |
EPANASTASEA MARITIME 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 D")
|
(5) |
UNITED MARITIME CORPORATION, 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")
|
(6) |
THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as lenders (the "Original
Lenders")
|
(7) |
KROLL AGENCY SERVICES LIMITED as agent of the other Finance Parties (the "Facility Agent")
|
(8) |
KROLL TRUSTEE SERVICES LIMITED as security agent for the Secured Parties (the "Security Agent")
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
any Approved Pool Manager;
|
(b) |
Seanergy Management Corp.;
|
(c) |
Elite Tankship Pte Ltd;
|
(d) |
Signal Maritime Services Ltd;
|
(e) |
a direct or indirect wholly owned Subsidiary of the Guarantor; or
|
(f) |
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, such
approval not to be unreasonably withheld or delayed.
|
(a) |
Maersk Tankers Afra K/S;
|
(b) |
Signal Maritime Aframax Pool Ltd; or
|
(c) |
any other company which the Facility Agent (acting on the instructions of the Lenders) may approve from time to time as the pool manager of a Ship.
|
(a) |
Executive Ship Management (P) Limited;
|
(b) |
V. Ships UK Limited;
|
(c) |
Synergy Denmark A/S;
|
(d) |
OSM Ship Management B AS;
|
(e) |
a direct or indirect wholly owned Subsidiary of the Guarantor; or
|
(f) |
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, such approval not to be unreasonably withheld or delayed.
|
(a) |
the amount of its participation in any outstanding Utilisation under that Tranche; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made under that Tranche on or before the proposed Utilisation Date.
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from
time to time;
|
(b) |
in relation to any state other than such an EEA Member Country and 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; and
|
(c) |
in relation to the United Kingdom, the UK Bail-In Legislation.
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part B of Schedule 1 (The Parties) and the amount of any other
Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a) |
any Transaction Obligor or any of its advisers; or
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Transaction Obligor or any of its advisers,
|
(i) |
information that:
|
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 45 (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.
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or
otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties or, if applicable, any Transaction Obligor; or
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party or, if applicable, any Transaction Obligor preventing
that, or any other, Party or, if applicable, any Transaction Obligor:
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
(ii) |
from communicating with other Parties or, if applicable, any Transaction Obligor in accordance with the terms of the Finance Documents,
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders), pooled or shared with any other person:
|
(i) |
all freight, hire and passage moneys including, without limitation, all moneys payable under, arising out of or in connection with a Charter or a Charter Guarantee;
|
(ii) |
the proceeds of the exercise of any lien on sub-freights;
|
(iii) |
compensation payable to a Borrower or the Security Agent in the event of requisition of that Ship for hire or use;
|
(iv) |
remuneration for salvage and towage services;
|
(v) |
demurrage and detention moneys;
|
(vi) |
without prejudice to the generality of sub-paragraph (i) above, damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship;
|
(vii) |
all moneys which are at any time payable under any Insurances in relation to loss of hire;
|
(viii) |
all monies which are at any time payable to a Borrower in relation to general average contribution; and
|
(b) |
if and whenever that Ship is employed on terms whereby any moneys falling within sub-paragraphs (i) to (viii) of paragraph (a) above are pooled or shared with any other person (including, without limitation, such
Ship's employment under the relevant Approved Charter), that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship.
|
(a) |
an account in the name of that Borrower with the Account Bank designated "USD 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.
|
a) |
any release, emission, spill or discharge of Environmentally Sensitive Material whether within a Ship from a Ship into any other vessel or into or upon the air, water, 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, water, land or soils (including the seabed) or surface water from a vessel other than a
Ship and which involves a collision between a Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to be arrested, attached, detained
or injuncted and/or a Ship and/or any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water otherwise than from a
Ship and in connection with which a Ship is actually or potentially liable to be arrested and/or where any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or
administrative action, other than in accordance with an Environmental Approval.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or
regulation referred to in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation
authority in any other jurisdiction.
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; 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.
|
(a) |
this Agreement;
|
(b) |
any Utilisation Request;
|
(c) |
any Security Document;
|
(d) |
any Subordination Agreement;
|
(e) |
any Fee Letter;
|
(f) |
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or
|
(g) |
any other document designated as such by the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrowers.
|
(a) |
moneys borrowed;
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d) |
the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to
market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
|
(h) |
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
(i) |
the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
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.
|
(a) |
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in relation to that Ship, its Earnings or otherwise in relation to that
Ship whether before, on or after the date of this Agreement; and
|
(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium and any rights in relation to any claim whether or not the relevant
policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
(a) |
any Original Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 28 (Changes to the Lenders),
|
(a) |
the aggregate Market Value of the Ships; plus
|
(b) |
the credit balance held on the Earnings Accounts,
|
(a) |
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66⅔ per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or
Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66⅔ per cent. of the Loan immediately before such repayment.
|
(a) |
as at a date not more than 30 days previously;
|
(b) |
by an Approved Valuer (appointed by the Borrowers 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
|
(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.
|
(d) |
in relation to the purchase of Ship A, the memorandum of agreement dated July 11, 2022, as amended by Addendum No. 1 dated 2 August 2022, as from time to time further amended or supplemented, and made between (i) Borrower A as buyer and (ii) the relevant Seller;
|
(e) |
in relation to the purchase of Ship B, the memorandum of agreement dated July 11, 2022, as amended by Addendum No. 1 dated 2 August 2022, as from time to time further amended or supplemented, and made between (i) Borrower B as buyer and (ii) the relevant Seller;
|
(f) |
in relation to the purchase of Ship C, the memorandum of agreement dated July 11, 2022, as amended by Addendum No. 1 dated 2 August 2022, as from time to time further amended or supplemented, and made between (i) Borrower C as buyer and (ii) the relevant Seller; and
|
(g) |
in relation to the purchase of Ship D, the memorandum of agreement dated July 11, 2022, as amended by Addendum No. 1 dated 2 August 2022, as from time to time further amended or supplemented, and made between (i) Borrower D as buyer and (ii) the relevant Seller.
|
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or
if there is not, on the immediately preceding Business Day;
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
(a) |
which is a time, voyage or consecutive voyage charter;
|
(b) |
the duration of which does not exceed 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,
|
(a) |
any Financial Indebtedness incurred under the Finance Documents; and
|
(b) |
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents in a manner satisfactory to the Facility Agent (acting on the instructions of the Majority
Lenders).
|
(a) |
Security created by the Finance Documents;
|
(b) |
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;
|
(c) |
liens for unpaid master's and crew's wages in accordance with first class ship ownership and management practice;
|
(d) |
liens for salvage;
|
(e) |
liens for master's disbursements incurred in the ordinary course of trading;
|
(f) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation (including any lien in connection with the Commercial Management Agreement involving Signal Maritime Services Ltd as
commercial manager to the extent that such lien is less than or equal to $150,000), repair or maintenance of a Ship and not as a result of any default or omission by the relevant Borrower, provided such liens do not secure amounts more than
30 days overdue (unless the overdue amount is being contested in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 24.15 (Restrictions on chartering,
appointment of managers etc.);
|
(g) |
Security arising by operation of law in respect of Taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves
have been made; and
|
(h) |
any Security created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where a Borrower is actively prosecuting or defending such proceedings or arbitration
in good faith.
|
(a) |
in relation to Ship A, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 20,250,000;
|
(b) |
in relation to Ship B, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 20,250,000;
|
(c) |
in relation to Ship C, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 19,000,000;
|
(d) |
in relation to Ship D, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 20,000,000;
|
(a) |
its Original Jurisdiction;
|
(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is situated;
|
(c) |
any jurisdiction where it conducts its business; and
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a) |
any expropriation, confiscation, requisition (excluding a requisition for hire or use which does not involve a requisition for title) or acquisition of that Ship, whether for full consideration, a consideration
less than its proper value, a nominal consideration or without any consideration, which is effected (whether de jure or de facto) by any government or
official authority or by any person or persons claiming to be or to represent a government or official authority; and
|
(b) |
any capture or seizure of that Ship (including any hijacking or theft) by any person whatsoever.
|
(a) |
imposed by law or regulation of the United Kingdom, the Council of the European Union, the European Union, the member states of the European Union, the United Nations or its Security Council or the United States
of America regardless of whether the same is or is not binding on any Transaction Obligor; or
|
(b) |
otherwise imposed by any law or regulation binding on a Transaction Obligor or to which a Transaction Obligor is subject (which shall include without limitation, any extra-territorial sanctions imposed by law or
regulation of the United States of America).
|
(a) |
any Shares Security;
|
(b) |
any Mortgage;
|
(c) |
any General Assignment;
|
(d) |
any Charter Assignment;
|
(e) |
any 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.
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b) |
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction
Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;
|
(c) |
the Security Agent's interest in any turnover trust created under the Finance Documents;
|
(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on
trust for the Secured Parties,
|
(i) |
rights intended for the sole benefit of the Security Agent; and
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent (acting on the instructions of the Majority Lenders) or (being entitled to do so) has retained in accordance with the
provisions of this Agreement.
|
(a) |
in relation to Ship A, Godam Maritime Ltd, of the Republic of the Marshall Islands;
|
(b) |
in relation to Ship B, Mandala Maritime Ltd, of the Republic of the Marshall Islands;
|
(c) |
in relation to Ship C, Thunderbolt Maritime Ltd, of the Republic of the Marshall Islands ; and
|
(d) |
in relation to Ship D, Timberwolf Maritime Ltd, of the Republic of the Marshall Islands.
|
(a) |
a Transaction Obligor; or
|
(b) |
any other person who becomes a Subordinated Creditor in accordance with this Agreement.
|
(a) |
a Subordinated Loan Agreement; and
|
(b) |
any other document relating to or evidencing a Subordinated Creditor.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of that Ship; or
|
(b) |
any Requisition of that Ship unless that Ship is returned to the full control of the Borrower owning that Ship within 90 days of such Requisition (or such later period agreed by the Facility Agent acting on the
instructions of the Majority Lenders).
|
(a) |
in the case of an actual loss of 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.
|
(a) |
a Finance Document;
|
(b) |
a Subordinated Finance Document;
|
(c) |
any Charter;
|
(d) |
any Pool Agreement;
|
(e) |
the Purchase Agreement;
|
(f) |
any MOA; or
|
(g) |
any other document designated as such by the Facility Agent and the Borrowers.
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a) |
a person which is resident for tax purposes in the US; or
|
(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a) |
any value added tax imposed by the Value Added Tax Act 1994;
|
(b) |
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
|
(c) |
any other tax of a similar nature, whether imposed in the United Kingdom or a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) or (b) above,
or imposed elsewhere.
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation
Schedule;
|
(b) |
in relation to the UK Bail-In Legislation, 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
|
(c) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other
financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or
obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under
that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the "Account Bank", 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
|
1.4 |
Agreed forms of Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the 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 44.2 (All Lender matters)
applies, all the Lenders.
|
1.5 |
Third party rights
|
(a) |
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Subject to Clause 44.3 (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 30.10 (Exclusion of liability),
or paragraph (b) of Clause 32.11 (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,
|
2 |
THE FACILITY
|
2.1 |
The Facility
|
2.2 |
Finance Parties' rights and obligations
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party
under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from a Transaction Obligor
is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the
Finance Documents and, for the avoidance of doubt, any part of the Loan or any other amount owed by a Transaction Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any
such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Transaction Obligor.
|
(c) |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
3 |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
3.3 |
Proceeds of Loan
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
on the date of a Utilisation Request and on the proposed Utilisation Date and before the relevant Advance is made available:
|
(i) |
no Default is continuing or would result from the proposed Advance; and
|
(ii) |
the Repeating Representations to be made by each Transaction Obligor are true;
|
(b) |
in the case of each Advance, the Facility Agent has received on or before the Utilisation Date of that Advance, or the Majority Lenders are satisfied they will receive when that Advance is made available, all of
the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders).
|
4.3 |
Notification of satisfaction of conditions precedent
|
(a) |
The Security 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
|
5 |
UTILISATION
|
5.1 |
Delivery of a Utilisation Request
|
(a) |
The Borrowers may utilise the Facility in up to four Advances (one in respect of each Tranche) 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 under a Tranche.
|
5.2 |
Completion of a Utilisation Request
|
(a) |
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
it identifies the Tranche to be utilised;
|
(ii) |
the proposed Utilisation Date is a Business Day within the Availability Period; and
|
(iii) |
the currency and amount of the Advance comply with Clause 5.3 (Currency and amount).
|
(b) |
Only one Advance may be requested for a Tranche and only one Advance may be requested in a Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in each Utilisation Request must be dollars.
|
(b) |
The amount of the Advance shall not exceed:
|
(i) |
in relation to Tranche A, $16,200,000;
|
(ii) |
in relation to Tranche B, $16,200,000;
|
(iii) |
in relation to Tranche C, $15,200,000; and
|
(iv) |
in relation to Tranche D, $16,000,000.
|
(c) |
The amount of the proposed Advance must be an amount which is not more than the Available Facility.
|
5.4 |
Lenders' participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the relevant Utilisation Date through its Facility Office.
|
(b) |
The amount of each Lender's participation in each Advance will be equal to the proportion borne by its Available Commitment to the Available Facility immediately before making that Advance.
|
(c) |
Subject to receiving a Utilisation Request, the Facility Agent shall notify each Lender of the amount of each Advance and the amount of its participation in that Advance by the Specified Time.
|
5.5 |
Cancellation of Commitments
|
5.6 |
Retentions and payment to third parties
|
(a) |
to deduct from the proceeds of any Advance any fees then payable to the Finance Parties in accordance with Clause 10 (Fees), any solicitors fees and disbursements together
with any applicable VAT and any other items listed as deductible items in the relevant Utilisation Request and to apply them in payment of the items to which they relate; and
|
(b) |
on each Utilisation Date, to pay to, or for the account of, the Borrowers, the balance (after any deduction made in accordance with paragraph (a) above) of the amounts which the Facility Agent receives from the
Lenders in respect of relevant Advance. That payment shall be made:
|
(i) |
to the account of the relevant Seller which the Borrowers specify in the relevant Utilisation Request; and
|
(ii) |
in like funds as the Facility Agent received from the Lenders in respect of the relevant Advance.
|
5.7 |
Disbursement of Advance to third party
|
6 |
REPAYMENT
|
6.1 |
Repayment of Loan
|
(a) |
a first instalment in an amount of US$1,000,000 on the date falling nine (9) months after the last Utilisation Date;
|
(b) |
a second instalment in an amount of US$500,000 on the date falling twelve (12) months after the last Utilisation Date;
|
(c) |
a third instalment in an amount of US$1,500,000 on the date falling fifteen (15) months after the last Utilisation Date; and
|
(d) |
a balloon instalment in an amount equal to that Tranche then outstanding on the Termination Date.
|
6.2 |
Termination Date
|
6.3 |
Reborrowing
|
7 |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(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 be applied to each Tranche pro rata by the amount
prepaid or cancelled which shall then reduce the Repayment Instalments of that Tranche for each Repayment Date falling after that prepayment or cancellation in inverse chronological order.
|
7.2 |
Automatic cancellation
|
(a) |
The unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which the relevant Tranche is made available.
|
(b) |
If the whole or part of any Commitment is cancelled pursuant to Clause 5.5 (Cancellation of Commitments) or paragraph (a) above, the Repayment Instalments for the relevant
Tranche for each Repayment Date falling after that cancellation shall reduce pro rata by the amount of the Commitments so cancelled.
|
7.3 |
Voluntary prepayment of Loan
|
(a) |
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) |
If any part of a Tranche is prepaid under this Clause 7.3 (Voluntary prepayment of Loan), then the amount of the Repayment Instalments for the relevant Tranche for each
Repayment Date falling after that prepayment will reduce the Repayment Instalments pro rata by the amount of the Loan prepaid.
|
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 the 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 relevant Borrower.
|
(c) |
In this Clause 7.4 (Mandatory prepayment on sale or Total Loss):
|
(i) |
the Tranche applicable to that Ship; and
|
(ii) |
an amount equal to the Loan multiplied by a fraction whose:
|
(A) |
numerator is the Market Value of the Ship being sold or which has become a Total Loss, determined on the date on which such sale is completed by delivery to it buyer or, as the case may be, on the date immediately
prior to the date on which the Total Loss occurred; and
|
(B) |
denominator is the aggregate Market Value of all Ships on the date on which that Ship is sold or becomes a Total Loss.
|
(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 pro rata between the remaining Tranches which shall then reduce the Repayment Instalments of that Tranche for
each Repayment Date falling after that prepayment on a pro rata basis.
|
7.5 |
Additional mandatory prepayment
|
7.6 |
Restrictions
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and Cancellation) shall be irrevocable and, unless a contrary indication appears
in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made 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.
|
7.7 |
Application of prepayments
|
8 |
INTEREST
|
8.1 |
Calculation of interest
|
8.2 |
Payment of interest
|
8.3 |
Default interest
|
(a) |
If a Transaction Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and
after judgment) at a rate which is 2 per cent per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of the Loan in the currency of the Unpaid Sum for
successive Interest Periods, each having a duration as follows:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or the relevant part of the Loan; and
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2 per cent. per annum higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(b) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
8.4 |
Notification of rates of interest
|
9 |
INTEREST PERIODS
|
9.1 |
Duration of Interest Periods
|
(a) |
The first Interest Period for the Loan shall commence on the first Utilisation Date and end on the last day of the Interest Period applicable to the fourth and last Advance and each subsequent Interest Period
shall commence on the expiry of the preceding Interest Period.
|
(b) |
The first Interest Period for the second and any subsequent Advance (other than the last Advance to be drawn) shall start on the Utilisation Date of such Advance and end on the last day of the Interest Period
applicable to the fourth and last Advance.
|
(c) |
the first Interest Period for the fourth and last Advance shall start on Utilisation Date of such Advance and end on the date falling 3 months thereafter.
|
(d) |
Subject to paragraphs (a) – (c) above, the Loan shall have one Interest Period only at any time.
|
(e) |
The first Interest Period of each Advance shall end on the same date as that of the last Advance to be drawn. All subsequent Interest Periods shall be three Months.
|
9.2 |
Non-Business Days
|
10 |
FEES
|
10.1 |
Agency fee
|
10.2 |
Deferred Fee
|
(a) |
The Borrowers shall pay to the Facility Agent a non-refundable deferred fee (for the account of the Lenders pro-rata to their Commitments) in respect of each Tranche in an amount equal to 2 per cent. of the
Commitments as at the date of this Agreement applicable to that Tranche and in each case on the relevant Payment Date.
|
(b) |
In this Clause 10.2 (Deferred Fee):
|
(a) |
the Relevant Date in relation to the Ship applicable to that Tranche;
|
(b) |
the date on which that Tranche is prepaid or 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 27.19 (Acceleration);
|
(d) |
the relevant Termination Date; and
|
(e) |
the last day of the Security Period.
|
11 |
TAX GROSS UP AND INDEMNITIES
|
11.1 |
Definitions
|
(a) |
In this Agreement:
|
(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.
|
11.2 |
Tax gross-up
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b) |
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.
|
11.3 |
Tax indemnity
|
(a) |
The Obligors shall (within five Business Days of demand by the Facility Agent acting on the instructions of a Protected Party or claiming on its own behalf) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 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.
|
11.4 |
Tax Credit
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b) |
that Finance Party has obtained and utilised that Tax Credit,
|
11.5 |
Stamp taxes
|
11.6 |
VAT
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of
any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to
account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance
Party must promptly provide an appropriate VAT invoice to that Party).
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient")
under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to
the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal
to the amount of the VAT. The Recipient must (where this sub-paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient
reasonably determines relates to the VAT chargeable on that supply; and
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the
VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of
such cost or expense, including such part of it as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d) |
Any reference in this Clause 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 or equivalent provisions imposed elsewhere) 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.
|
11.7 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA;
and
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law,
regulation, or exchange of information regime.
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party,
that Party shall notify that other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion
constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above
(including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the
Party in question provides the requested confirmation, forms, documentation or other information.
|
(e) |
If a Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i) |
where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii) |
where a Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(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.
|
11.8 |
FATCA Deduction
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which
it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment
and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
12 |
INCREASED COSTS
|
12.1 |
Increased costs
|
(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,
|
(iii) |
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV.
|
(b) |
In this Agreement:
|
(i) |
"Basel III" means:
|
(A) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International
framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as
amended, supplemented or restated;
|
(B) |
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel
Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(C) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(ii) |
"CRD IV" means:
|
(A) |
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012, 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 Directive (EU) 2019/878; 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,
|
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.
|
12.3 |
Exceptions
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b) |
attributable to a FATCA Deduction required to be made by a Party;
|
(c) |
compensated for by Clause 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.
|
13 |
OTHER INDEMNITIES
|
13.1 |
Currency indemnity
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the
currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
(i) |
making or filing a claim or proof against that Obligor; or
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
13.2 |
Other indemnities
|
(a) |
Each Obligor shall, within 5 Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i) |
the occurrence of any Event of Default;
|
(ii) |
a failure by a Transaction Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 34 (Sharing among the Finance Parties);
|
(iii) |
funding, or making arrangements to fund, its participation in any Advance requested by the Borrowers in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that Secured Party alone); or
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by 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 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
|
(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 35.11 (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
|
14.1 |
Mitigation
|
(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 |
COSTS AND EXPENSES
|
15.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement or in a Security Document; and
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
15.2 |
Amendment costs
|
(a) |
a Transaction Obligor requests an amendment, waiver or consent; or
|
(b) |
an amendment is required pursuant to Clause 35.9 (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,
|
15.3 |
Enforcement and preservation costs
|
16 |
GUARANTEE AND INDEMNITY
|
16.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by each Transaction Obligor other than the Guarantor of all such other Transaction Obligor's obligations under the Finance Documents;
|
(b) |
undertakes with each Finance Party that whenever a Transaction Obligor other than the Guarantor does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on
demand pay that amount as if it were the principal obligor; and
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately
on demand against any cost, loss or liability it incurs as a result of a Transaction Obligor other than the Guarantor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under
any Finance Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 16 (Guarantee
and Indemnity) if the amount claimed had been recoverable on the basis of a guarantee.
|
16.2 |
Continuing guarantee
|
16.3 |
Reinstatement
|
16.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Transaction Obligor or other person;
|
(b) |
the release of any other Transaction Obligor or any other person under the terms of any composition or arrangement with any creditor of Transaction Obligor;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights
against, or security over assets of, any Transaction Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any
security;
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Transaction Obligor or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without
limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
16.5 |
Immediate recourse
|
16.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in
such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
|
(b) |
hold any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 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
|
(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.
|
16.8 |
Additional security
|
16.9 |
Applicability of provisions of Guarantee to other Security
|
17 |
JOINT AND SEVERAL LIABILITY OF THE BORROWERS
|
17.1 |
Joint and several liability
|
17.2 |
Waiver of defences
|
(a) |
this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower;
|
(b) |
any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower;
|
(c) |
any Lender or the Security Agent releasing any other Borrower or any Security created by a Finance Document;
|
(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 at any time during the Security Period;
|
(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.
|
17.3 |
Principal Debtor
|
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
|
(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.
|
18 |
REPRESENTATIONS
|
18.1 |
General
|
18.2 |
Status
|
(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 (other than the Permitted Security) or other claim, by the Guarantor.
|
(b) |
The Guarantor is authorised to issue 2,100,000,000 shares of capital stock in aggregate, consisting of: (a) 2,000,000,000 registered shares of common stock, par value $0.0001, of which approximately 9.5 million
shares are issued and outstanding, and (b) 100,000,000 registered shares of preferred stock, par value $0.0001, of which 40,000 shares designated as Series B Preferred Stock and 10,000 shares designated as Series C Preferred Stock, are
issued and outstanding.
|
(c) |
None of the shares in a Borrower is subject to any option to purchase, pre-emption rights or similar rights.
|
18.4 |
Binding obligations
|
18.5 |
Validity, effectiveness and ranking of Security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery create, subject to the Perfection Requirements, the Security it purports to create over any assets to
which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b) |
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c) |
Subject to the Perfection Requirements, the Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have first ranking priority 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
|
(a) |
any law or regulation applicable to it;
|
(b) |
the constitutional documents of any Transaction Obligor; or
|
(c) |
any agreement or instrument binding upon it or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.7 |
Power and authority
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i) |
its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those Transaction Documents; and
|
(ii) |
in the case of a Borrower, its registration or continuing registration (as the case may be) 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
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
(b) |
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
18.9 |
Governing law and enforcement
|
(a) |
The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b) |
Any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognised and enforced in its Relevant
Jurisdictions.
|
18.10 |
Insolvency
|
(a) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.8 (Insolvency proceedings); or
|
(b) |
creditors' process described in Clause 27.9 (Creditors' process),
|
18.11 |
No filing or stamp taxes
|
18.12 |
Deduction of Tax
|
18.13 |
No default
|
(a) |
No Event of Default and, on the date of this Agreement and on each Utilisation Date, no Default is continuing or might reasonably be expected to result from the borrowing of any Advance or the entry into, the
performance of, or any transaction contemplated by, any Transaction Document.
|
(b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it (or any other Transaction
Obligor) or to which its (or any Transaction Obligor's) assets are subject which might have a Material Adverse Effect.
|
18.14 |
No misleading information
|
(a) |
Any factual information provided by any Transaction Obligor for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it
is stated.
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in any such information being untrue or misleading in any material respect.
|
18.15 |
Financial Statements
|
(a) |
Its unaudited financial statements were prepared in accordance with GAAP consistently applied.
|
(b) |
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.
|
(c) |
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).
|
18.16 |
Pari passu ranking
|
18.17 |
No proceedings pending or threatened
|
(a) |
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) of or before any
court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened
against it or any other Transaction Obligor.
|
(b) |
No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which might reasonably be expected to have a Material Adverse Effect has
(to the best of its knowledge and belief (having made due and careful enquiry)) been made against it or any other Transaction Obligor.
|
18.18 |
Validity and completeness of MOAs and Purchase Agreement
|
(a) |
Each MOA and the Purchase Agreement constitutes legal, valid, binding and enforceable obligations of the Sellers.
|
(b) |
The copies of each MOA and the Purchase Agreement delivered to the Facility Agent before the date of this Agreement are true and complete copies.
|
(c) |
No further amendments or additions to a MOA (except for the entering with the relevant Seller into any required addendum, including but not limited to, in relation to the extension of the cancelling date under
each MOA) or the Purchase Agreement have been agreed nor have any rights under any MOA or the Purchase Agreement been waived.
|
18.19 |
No rebates etc.
|
18.20 |
Valuations
|
(a) |
All information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation delivered to the Facility Agent in accordance with this Agreement was true and accurate as at the date it was
supplied or (if appropriate) as at the date (if any) at which it is stated to be given.
|
(b) |
It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer.
|
(c) |
There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such information was provided and the date of that valuation which, in
either case, renders that information untrue or misleading in any material respect.
|
18.21 |
No breach of laws
|
(a) |
It has not breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
|
(b) |
No Transaction Obligor or any Affiliate thereof is in violation of and nor shall it violate any of the country or list based economic and trade sanctions administered and enforced by OFAC that are described
or referenced at http://ustreas.gov/offices/enforcement/ofac or as otherwise published from time to time.
|
18.22 |
No Charter
|
18.23 |
Compliance with Environmental Laws
|
18.24 |
No Environmental Claim
|
18.25 |
No Environmental Incident
|
18.26 |
ISM and ISPS Code compliance
|
18.27 |
Taxes paid
|
(a) |
It is not materially overdue in the filing of any Tax returns and it is not overdue in the payment of any amount in respect of Tax.
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes.
|
18.28 |
Financial Indebtedness
|
18.29 |
Overseas companies
|
18.30 |
Good title to assets
|
18.31 |
Ownership
|
(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) |
On and from the Delivery Date of each Ship, the relevant Borrower shall be the sole legal and beneficial owner of that Ship, its Earnings and its Insurances.
|
(c) |
With effect on and from the date of its creation or intended creation, each Transaction Obligor will be the sole legal and beneficial owner of any asset that is the subject of any Transaction Security created or
intended to be created by such Transaction Obligor.
|
(d) |
The constitutional documents of each Transaction Obligor do not and could not restrict or inhibit any transfer of the shares of a Borrower on creation or enforcement of the security conferred by the Security
Documents.
|
18.32 |
Centre of main interests and establishments
|
18.33 |
Place of business
|
18.34 |
No employee or pension arrangements
|
18.35 |
Sanctions
|
(a) |
No Transaction Obligor:
|
(i) |
is a Prohibited Person;
|
(ii) |
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person;
|
(iii) |
owns or controls a Prohibited Person; or
|
(iv) |
has a Prohibited Person serving as a director, officer or, to the best of its knowledge, employee.
|
(b) |
No proceeds of the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose
prohibited by Sanctions.
|
18.36 |
US Tax Obligor
|
18.37 |
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.
|
18.38 |
Patriot Act
|
18.39 |
Repetition
|
19 |
MOST FAVOURED NATION
|
20 |
INFORMATION UNDERTAKINGS
|
20.1 |
General
|
20.2 |
Financial statements
|
(a) |
as soon as they become available, but in any event within 120 days after the end of each 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.
|
20.4 |
DAC6
|
(a) |
In this Clause 20.4 (DAC6), "DAC6" means the Council Directive of 25 May 2018 (2018/822/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
|
(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 upon becoming aware of the same, the details of any breach under any Pool Agreement or any Approved Charter (either by the relevant Borrower or the Approved Pool Manager), including, without limitation,
any payment default by the Approved Pool Manager in relation to the payment of the distributions due to the relevant Borrower thereunder;
|
(e) |
promptly upon becoming aware of the same, to the best of its knowledge, any breach by the Approved Pool Manager in relation to any credit or facility agreement to which it is a party or any event of default
(howsoever defined) thereunder and, to the extent of its knowledge, notification of any proceedings (threatened or pending) against the Approved Pool Manager by its creditors under any such credit or facility agreement;
|
(f) |
promptly, its constitutional documents where these have been amended or varied;
|
(g) |
promptly, such further information and/or documents regarding:
|
(i) |
each Ship, goods transported on each Ship, the Earnings or the Insurances;
|
(ii) |
the Security Assets;
|
(iii) |
compliance of the Transaction Obligors with the terms of the Transaction Documents;
|
(iv) |
the financial condition, business and operations of any Transaction Obligor,
|
(h) |
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).
|
20.7 |
Use of websites
|
(a) |
Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders (the "Website Lenders")
which accept this method of communication by posting this information onto an electronic website designated by the Borrowers and the Facility Agent (the "Designated Website") if:
|
(i) |
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(ii) |
both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii) |
the information is in a format previously agreed between the relevant Obligor and the Facility Agent (acting on the instructions of the Majority Lenders.
|
(b) |
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors or any of them and
the Facility Agent.
|
(c) |
An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
(i) |
the Designated Website cannot be accessed due to technical failure;
|
(ii) |
the password specifications for the Designated Website change;
|
(iii) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v) |
if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
(d) |
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligors shall comply
with any such request within 10 Business Days.
|
20.8 |
"Know your customer" checks
|
(a) |
If:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii) |
any change in the status of a Transaction Obligor (including, without limitation, a change of ownership of a Transaction Obligor) after the date of this Agreement; or
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Party (for itself) in order for
that Servicing Party to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
20.9 |
Anti-money laundering
|
21 |
PURCHASE AGREEMENT AND MOA UNDERTAKINGS
|
21.1 |
General
|
21.2 |
No variation, release etc. of MOAs
|
(a) |
vary the Purchase Agreement;
|
(b) |
vary the MOA (except for the entering with the relevant Seller into any required addendum, including but not limited to, in in relation to the extension of the cancelling date under each MOA) to which it is a
party; or
|
(c) |
release, waive, suspend, subordinate or permit to be lost or impaired any interest or right of any kind which that Borrower has at any time to, in or in connection with, the Purchase Agreement, the MOA to which it
is a party or in relation to any matter arising out of or in connection with the Purchase Agreement or the MOA to which it is a party.
|
21.3 |
Provision of information relating to MOAs
|
(a) |
immediately inform the Facility Agent if any breach of the Purchase Agreement or the MOA to which it is a party occurs or a serious risk of such a breach arises and of any other event or matter affecting the
Purchase Agreement or that MOA which has or is reasonably likely to have a Material Adverse Effect; and
|
(b) |
upon the reasonable request of the Facility Agent, keep the Facility Agent informed as to any notice of readiness of delivery of its Ship.
|
21.4 |
No assignment etc. of MOA
|
22 |
GENERAL UNDERTAKINGS
|
22.1 |
General
|
22.2 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Facility Agent of,
|
(i) |
perform its obligations under the Transaction Documents to which it is a party;
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of each Ship of any Transaction Document to which it is a
party; and
|
(iii) |
as from the relevant Delivery Date, own and operate its Ship (in the case of a Borrower).
|
22.3 |
Corporate Existence
|
22.4 |
Compliance with laws
|
22.5 |
Environmental compliance
|
(a) |
comply with all Environmental Laws;
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals;
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
22.6 |
Environmental Claims
|
(a) |
any Environmental Claim against any Transaction Obligor which is current, pending or threatened; and
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any Transaction Obligor,
|
22.7 |
Taxation
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only
to the extent that:
|
(i) |
such payment is being contested in good faith;
|
(ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them and both have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 20.2 (Financial statements); and
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b) |
No Obligor shall change its residence for Tax purposes.
|
22.8 |
Overseas companies
|
22.9 |
No change to centre of main interests
|
22.10 |
Pari passu ranking
|
22.11 |
Title
|
(a) |
On and from the relevant Delivery Date applicable its Ship, the relevant Borrowers shall hold the legal title to, and own the entire beneficial interest in that Ship, its Earnings and its Insurances.
|
(b) |
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.
|
22.12 |
Negative pledge
|
(a) |
No Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, create or permit to subsist any Security over any of its assets which are, in the case of a Transaction Obligor other than a
Borrower, the subject of the Security created or intended to be created by the Finance Documents.
|
(b) |
No Borrower shall:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Transaction Obligor or any other member of the Group;
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
(c) |
Paragraphs (a) and (b) above do not apply to any Permitted Security.
|
22.13 |
Disposals
|
(a) |
No Obligor shall, enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of:
|
(i) |
in the case of 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 24.15 (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).
|
22.14 |
Merger
|
22.15 |
Change of business
|
(a) |
The Guarantor shall procure that no substantial change is made to the general nature of the business of the Guarantor from that carried on at the date of this Agreement of the holding of single purpose ship owning
subsidiaries and arrangement of acquisition, financing and the operation of vessels on behalf of these single purpose ship owning subsidiaries.
|
(b) |
No Borrower shall engage in any business other than the ownership and operation of its Ship.
|
22.16 |
Financial Indebtedness
|
22.17 |
Expenditure
|
22.18 |
Share capital
|
(a) |
purchase, cancel, redeem or retire 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 relevant 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; or
|
(d) |
appoint any further director or officer (unless the provisions of the relevant Shares Security are complied with).
|
22.19 |
Dividends and other distributions
|
(a) |
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);
|
(b) |
repay or distribute any dividend or share premium reserve; or
|
(c) |
redeem, repurchase, defease, retire or repay any of its shares or resolve to do so,
|
(i) |
no Event of Default has occurred and is continuing and no Event of Default would result from the making of that Distribution;
|
(ii) |
the Obligors are in compliance with all covenants under the Finance Documents;
|
(iii) |
the LTV is equal to or lower than 65 per cent. after the making of such Distribution and the prepayment required under sub-paragraph (iv) below; and
|
(iv) |
prior to or simultaneously with making that Distribution, the Borrowers prepay the Loan in an amount which is equal to twice the amount of that Distribution.
|
(d) |
Any prepayment pursuant to this Clause 22.19 (Dividends and other distributions) 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).
|
22.20 |
Other transactions
|
(a) |
be the creditor in respect of any loan or any form of credit to any person other than another Transaction Obligor and where such loan or form of credit is Permitted Financial Indebtedness;
|
(b) |
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which 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.
|
22.21 |
Unlawfulness, invalidity and ranking; Security imperilled
|
(a) |
make it unlawful for a Transaction Obligor to perform any of its obligations under the Transaction Documents 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.
|
22.22 |
No Subsidiaries
|
22.23 |
Employees and ERISA Compliance
|
22.24 |
Books and records
|
22.25 |
Further assurance
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly, and in any event within the time period specified by the Security Agent (acting on the instructions of the Facility Agent
which is acting on the instructions of the Majority Lenders) do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such
documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify acting reasonably (and in such form as the Security Agent (acting on
the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders) may require in favour of the Security Agent or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance Documents (which may
include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of any
of the Secured Parties provided by or pursuant to the Finance Documents or by law;
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Transaction Obligor located in any jurisdiction equivalent or similar to the Security intended to be
conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction
Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of
the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed by itself or another Transaction Obligor pursuant to this Clause 22.25 (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.
|
23 |
INSURANCE UNDERTAKINGS
|
23.1 |
General
|
23.2 |
Maintenance of obligatory insurances
|
(a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(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.
|
23.3 |
Terms of obligatory insurances
|
(a) |
in dollars;
|
(b) |
in the case of fire and usual marine risks and war risks, in an aggregate amount on an agreed value basis at least the greater of:
|
(i) |
120 per cent. of the Loan; and
|
(ii) |
the aggregate Market Values of the Ships;
|
(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.
|
23.4 |
Further protections for the Finance Parties
|
(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;
|
(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.
|
23.5 |
Renewal of obligatory insurances
|
(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.
|
23.6 |
Copies of policies; letters of undertaking
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b) |
a letter or letters or undertaking in a form required by the Facility Agent (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 23.4 (Further protections
for the Finance Parties);
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii) |
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv) |
they will, if they have not received notice of renewal instructions from 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.
|
23.7 |
Copies of certificates of entry
|
(a) |
a certified copy of the certificate of entry for that Ship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
|
(c) |
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to its Ship.
|
23.8 |
Deposit of original policies
|
23.9 |
Payment of premiums
|
23.10 |
Guarantees
|
23.11 |
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 23.6 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Facility Agent has not
given its prior approval (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.
|
23.12 |
Alteration to terms of insurances
|
23.13 |
Settlement of claims
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
23.14 |
Provision of copies of communications
|
(a) |
the Approved Brokers;
|
(b) |
the approved protection and indemnity and/or war risks associations; and
|
(c) |
the approved insurance companies and/or underwriters,
|
(i) |
that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii) |
any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
23.15 |
Provision of information
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 23.16 (Mortgagee's interest and additional perils insurances) or dealing with or
considering any matters relating to any such insurances,
|
23.16 |
Mortgagee's interest and additional perils insurances
|
(a) |
The Security Agent shall be entitled from time to time to effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils insurance 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.
|
24 |
SHIP UNDERTAKINGS
|
24.1 |
General
|
24.2 |
Ship's names and registration
|
(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,
|
(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.
|
24.3 |
Repair and classification
|
(a) |
consistent with first class ship ownership and management practice; and
|
(b) |
so as to maintain the Approved Classification free of overdue recommendations and conditions with the Approved Classification Society.
|
24.4 |
Modifications
|
24.5 |
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.
|
24.6 |
Surveys
|
24.7 |
Inspection
|
24.8 |
Prevention of and release from arrest
|
(a) |
Each Borrower shall, in respect of the Ship owned by it, promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances;
|
(ii) |
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
|
(b) |
Each Borrower shall immediately upon receiving notice of the arrest of 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.
|
24.9 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations:
|
(i) |
relating to its business generally; and
|
(ii) |
relating to the Ship owned by it, its ownership, employment, operation, management and registration,
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals; and
|
(c) |
without limiting paragraph (a) above, not employ the Ship owned by it nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code,
the ISPS Code, all Environmental Laws and all Sanctions (or which would be contrary to Sanctions if Sanctions were binding on each Transaction Obligor).
|
24.10 |
ISPS Code
|
(a) |
procure that the Ship owned by it and the company responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for that Ship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC in respect of that Ship.
|
24.11 |
Sanctions and Ship trading
|
(a) |
that the Ship owned by it shall not be used by or for the benefit of a Prohibited Person;
|
(b) |
that such Ship shall not be used in trading in any manner contrary to Sanctions (or which could be contrary to Sanctions if Sanctions were binding on each Obligor);
|
(c) |
that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances; and
|
(d) |
that each charterparty in respect of that Ship shall contain, for the benefit of the relevant Borrower owning that Ship, language which gives effect to the provisions of paragraph (c) of Clause 24.9 (Compliance with laws etc.) as regards Sanctions and of this Clause 24.11 (Sanctions and Ship trading) and which permits refusal of employment or voyage orders if
compliance would result in a breach of Sanctions (or which would result in a breach of Sanctions if Sanctions were binding on each Obligor).
|
24.12 |
Trading in war zones
|
(a) |
the prior written consent of the Security Agent acting on the instructions of the 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.
|
24.13 |
Provision of information
|
(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, to the extent applicable, any information relating to any Pool Agreement or any Approved
Charter in this regard,
|
24.14 |
Notification of certain events
|
(a) |
any casualty to that Ship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of that Ship for hire;
|
(d) |
any requirement or recommendation made in relation to 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,
|
24.15 |
Restrictions on chartering, appointment of managers etc.
|
(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, an Approved Pool 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 24.15 (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.
|
24.16 |
Notice of Mortgage
|
24.17 |
Sharing of Earnings
|
24.18 |
Charter assignment
|
(a) |
provide promptly to the Facility Agent a true and complete copy of any Charter exceeding 6 months (including all amendments) and all other documents related thereto for a term which exceeds 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) (other than in the case of an Approved Charter), 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).
|
24.19 |
Notification of compliance
|
24.20 |
Pool withdrawal
|
25 |
VALUATIONS
|
25.1 |
Valuations binding
|
25.2 |
Provision of information
|
(a) |
Each Borrower shall promptly provide the Facility Agent and any shipbroker acting under this Clause 25 (Valuations) 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.
|
25.3 |
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;
|
(ii) |
prior to making any Distribution for the purpose of the calculation of the LTV under Clause 22.19 (Dividends and other distributions); and
|
(iii) |
as at the date on which a Ship is to be sold or has become a Total Loss,
|
(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 the Borrowers' expense, valuations of that Ship, from
Approved Valuers selected by the Facility Agent (acting on the instructions of the Majority Lenders), showing the Market Value of that Ship (which Market Value shall be notified to the Facility Agent in writing).
|
26 |
EARNINGS ACCOUNT AND APPLICATION OF EARNINGS
|
26.1 |
Earnings Account
|
26.2 |
Payment of Earnings
|
26.3 |
Application of Earnings
|
(a) |
The Borrowers shall transfer from the Earnings Accounts (or any of them) 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,
|
(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 the Earnings Accounts.
|
26.4 |
Shortfall in Earnings
|
26.5 |
Application of funds
|
(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,
|
26.6 |
Location of Earnings Account
|
(a) |
comply with any requirement of the Facility Agent (acting on the instructions of the Majority Lenders) as to the location or relocation of the Earnings Account; and
|
(b) |
execute any documents which the Facility Agent (acting on the instructions of the Majority Lenders) specifies to create or maintain in favour of the Security Agent, Security over (and/or rights of set-off,
consolidation or other rights in relation to) the Earnings Account.
|
27 |
EVENTS OF DEFAULT
|
27.1 |
General
|
27.2 |
Non-payment
|
(a) |
its failure to pay is caused by:
|
(i) |
administrative or technical error; or
|
(ii) |
a Disruption Event; and
|
(b) |
payment is made within 3 Business Days of its due date.
|
27.3 |
Specific obligations
|
27.4 |
Other obligations
|
(a) |
A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 27.2 (Non-payment) and Clause 27.3 (Specific obligations)).
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 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.
|
27.5 |
Misrepresentation
|
27.6 |
Cross default
|
(a) |
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d) |
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause 27.6 (Cross default) in respect of the 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.
|
27.7 |
Insolvency
|
(a) |
A Transaction Obligor:
|
(i) |
is unable or admits inability to pay its debts as they fall due;
|
(ii) |
is deemed to, or is declared to, be unable to pay its debts under applicable law;
|
(iii) |
suspends or threatens to suspend making payments on any of its debts; or
|
(iv) |
obtains or receives a deferral or suspension of payments, a rescheduling or re-organisation of debt (or certain debt) or an arrangement with all or a substantial proportion (by number or value) of
creditors or of any class of them in respect of such deferral, suspension, rescheduling or re-organisation, strictly by court order or by the filing of documents with a court.
|
(b) |
A moratorium is officially declared in respect of any indebtedness of any Transaction Obligor.
|
(A) |
should a Transaction Obligor, by any reason, including without limitation, any actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (including any Finance
Party in its capacity as such) with a view to rescheduling, deferring, re-organising or suspending, any of its indebtedness, the existence of such negotiations or the entry, as a result of such negotiations, into any agreement or
contract with one or more creditors (including any Finance Party in its capacity as such) setting out the terms of any such rescheduling, deferral, reorganisation or suspension of its indebtedness, shall not in itself constitute an
Event of Default; and
|
(B) |
no Event of Default will occur under this Clause 27.7 (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.
|
27.8 |
Insolvency proceedings
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(i) |
the suspension of payments, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Transaction Obligor;
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of any Transaction Obligor;
|
(iii) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not a Transaction Obligor), receiver, administrator, administrative receiver, compulsory
manager or other similar officer in respect of any Transaction Obligor or any of its assets; or
|
(iv) |
enforcement of any Security over any assets of any Transaction Obligor,
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
|
(c) |
No Event of Default will occur under this Clause 27.8 (Insolvency proceedings) if any of the events described in paragraph (a) above occurs in respect of an
Approved Manager 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.
|
27.9 |
Creditors' process
|
27.10 |
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 Seanergy Maritime Holdings 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.
|
27.11 |
Unlawfulness, invalidity and ranking
|
(a) |
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents.
|
(b) |
Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable 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.
|
27.12 |
Security imperilled
|
27.13 |
Cessation of business
|
27.14 |
Arrest
|
27.15 |
Expropriation
|
(a) |
an arrest or detention of a Ship referred to in Clause 27.14 (Arrest); or
|
(b) |
any Requisition.
|
27.16 |
Repudiation and rescission of agreements or breach of Pool Agreement
|
(a) |
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.
|
(b) |
Any relevant Borrower breaches any of the provisions of Pool Agreement to which it is a party which is capable of remedy and is not remedied within 5 Business Days.
|
27.17 |
Litigation
|
27.18 |
Material adverse change
|
27.19 |
Acceleration
|
(a) |
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become
immediately due and payable;
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders; and/or
|
(d) |
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents,
|
27.20 |
Enforcement of security
|
28 |
CHANGES TO THE LENDERS
|
28.1 |
Assignments and transfers by the Lenders
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
28.2 |
Conditions of assignment or transfer
|
(a) |
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 28.5 (Procedure for transfer) is complied with.
|
(e) |
If:
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, a Transaction Obligor would be obliged to make a payment to the New 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),
|
(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.
|
28.3 |
Assignment or transfer fee
|
28.4 |
Limitation of responsibility of Existing Lenders
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents, the Transaction Security or any other documents;
|
(ii) |
the financial condition of any Transaction Obligor;
|
(iii) |
the performance and observance by any Transaction Obligor of its obligations under the Transaction Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Transaction Obligor and its related entities in connection with its
participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document or the Transaction Security; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout the Security Period.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 28 (Changes to the Lenders);
or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its obligations under the Transaction Documents or otherwise.
|
28.5 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in Clause 28.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when the
Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after
receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b) |
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied 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 28.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of
the Transaction Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under
the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and Obligations");
|
(ii) |
each of the Transaction Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only
insofar as that Transaction Obligor and the New Lender have assumed and/or acquired the same in place of that Transaction Obligor and the Existing Lender;
|
(iii) |
the Facility Agent, the Security Agent, the 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".
|
28.6 |
Procedure for assignment
|
(a) |
Subject to the conditions set out in Clause 28.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when
the Facility Agent 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 28.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the
Assignment Agreement;
|
(ii) |
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and
any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause 28.6 (Procedure for assignment) to assign their rights under the Finance Documents (but not,
without the consent of the relevant Transaction Obligor or unless in accordance with Clause 28.5 (Procedure for transfer), to obtain a release by that Transaction Obligor from the obligations
owed to that Transaction Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 28.2 (Conditions of assignment or transfer).
|
28.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower
|
28.8 |
Security over Lenders' rights
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or
securities,
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for 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.
|
28.9 |
Pro rata interest settlement
|
(a) |
If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in
respect of any transfer pursuant to Clause 28.5 (Procedure for transfer) or any assignment pursuant to Clause 28.6 (Procedure for assignment) the Transfer
Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
|
(i) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding
the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the
Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(ii) |
The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(A) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(B) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 28.9 (Pro rata interest settlement), have
been payable to it on that date, but after deduction of the Accrued Amounts.
|
(b) |
In this Clause 28.9 (Pro rata interest settlement) references to "Interest Period" shall be construed to include a reference to any other period for accrual of
fees.
|
(c) |
An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 28.9 (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.
|
29 |
CHANGES TO THE TRANSACTION OBLIGORS
|
29.1 |
Assignment or transfer by Transaction Obligors
|
29.2 |
Release of security
|
(a) |
If a disposal of any asset subject to security created by a Security Document is made in the following circumstances:
|
(i) |
the disposal is permitted by the terms of any Finance Document;
|
(ii) |
the Majority Lenders agree to the disposal;
|
(iii) |
the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or
|
(iv) |
the disposal is being effected by enforcement of a Security Document,
|
(b) |
Without prejudice to paragraph (a) of this Clause 29.2 (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 29.2 (Release of security) (at the request and expense of the Borrowers) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release.
Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. Any release will not affect the obligations of any other Transaction Obligor under the Finance Documents.
|
30 |
THE FACILITY AGENT
|
30.1 |
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.
|
30.2 |
Instructions
|
(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) |
Any instructions given by the Majority Lenders or, as the case may be, the Lenders shall be in writing and any instructions given by the Majority Lenders on matters which do not require the consent or
instructions of all Lenders as specified in this Agreement shall be binding on all the Lenders.
|
(c) |
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.
|
(d) |
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.
|
(e) |
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.
|
(f) |
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 44 (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.
|
(g) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its
discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying
with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 30.2 (Instructions), in the absence of instructions, the Facility Agent shall not be obliged to take any action
(or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties.
|
(i) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document.
This paragraph (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.
|
30.3 |
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 28.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not apply to any Transfer
Certificate or any Assignment Agreement.
|
(d) |
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).
|
30.4 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent as a trustee or fiduciary of any other person.
|
(b) |
The Facility Agent shall not be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
30.5 |
Application of receipts
|
30.6 |
Business with the Group
|
30.7 |
Rights and discretions
|
(a) |
The Facility Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 27.2 (Non-payment));
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the 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,
|
(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.
|
30.8 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, a Transaction Obligor or any other person in, or in connection with,
any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction
Document; or
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured Party is non-public information the use of which may be regulated or prohibited by applicable law
or regulation relating to insider dealing or otherwise.
|
30.9 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c) |
whether any other event specified in any Transaction Document has occurred.
|
30.10 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 35.11 (Disruption to Payment Systems etc.) or any other provision of any
Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document
or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for
negligence or any other category of liability whatsoever) arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect
of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this paragraph (b) subject to
Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the
Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Transaction
Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later,
the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the
Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the
possibility of such loss or damages.
|
30.11 |
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 35.11 (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.
|
30.12 |
Resignation of the Facility Agent
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrowers.
|
(b) |
Alternatively, the 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 30 (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;
|
30.13 |
Confidentiality
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions
or departments.
|
(b) |
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents,
that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c) |
Without prejudice to Clause 30.4 (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.
|
30.14 |
Relationship with the other Finance Parties
|
(a) |
Subject to Clause 28.9 (Pro rata interest settlement), the Facility Agent may treat a person shown in its records as Lender at the opening of business (in the
place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as a Lender acting through its Facility Office.
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security
Agent to perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent and any reference to any instructions
being given by or sought from any Finance Party or group of Finance Parties to or by the Security Agent in this Agreement must be given or sought through the Facility Agent.
|
(c) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance
Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 38.5 (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 38.2 (Addresses) and
sub-paragraph (ii) of paragraph (a) of Clause 38.5 (Electronic communication) and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices,
communications, information and documents as though that person were that Lender.
|
30.15 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each Transaction Obligor;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security
Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security
Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions
contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the
Security Assets.
|
30.16 |
Facility Agent's management time
|
30.17 |
Deduction from amounts payable by the Facility Agent
|
30.18 |
Reliance and engagement letters
|
30.19 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance
Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to
such Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document,
|
(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, as the case may be and subject to Clause 44.2 (All Lender matters) all Lenders, and in doing so shall be deemed to have acted reasonably.
|
(b) |
The instructions or directions of the Majority Lenders or, as the case may be, all Lenders referred to in paragraph (a) above shall be provided in accordance with and are subject to, the provisions of Clause 28.2 (Instructions).
|
31 |
AMOUNTS PAID IN ERROR
|
(a) |
If the Facility Agent (acting on the instructions of the Majority Lenders) pays an amount to another Party and the Facility Agent notifies that Party that such payment was an Erroneous Payment then the Party to whom that amount 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.
|
(b) |
Neither:
|
(i) |
the obligations of any Party to the Facility Agent; nor
|
(ii) |
the remedies of the Facility Agent,
|
(c) |
All payments to be made by a Party to the Facility Agent (whether made pursuant to this Clause 29 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
|
(d) |
In this Agreement, "Erroneous Payment" means a payment of an amount by the Facility Agent (acting on the instructions of the Majority Lenders) to another Party which the Facility Agent
determines (in its sole discretion) was made in error.
|
32 |
THE SECURITY AGENT
|
32.1 |
Trust
|
(a) |
The Security Agent declares that it holds the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this
Clause 31 (The Security Agent) and the other provisions of the Finance Documents.
|
(b) |
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the
Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
32.2 |
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 32.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent:
|
(i) |
is the independent and separate creditor of each Parallel Debt;
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of
guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d) |
The Parallel Debt of an Obligor shall be:
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii) |
increased to the extent that its Corresponding Debt has increased,
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
(B) |
increased to the extent that its Parallel Debt has increased,
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) to the extent
permitted by applicable law, shall be applied in accordance with Clause 35.5 (Application of receipts; partial payments).
|
(f) |
This Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.
|
32.3 |
Enforcement through Security Agent only
|
32.4 |
Instructions
|
(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) |
Any instructions given by the Majority Lenders or, as the case may be, the Lenders shall be in writing and any instructions given by the Majority Lenders on matters which do not require the consent or
instructions of all Lenders as specified in this Agreement shall be binding on all the Lenders.
|
(c) |
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.
|
(d) |
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.
|
(e) |
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 32.28 (Application of receipts);
|
(B) |
Clause 32.29 (Permitted Deductions); and
|
(C) |
Clause 32.30 (Prospective liabilities).
|
(f) |
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 44 (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.
|
(g) |
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,
|
(h) |
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.
|
(i) |
Without prejudice to the remainder of this Clause 32.4 (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.
|
(j) |
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.
|
32.5 |
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).
|
32.6 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Transaction Obligor or any other person.
|
(b) |
The Security Agent shall not be bound to account to any other Secured Party for any sum or the profit element of any sum received by it for its own account.
|
32.7 |
Business with the Group
|
32.8 |
Rights and discretions
|
(a) |
The Security Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents;
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(C) |
if it receives any instructions to act in relation to the Transaction Security, that all applicable conditions under the Finance Documents for so acting have been satisfied; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Security Agent shall be entitled to carry out all dealings with the other Finance Parties through the Facility Agent and may give to the Facility Agent any notice or other communication required to be
given by the Security Agent to any Finance Party.
|
(c) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i) |
no Default has occurred;
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the 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,
|
(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 32.6 (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.
|
32.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, a Transaction Obligor or any other person in, or in connection with,
any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction
Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation
relating to insider dealing or otherwise.
|
32.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c) |
whether any other event specified in any Transaction Document has occurred.
|
32.11 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of
the Security Agent nor any Receiver or Delegate will be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction Document
or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of sub-paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation,
for negligence or any other category of liability whatsoever) arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in
respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property
and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Security Agent if the
Security Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Security Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate, any liability of the Security Agent or any Receiver or
Delegate arising under or in connection with any Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference
to the date of default of the Security Agent. Receiver or 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.
|
32.12 |
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.
|
32.13 |
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 32.25 (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 32 (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.
|
32.14 |
Confidentiality
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions
or departments.
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents,
that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c) |
Without prejudice to Clause 32.6 (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.
|
32.15 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each Transaction Obligor;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the Security
Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document or the Security
Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions
contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting the
Security Assets.
|
32.16 |
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 32.12 (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:
|
(i) |
a Default;
|
(ii) |
the Security Agent being requested by a Transaction Obligor or the Majority Lenders to undertake duties which the Security Agent and the Borrowers agree to be of an exceptional nature or outside the scope
of the normal duties of the Security Agent under the Finance Documents; or
|
(iii) |
the Security Agent and the Borrowers agreeing that it is otherwise appropriate in the circumstances,
|
(c) |
If the Security Agent and the Borrowers fail to agree upon the nature of the duties, or upon the additional remuneration referred to in paragraph (b) above or whether additional remuneration is
appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Agent and approved by the Borrowers or, failing approval, nominated (on the
application of the Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Borrowers) and the determination of any
investment bank shall be final and binding upon the Parties.
|
32.17 |
Reliance and engagement letters
|
32.18 |
No responsibility to perfect Transaction Security
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Security Assets;
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the
execution of any Finance Document or of the Transaction Security;
|
(d) |
take, or to require any Transaction Obligor to take, any step to perfect its title to any of the Security Assets or to render the Transaction Security effective or to secure the creation of any ancillary
Security under any law or regulation; or
|
(e) |
require any further assurance in relation to any Security Document.
|
32.19 |
Insurance by Security Agent
|
(a) |
The Security Agent shall not be obliged:
|
(i) |
to insure any of the Security Assets;
|
(ii) |
to require any other person to maintain any insurance; or
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of
any material fact relating to the risk assumed by such insurers or any other information of any kind.
|
32.20 |
Custodians and nominees
|
32.21 |
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.
|
32.22 |
Additional Security Agents
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction,
|
(b) |
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties,
obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c) |
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that
appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
32.23 |
Acceptance of title
|
32.24 |
Releases
|
32.25 |
Winding up of trust
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Transaction Obligor pursuant to the Finance
Documents,
|
(i) |
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each
of the Security Documents; and
|
(ii) |
any Security Agent which has resigned pursuant to Clause 32.13 (Resignation of the Security Agent) shall release, without recourse or warranty, all of its rights
under each Security Document.
|
32.26 |
Powers supplemental to Trustee Acts
|
32.27 |
Disapplication of Trustee Acts
|
32.28 |
Application of receipts
|
(a) |
in discharging any sums owing to the Security Agent (in its capacity as such) other than pursuant to Clause 32.2 (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 35.5 (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.
|
32.29 |
Permitted Deductions
|
(a) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make
from any distribution or payment made by it under this Agreement; and
|
(b) |
pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the
Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
32.30 |
Prospective liabilities
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
32.31 |
Investment of proceeds
|
32.32 |
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.
|
32.33 |
Good discharge
|
(a) |
Any payment to be made in respect of the Secured Liabilities by the Security Agent may be made to the Facility Agent on behalf of the Secured Parties and any payment made in that way shall be a good
discharge, to the extent of that payment, by the Security Agent.
|
(b) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) above in the same currency as that in which the obligations and liabilities owing to the relevant
Finance Party are denominated.
|
32.34 |
Amounts received by Obligors
|
32.35 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a Finance
Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to
such Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document,
|
32.36 |
Majority Lenders' Instructions
|
(a) |
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, subject to Clause 44.2 (All Lender matters) all Lenders, as the case may be) and in doing so shall be deemed to have acted reasonably.
|
(b) |
The instructions or directions of the Majority Lenders or, as the case may be, all Lenders referred to in paragraph (a) above shall be provided in accordance with, and are subject to, the provisions of Clause 32.4 (Instructions).
|
(c) |
Notwithstanding the provisions of Clause 32.4 (Instructions), 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.
|
(d) |
Notwithstanding the provisions of Clause 32.4 (Instructions), in the absence of instructions from the Facility Agent, the Security Agent shall not be obliged to take any action.
|
33 |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
34 |
SHARING AMONG THE FINANCE PARTIES
|
34.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b) |
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the
Facility Agent and distributed in accordance with Clause 35 (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 35.5 (Application
of receipts; partial payments).
|
34.2 |
Redistribution of payments
|
34.3 |
Recovering Finance Party's rights
|
34.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the
Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and
|
(b) |
as between the relevant Transaction Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Transaction
Obligor.
|
34.5 |
Exceptions
|
(a) |
This Clause 34 (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.
|
35 |
PAYMENT MECHANICS
|
35.1 |
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.
|
35.2 |
Distributions by the Facility Agent
|
35.3 |
Distributions to a Transaction Obligor
|
35.4 |
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.
|
35.5 |
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.
|
35.6 |
No set-off by Transaction Obligors
|
35.7 |
Business Days
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
35.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from a Transaction Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
|
35.9 |
Change of currency
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of
that country designated by the Facility Agent (acting on the instructions of the Majority Lenders) (after consultation with the 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.
|
35.10 |
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.
|
35.11 |
Disruption to Payment Systems etc.
|
(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 44 (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 35.11 (Disruption to Payment Systems etc.); and
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
36 |
SET-OFF
|
37 |
BAIL-IN
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
38 |
NOTICES
|
38.1 |
Communications in writing
|
38.2 |
Addresses
|
(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),
|
38.3 |
Delivery
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i) |
if by way of fax, when received in legible form;
|
(ii) |
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or
|
(iii) |
if by way of electronic mail, in accordance with Clause 38.5 (Electronic communication),
|
(b) |
Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party and then only if it is expressly marked for the attention
of the department or officer of that Servicing Party specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Party shall specify for this purpose).
|
(c) |
All notices from or to a Transaction Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d) |
Any communication or document made or delivered to the 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.
|
38.4 |
Notification of address and fax number
|
38.5 |
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 38.5 (Electronic communication).
|
38.6 |
English language
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Facility Agent (acting on the instructions of the Majority Lenders), accompanied by a certified English translation prepared by a translator approved by the
Facility Agent (acting on the instructions of the Majority Lenders) and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
39 |
CALCULATIONS AND CERTIFICATES
|
39.1 |
Accounts
|
39.2 |
Certificates and determinations
|
39.3 |
Day count convention
|
40 |
PARTIAL INVALIDITY
|
41 |
REMEDIES AND WAIVERS
|
42 |
SETTLEMENT OR DISCHARGE CONDITIONAL
|
43 |
IRREVOCABLE PAYMENT
|
44 |
AMENDMENTS AND WAIVERS
|
44.1 |
Required consents
|
(a) |
Subject to Clause 44.2 (All Lender matters) and Clause 44.3 (Other exceptions) any term of the Finance Documents may be
amended or waived only with the consent of the Majority Lenders and, 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 44 (Amendments and Waivers).
|
(c) |
Without prejudice to the generality of Clause 30.7 (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 28.9 (Pro rata interest settlement) shall apply to this Clause 44 (Amendments and Waivers).
|
44.2 |
All Lender matters
|
(a) |
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
(b) |
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(c) |
a reduction in the 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 29 (Changes to the Transaction Obligors);
|
(g) |
any provision which expressly requires the consent of all the Lenders;
|
(h) |
this Clause 44 (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 24.9 (Compliance with laws, etc.) 24.11 (Sanctions and Ship trading), Clause 26 (Earnings Account and Application of Earnings), Clause 28 (Changes to the Lenders), Clause 34 (Sharing among the Finance Parties), Clause 47 (Governing Law) or Clause 48 (Enforcement);
|
(j) |
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document (except in the case of a release of Transaction Security
as it relates to the disposal of an asset which is the subject of the Transaction Security and where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document);
|
(k) |
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:
|
(i) |
the 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,
|
(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,
|
44.3 |
Other exceptions
|
(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.
|
44.4 |
Obligor Intent
|
45 |
CONFIDENTIAL INFORMATION
|
45.1 |
Confidentiality
|
45.2 |
Disclosure of Confidential Information
|
(a) |
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, 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;
|
(b) |
to any person:
|
(i) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may
potentially succeed) it as Facility Agent or Security Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or
may be made by reference to, one or more Finance Documents and/or one or more Transaction Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(iii) |
appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to receive communications, notices, information or documents delivered pursuant to the
Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 30.14 (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 28.8 (Security over Lenders' rights);
|
(viii) |
who is a Party, a Transaction Obligor or any related entity of a Transaction Obligor;
|
(ix) |
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document; or
|
(x) |
with the consent of the Borrowers;
|
(A) |
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there
shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B) |
in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by
requirements of confidentiality in relation to the Confidential Information they receive and is informed that 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.
|
45.3 |
DAC6
|
45.4 |
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 47 (Governing Law);
|
(vi) |
the name of the Facility Agent;
|
(vii) |
date of each amendment and restatement of this Agreement;
|
(viii) |
amount of Total Commitments;
|
(ix) |
currency of the Facility;
|
(x) |
type of Facility;
|
(xi) |
ranking of Facility;
|
(xii) |
Termination Date for Facility;
|
(xiii) |
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xii) above; and
|
(xiv) |
such other information agreed between such Finance Party and the Borrowers,
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Transaction Obligors by a numbering service provider and the information
associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c) |
Each Obligor represents, on behalf of itself and the other Transaction Obligors, that none of the information set out in sub-paragraphs (i) to (xiv) of paragraph (a) above is, nor will at any time be,
unpublished price-sensitive information.
|
45.5 |
Entire agreement
|
45.6 |
Inside information
|
45.7 |
Notification of disclosure
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 45.2 (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 45 (Confidential Information).
|
45.8 |
Continuing obligations
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
46 |
COUNTERPARTS
|
47 |
GOVERNING LAW
|
48 |
ENFORCEMENT
|
48.1 |
Jurisdiction
|
(a) |
Unless specifically provided in another Finance Document in relation to that Finance Document, the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with
any Finance Document (including a dispute regarding the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a "Dispute").
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause 48.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating
to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
48.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints Messrs Shoreside Agents Ltd, presently at 5 St Helen’s Place, London EC3A 6AB ( (T: +44 (0)20 3771 8869, M: + 44 (0) 7591 440086, Fax: +44 (0)20 3771 8870, attention: Andrew
Johnson) 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.
|
49 |
PATRIOT ACT NOTICE
|
49.1 |
PATRIOT Act Notice
|
Name of Borrower
|
Place of
Incorporation
|
Registration number
(or equivalent, if any)
|
Address for
Communication
|
PAROSEA SHIPPING CO.
|
Republic of the Marshall Islands
|
115306
|
154 Vouliagmenis Avenue, 166 74
|
Glyfada, Athens Greece | |||
Tel: +302130181507 | |||
Email: legal@usea.gr
|
|||
Fax: +302109638404
|
|||
BLUESEA
SHIPPING CO.
|
Republic of the Marshall Islands
|
115305
|
154 Vouliagmenis Avenue, 166 74
|
Glyfada, Athens Greece | |||
Tel: +302130181507
|
|||
Email: legal@usea.gr
|
|||
Fax: +302109638404
|
|||
MINOANSEA MARITIME CO.
|
Republic of the Marshall Islands
|
115307
|
154 Vouliagmenis Avenue, 166 74
|
Glyfada, Athens Greece | |||
Tel: +302130181507
|
|||
Email: legal@usea.gr
|
|||
Fax: +302109638404
|
|||
EPANASTASEA MARITIME CO.
|
Republic of the Marshall Islands
|
115299
|
154 Vouliagmenis Avenue, 166 74
|
Glyfada, Athens Greece | |||
Tel: +302130181507
|
|||
Email: legal@usea.gr
|
|||
Fax: +302109638404
|
Name of Guarantor
|
Place of Incorporation
|
Registration number
(or equivalent, if
any)
|
Address for
Communication
|
United Maritime Corporation
|
The Republic of the Marshall Islands
|
112801
|
154 Vouliagmenis Avenue, 166 74
|
Glyfada, Athens Greece | |||
Tel: +302130181507
|
|||
Email: legal@usea.gr
|
|||
Fax: +302109638404
|
Name of Original Lender
|
Commitment
|
Address for Communication
|
Blue Ocean Onshore Fund LP
|
$27,692,028
|
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
|
$13,009,565
|
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
|
$7,219,948
|
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
|
$4,998,675
|
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 Investments SPC, for and on behalf of Segregated Portfolio One
|
$745,832
|
Blue Ocean Investments SPC
|
|
|
c/o EnTrust Global Partners Offshore LP
|
|
|
375 Park Avenue
|
|
|
New York, NY 10152
|
|
|
|
Blue Ocean Income Fund II LP
|
$3,074,283
|
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
|
$1,040,633
|
Blue Ocean Income Fund II 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 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.
|
$3,789,595
|
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
|
||
BO FR SPV I LP
|
$2,029,441
|
BO FR SPV I 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
|
Name of Facility Agent
|
Address for Communication
|
Kroll Agency Services Limited
|
The News Building, Level 6, 3 London Bridge Street, London, England SE1 9SG
|
Fax: + 44 207 354 6132
|
|
Attention: Kroll Agency and Trustee Services Limited (deals@ats.kroll.com)
|
|
Name of Security Agent
|
Address for Communication
|
Kroll Trustee Services Limited
|
The News Building, Level 6, 3 London Bridge Street, London, England SE1 9SG
|
Fax: + 44 207 354 6132
|
|
Attention: Kroll Agency and Trustee Services Limited (deals@ats.kroll.com)
|
1 |
Obligors
|
1.1 |
A copy of the constitutional documents of each Transaction Obligor.
|
1.2 |
A copy of a resolution of the board of directors of each Transaction Obligor:
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request) to be signed and/or despatched by it under, or
in connection with, the Finance Documents to which it is a party.
|
1.3 |
A copy 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 copy of 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 copy of 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 copy of 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 |
Finance Documents
|
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 any Subordination Agreement, if applicable.
|
3 |
Security
|
4 |
Legal opinions
|
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 |
Duly executed copies of the Purchase Agreement and each MOA and of all documents signed or issued by a Borrower or a Seller (or any of them) under or in connection with them.
|
5.2 |
Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution of the Purchase Agreement and each MOA by each of the parties to them.
|
5.3 |
Evidence that any process agent referred to in Clause 48.2 (Service of process) has accepted its appointment.
|
5.4 |
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.
|
5.5 |
Evidence that each Earnings Account has been opened with the Account Bank.
|
5.6 |
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 first Utilisation Date.
|
5.7 |
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions
contemplated by the Finance Documents.
|
1 |
Borrower
|
2 |
Finance Documents
|
2.1 |
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (Conditions Precedent).
|
2.2 |
A duly executed original of any other document required to be delivered by each Finance Document if not otherwise referred to this Schedule 2 (Conditions Precedent).
|
3 |
Ship and other security
|
3.1 |
A duly executed original of the Account Security and the Shares Security in respect of the relevant Borrower and of each document to be delivered under or pursuant to each of them.
|
3.2 |
A duly executed original of the Mortgage, the General Assignment and any Charter Assignment in respect of the relevant Ship and of each document to be delivered under or pursuant to each of them
(including, without limitation, a notice of assignment in relation to the assignment of distributions under the Pool Agreement with Signal Maritime Aframax Pool Ltd and an acknowledgment in respect of such assignment from the relevant
Approved Pool Manager) together with documentary evidence that such 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.
|
3.3 |
Documentary evidence that the relevant Ship:
|
(a) |
has been unconditionally delivered by the relevant Seller to, and accepted by, the relevant Borrower under the MOA to which that Borrower is a party and that the full purchase price payable and all other
sums due to that Seller under the MOA, other than the sums to be financed pursuant to the relevant Advance, have been paid to that Seller;
|
(b) |
is definitively and permanently registered in the name of the relevant Borrower under the relevant Approved Flag;
|
(c) |
is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents;
|
(d) |
maintains the Approved Classification with the relevant Approved Classification Society free of all overdue recommendations and conditions of the relevant Approved Classification Society; and
|
(e) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
3.4 |
Documents establishing that the relevant Ship will, as from the relevant Utilisation Date, be managed commercially by an Approved Commercial Manager or, as the case may be, an Approved Pool Manager (if
applicable) and managed technically by an 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 that Approved Technical Manager and that Approved Commercial Manager; and
|
(b) |
copies of that 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 (and, in the event that
such other documents required under the ISM Code and ISPS Code in relation to that Ship are issued in the name of the relevant Borrower immediately after the relevant Delivery Date, the Borrowers shall provide the same to the Facility
Agent upon receipt thereof).
|
3.5 |
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 |
Legal opinions
|
5 |
Other documents and evidence
|
5.1 |
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 relevant Utilisation Date.
|
From:
|
[●]
|
To:
|
Kroll Agency Services Limited
|
1 |
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2 |
We wish to borrow the Advance under Tranche [A][B][C][D] on the following terms:
|
Proposed Utilisation Date: |
[●] 2022 (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
$[●] or, if less, the Available Facility as follows:
|
3 |
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.
|
4 |
We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions
precedent) of the Agreement as they relate to the Advance is satisfied on the date of this Utilisation Request.
|
5 |
The net proceeds of the Advance should be [●].
|
6 |
This Utilisation Request is irrevocable.
|
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
|
[●]
|
|
authorised signatory for
|
[●]
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
To:
|
Kroll Agency Services Limited as Facility Agent
|
From:
|
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer
Certificate.
|
2 |
We refer to Clause 28.5 (Procedure for transfer) of the Agreement:
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance
Documents which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 28.5 (Procedure for
transfer) of the Agreement.
|
(b) |
The proposed Transfer Date is [●].
|
(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 38.2 (Addresses) of the Agreement are
set out in the Schedule.
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of
Existing Lenders) of the Agreement.
|
4 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5 |
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
6 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
[New Lender]
|
By: [●]
|
By: [●]
|
To: |
Kroll Agency Services Limited as Facility Agent and [●] 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")
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment
Agreement.
|
2 |
We refer to Clause 28.6 (Procedure for assignment):
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond
to that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule.
|
(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement
specified in the Schedule.
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
(d) |
All rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in the
Existing Lender's title and of any rights or equities which the 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 38.2 (Addresses) are set out in the
Schedule.
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of
Existing Lenders).
|
7 |
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 28.7 (Copy of Transfer
Certificate or Assignment Agreement to 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.
|
[Existing Lender]
|
[New Lender]
|
By: [●]
|
By: [●]
|
Ship name
|
Name
of the
Borrower owner
|
IMO No.
|
Type
|
DWT
|
Approved Flag
|
Approved Classification Society
|
Approved Classification
|
||||||||
"GODAM" to be renamed
“PAROSEA”
|
PAROSEA SHIPPING CO.
|
9297371
|
Aframax
|
113,553
|
Marshall Islands
|
Lloyd’s Register
|
+100 A1 Double Hull Tanker ESP,Ship Right (SDA,FDA,CM), *IWS, LI, Ice Class 1A FS, +LMC
IGS, UMS, CCS, NAV1, IBS, COW (LR), ETA, Green Passport, Part Higher Tensile Steel, PL(LR), SBT(LR),
SHipRight(BWMP (S), ES +1 (within 0.4L), PCWBT (06/2011), SERS, MCM, SCM)
|
||||||||
"MANDALA" to be renamed
“BLUESEA"
|
BLUESEA SHIPPING CO.
|
9297357
|
Aframax
|
113,553
|
Marshall Islands
|
Lloyd’s Register
|
*100A1 Double Hull Oil Tanker, ESP, ShipRight (SDA, FDA, CM), *IWS, LI, Ice Class 1A FS, *LMC
IGS, UMS, CCS, NAV1, IBS, COW(LR), ETA, Part Higher Tensile Steel, PL (LR), SBT (LR), ShipRight (BWMP (S), ES
+ 1 (within 0.4L), PCWBT (02/06), SERS, SCM)
|
||||||||
"THUNDERBOLT" to be renamed
“MINOANSEA”
|
.MINONASEA MARITIME CO.
|
9388742
|
LR2
|
108,817
|
Marshall Islands
|
American Bureau of Shipping
|
+A1, Oil Carrier, ESP, +AMS, +ACCU, VEC, SH, RES, SHCM, POT, ESP, CRC, CPP, RW,RRDA
|
||||||||
"TIMBERWOLF" to be renamed
“EPANASTASEA”
|
EPANASTASEA MARITIME CO.
|
9319686
|
LR2
|
109,647
|
Marshall Islands
|
Lloyd’s Register
|
+100A1 Double Hull Oil Tanker, ESP, ShipRight, (FDA,SDA,CM), *IWS, SPM, LI, +LMC IGS, UMS,
Shipright (SCM, MSPS), COW, SBT(LR) ,PL(LR) Part higher tensile steel, Shipright (IHM-EU+)
|
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 relevant Advance in accordance with Clause 5.4 (Lenders' participation)
|
One Business Day before the intended Utilisation Date.
|
SIGNED by Stavros Gyftakis
|
)
|
|
duly authorised
|
)
|
|
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
PAROSEA SHIPPING CO.
|
)
|
|
its:
|
)
|
/s/ Stavros Gyftakis
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou
|
Witness' address:
|
)
|
154 Vouliagmenis Avenue, 16674 Glyfada, Athens Greece
|
SIGNED by Stavros Gyftakis
|
)
|
|
duly authorised
|
)
|
|
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
BLUESEA SHIPPING CO.
|
)
|
/s/ Stavros Gyftakis
|
its:
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou
|
Witness' address:
|
)
|
154 Vouliagmenis Avenue, 16674 Glyfada, Athens Greece
|
SIGNED by Stavros Gyftakis
|
)
|
|
duly authorised
|
)
|
|
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
MINOANSEA MARITIME CO.
|
)
|
/s/ Stavros Gyftakis
|
its:
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou
|
Witness' address:
|
)
|
154 Vouliagmenis Avenue, 16674 Glyfada, Athens Greece
|
SIGNED by Stavros Gyftakis
|
)
|
|
duly authorised
|
)
|
|
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
/s/ Stavros Gyftakis
|
EPANASTASEA MARITIME CO.
|
)
|
|
its:
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou
|
Witness' address:
|
)
|
154 Vouliagmenis Avenue, 16674 Glyfada, Athens Greece
|
GUARANTOR
|
||
SIGNED by Stavros Gyftakis
|
)
|
|
duly authorised
|
)
|
|
as attorney-in-fact
|
)
|
|
for and on behalf of
|
)
|
|
UNITED MARITIME CORPORATION
|
)
|
/s/ Stavros Gyftakis
|
its:
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Theodora Mitropetrou
|
)
|
/s/ Theodora Mitropetrou
|
Witness' address:
|
)
|
154 Vouliagmenis Avenue, 16674 Glyfada, Athens Greece
|
ORIGINAL LENDERS
|
||
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
BLUE OCEAN ONSHORE FUND LP
|
)
|
|
By: Blue Ocean GP LLC
|
)
|
/s/ Vasiliki Georgopoulos
|
as its General Partner
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
/s/ Aikaterina Dimitriou
|
Witness' address:
|
)
|
WATSON FARLEY & WILLIAMS
|
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
BLUE OCEAN 1839 FUND LP
|
)
|
|
By: Blue Ocean GP LLC
|
)
|
/s/ Vasiliki Georgopoulos
|
as its General Partner
|
)
|
|
in the presence of:
|
)
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
/s/ Aikaterina Dimitriou
|
Witness' address:
|
)
|
WATSON FARLEY & WILLIAMS
|
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
BLUE OCEAN INCOME FUND LP
|
)
|
/s/ Vasiliki Georgopoulos
|
By: Blue Ocean GP LLC
|
)
|
|
as its General Partner
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
|
Witness' address:
|
)
|
/s/ Aikaterina Dimitriou
|
WATSON FARLEY & WILLIAMS
|
||
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
ENTRUST GLOBAL ICAV
|
)
|
|
for and on behalf of
|
)
|
/s/ Vasiliki Georgopoulos
|
BLUE OCEAN FUND
|
)
|
|
By: EnTrust Global Partners Offshore LP
|
)
|
|
as its Investment Advisor
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
/s/ Aikaterina Dimitriou
|
Witness' address:
|
)
|
WATSON FARLEY & WILLIAMS
|
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
BLUE OCEAN INVESTMENTS SPC
|
)
|
|
for and on behalf of
|
)
|
/s/ Vasiliki Georgopoulos
|
SEGREGATED PORTFOLIO ONE
|
)
|
|
By: EnTrust Global Partners Offshore LP
|
)
|
|
as its Investment Advisor
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
/s/ Aikaterina Dimitriou
|
Witness' address:
|
)
|
WATSON FARLEY & WILLIAMS
|
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
BLUE OCEAN INCOME FUND II LP
|
)
|
|
By: Blue Ocean GP LLC
|
)
|
/s/ Vasiliki Georgopoulos
|
as its General Partner
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
/s/ Aikaterina Dimitriou
|
Witness' address:
|
)
|
WATSON FARLEY & WILLIAMS
|
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
BLUE OCEAN OFFSHORE MASTER
|
)
|
|
FUND I LLC
|
)
|
/s/ Vasiliki Georgoulos
|
By: EnTrust Global Partners Offshore LP
|
)
|
|
as its Investment Advisor
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
/s/ Aikaterina Dimitriou
|
Witness' address:
|
)
|
WATSON FARLEY & WILLIAMS
|
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
BLUE OCEAN IDF SERIES OF THE SALI
|
)
|
/s/ Vasiliki Georgopoulos
|
MULTI-SERIES FUND, L.P.
|
||
By: EnTrust Global Partners Offshore LP
|
)
|
|
as its Investment Subadvisor
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
/s/ Aikaterina Dimitriou
|
Witness' address:
|
)
|
WATSON FARLEY & WILLIAMS
|
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
SIGNED by Vasiliki Georgopoulos
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
BO FR SPV I LP
|
)
|
|
By: EnTrust Global Ltd.
|
)
|
/s/ Vasiliki Georgopoulos
|
as its Investment Manager
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Aikaterina Dimitriou
|
)
|
/s/ Aikaterina Dimitriou
|
Witness' address:
|
)
|
WATSON FARLEY & WILLIAMS
|
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
FACILITY AGENT
|
||
SIGNED by Eliza-Elisavet Makri
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
KROLL AGENCY SERVICES LIMITED
|
)
|
/s/ Eliza-Elisavet Makri
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Eleni Antoniou
|
)
|
/s/ Eleni Antoniou
|
Witness' address:
|
)
|
SOLICITOR
|
WATSON FARLEY & WILLIAMS GREECE
|
||
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
||
SECURITY AGENT
|
||
SIGNED by Eliza-Elisavet Makri
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
/s/ Eliza- Elisavet Makri
|
KROLL TRUSTEE SERVICES LIMITED
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witness' name: Eleni Antoniou
|
)
|
/s/ Eleni Antoniou
|
Witness' address:
|
)
|
SOLICITOR
|
WATSON FARLEY & WILLIAMS GREECE
|
||
348 SYNGKROU AVENUE
|
||
17674 KALLITHEA
|
||
ATHENS - GREECE
|
To: |
PAROSEA SHIPPING CO.
BLUESEA SHIPPING CO.
MINOANSEA MARITIME CO.
EPANASTASEA MARITIME CO.
each of
Trust Company Complex
Ajeltake Road
Ajeltake Island
Majuro, MH96960
Republic of the Marshall Islands
(as joint and several Borrowers)
|
Cc: |
UNITED MARITIME CORPORATION
Trust Company Complex
Ajeltake Road
Ajeltake Island
Majuro, MH96960
Republic of the Marshall Islands
(as Guarantor and as Shareholder)
|
(a) |
the Facility Agreement, of which an amount of US$63,600,000 is outstanding by way of principal as at the date hereof; and
|
(b) |
the agreement of the Lenders to amend Part B of Schedule 1 of the Facility Agreement.
|
1 |
Agreement. The Finance Parties agree to the amendment of Part B of Schedule 1 of the Facility Agreement as per the terms of this letter and subject to the conditions set
out in paragraph 5 below.
|
2 |
Amendment to the Facility Agreement. In consideration of the agreement of the Finance Parties referred to in paragraph 1 of this letter and from the date on which the
Facility Agent (acting on the instructions of the Majority Lenders) notifies the Borrowers and the other Finance Parties in writing of the satisfaction of the conditions referred to in paragraph 5 below (the “CP Confirmation Date”), effective as of the date of the Facility Agreement, the Facility Agreement shall be, and shall be deemed by this letter to have been, amended as follows:
|
(a) |
by deleting Part B of Schedule 1 in its entirety and replacing it with Schedule 1 of this letter; and
|
(b) |
by construing all references in the Facility Agreement to “this Agreement”, “hereunder” and other like expressions as references to the Facility Agreement as amended and supplemented by this letter.
|
3 |
(a) |
the definition of, and references throughout each of the Finance Documents, the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to the Facility Agreement
and those Finance Documents as amended and supplemented by this letter; and
|
(b) |
by construing references throughout each of the Finance Documents to “this Agreement”, “this Deed”, “hereunder” and other like expressions as if the same referred to such Finance Documents as amended and
supplemented by this letter.
|
4 |
Facility Agreement and Finance Documents. The Borrowers and each other Transaction Obligor agree with the Finance Parties that all other provisions of the Facility
Agreement and the Finance Documents to which that Transaction Obligor is a party shall remain in full force and effect.
|
(a) |
a duly executed original of this letter duly signed by the Facility Agent and each Transaction Obligor;
|
(b) |
documentary evidence that the agent for service of process named in clause 48.2 (service of process) of the Facility Agreement has accepted its appointment for
service of process under this letter;
|
(c) |
a copy of any other Authorisation or other document, opinion or assurance which the Facility Agent (acting on the instructions of the Majority Lenders) reasonably considers to be necessary or desirable (if
it has notified the Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by this letter or for the validity and enforceability of any Finance Document as amended and supplemented by
this letter; and
|
(d) |
evidence that the fees, costs and expenses then due from the Borrowers pursuant to paragraph 7 below have been paid or will be paid by the CP Confirmation Date.
|
6 |
Further assurance. Clause 22.25 (further assurance) of the Facility Agreement applies to this letter as if it were expressly
incorporated in it with any necessary modifications.
|
7 |
Expenses. The provisions of clause 15 (costs and expenses) of the Facility Agreement apply to this letter as if it were expressly
incorporated in it with any necessary modifications.
|
8 |
Notices. Clause 38 (notices) of the Facility Agreement applies to this letter as if it were expressly incorporated in it with
any necessary modifications.
|
9 |
Counterparts. This letter 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 letter.
|
10 |
Designation of Finance Document. This letter is a Finance Document.
|
11 |
Governing Law. This letter and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law
and clauses 47 (governing law) and 48 (enforcement) of the Facility Agreement apply to this letter as if they were expressly incorporated in it with any
necessary modifications.
|
FACILITY AGENT
|
|||
/s/ Kelina Kantzou | |||
SIGNED by
|
|||
for and on behalf of
|
|||
KROLL AGENCY SERVICES LIMITED
|
|||
SECURITY AGENT
|
|||
/s/ Kelina Kantzou | |||
SIGNED by
|
|||
for and on behalf of
|
|||
KROLL TRUSTEE SERVICES LIMITED
|
|||
LENDERS
|
|||
/s/ Vasiliki Emiri | |||
SIGNED by
|
|||
for and on behalf of
|
|||
BLUE OCEAN ONSHORE FUND LP
|
|||
By: Blue Ocean GP LLC
|
|||
as its General Partner
|
|||
/s/ Vasiliki Emiri | |||
SIGNED by
|
|||
for and on behalf of
|
|||
BLUE OCEAN 1839 FUND LP
|
|||
By: Blue Ocean GP LLC
|
|||
as its General Partner
|
/s/ Vasiliki Emiri | |||
SIGNED by
|
|||
for and on behalf of
|
|||
BLUE OCEAN INCOME FUND LP
|
|||
By: Blue Ocean GP LLC
|
|||
as its General Partner
|
|||
|
/s/ Vasiliki Emiri | ||
SIGNED by
|
|||
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
|
|||
/s/ Vasiliki Emiri | |||
SIGNED by
|
|||
for and on behalf of
|
|||
BLUE OCEAN INVESTMENTS SPC
|
|||
for and on behalf of
|
|||
SEGREGATED PORTFOLIO ONE
|
|||
By: EnTrust Global Partners Offshore LP
|
|||
as its Investment Advisor
|
|||
/s/ Vasiliki Emiri | |||
SIGNED by
|
|||
for and on behalf of
|
|||
BLUE OCEAN INCOME FUND II LP
|
|||
By: Blue Ocean GP LLC
|
|||
as its General Partner
|
|||
|
/s/ Vasiliki Emiri | ||
SIGNED by
|
|||
for and on behalf of
|
|||
BLUE OCEAN OFFSHORE MASTER
|
|||
FUND I LLC
|
|||
By: EnTrust Global Partners Offshore LP
|
|||
as its Investment Advisor
|
/s/ Vasiliki Emiri | |||
SIGNED by
|
|||
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
|
|||
|
/s/ Vasiliki Emiri | ||
SIGNED by
|
|||
for and on behalf of
|
|||
BO FR SPV I LP
|
|||
By: EnTrust Global Ltd.
|
|||
as its Investment Manager
|
1 |
We acknowledge receipt of the above letter and confirm our agreement to its terms on this 26 October 2022.
|
2 |
We represent and warrant to the Finance Parties on the date of this acknowledgment and acceptance and on the CP Confirmation Date that:
|
(a) |
the representations and warranties contained in clause 18 (representations) of the Facility Agreement in respect of the Borrowers and the Guarantor are true and
correct on the date of the above letter as if all references in such clause to “this Agreement” or “this Deed” were references to the Facility Agreement as supplemented by the above letter;
|
(b) |
our obligations expressed to be assumed by us in the above letter are legal, valid, binding and enforceable obligations; and
|
(c) |
we agree that the Finance Documents to which we are a party shall remain in full force and effect and shall continue to stand as security for the obligations of each Transaction Obligor under the Facility
Agreement and the other Finance Documents (each as amended and supplemented by the above letter).
|
/s/ Stavros Gyftakis | /s/ Theodora Mitropetrou | ||||
Name: | Name: | ||||
Title:
|
Title:
|
||||
For and on behalf of
|
For and on behalf of
|
||||
PAROSEA SHIPPING CO.
|
UNITED MARITIME CORPORATION
|
||||
as Borrower
|
as Guarantor
|
||||
/s/ Stavros Gyftakis | /s/ Theodora Mitropetrou | ||||
Name:
|
Name:
|
||||
Title:
|
Title:
|
||||
For and on behalf of
|
For and on behalf of
|
||||
BLUESEA SHIPPING CO.
|
UNITED MARITIME CORPORATION
|
||||
as Borrower
|
as Shareholder
|
||||
|
/s/ Stavros Gyftakis | ||||
Name:
|
|||||
Title:
|
|||||
For and on behalf of
MINOANSEA MARITIME CO.
|
|||||
as Borrower
|
|||||
/s/ Stavros Gyftakis | |||||
Name | |||||
Title:
|
|||||
For and on behalf of
|
|||||
EPANASTASEA MARITIME CO.
|
|||||
as Borrower
|
Name of Original Lender
|
Commitment
|
Address for Communication
|
Blue Ocean Onshore Fund LP
|
$27,048,528
|
Blue Ocean Onshore Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com /odonnerstein@entrustglobal.com/ mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein / Matthew Lux
|
Blue Ocean 1839 Fund LP
|
$13,996,303
|
Blue Ocean 1839 Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com /odonnerstein@entrustglobal.com/ mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein / Matthew Lux
|
Blue Ocean Income Fund LP
|
$7,767,560
|
Blue Ocean Income Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
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
|
$5,377,810
|
EnTrust Global ICAV
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
|
Email: sengh@entrustglobal.com /odonnerstein@entrustglobal.com/ mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein / Matthew Lux
|
||
Blue Ocean Investments SPC, for and on behalf of Segregated Portfolio One
Blue Ocean Income Fund II LP
Blue Ocean Offshore Master Fund I LLC
|
$1,602,983
$2,700,260
$623,760
|
Blue Ocean Investments SPC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com /odonnerstein@entrustglobal.com/ mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein / Matthew Lux
Blue Ocean Income Fund II LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com /odonnerstein@entrustglobal.com/ mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein / Matthew Lux
Blue Ocean Offshore Master Fund I LLC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com /odonnerstein@entrustglobal.com/ mlux@entrustglobal.com
Attention: Svein Engh / Omer Donnerstein / Matthew Lux
|
Clause
|
Page
|
|
1
|
Definitions and Interpretation
|
2
|
2
|
Agreement of the Finance Parties and Conditions Precedent
|
5
|
3
|
Representations
|
6
|
4
|
Amendments to Facility Agreement and Other Finance Documents
|
7
|
5
|
Further Assurance
|
11
|
6
|
Instructions
|
12
|
7
|
Fees
|
12
|
8
|
Costs and Expenses
|
12
|
9
|
Notices
|
12
|
10
|
Counterparts
|
12
|
11
|
Governing Law
|
12
|
12
|
Enforcement
|
12
|
Schedules
|
||
Schedule 1
|
The Original Lenders |
14
|
Schedule 2
|
Conditions Precedent |
17
|
Execution
|
|
Execution Pages
|
18
|
(1) |
MINOANSEA MARITIME 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 C”)
|
(2) |
EPANASTASEA MARITIME 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 D”)
|
(3) |
UNITED MARITIME CORPORATION, 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 and shareholder (in both capacities, the “Guarantor”)
|
(4) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders (the “Original
Lenders”)
|
(5) |
KROLL AGENCY SERVICES LIMITED as agent of the other Finance Parties (the “Facility Agent”)
|
(6) |
KROLL TRUSTEE SERVICES LIMITED as security agent for the Secured Parties (the “Security Agent”)
|
(A) |
By the Facility Agreement, the Lenders agreed to make available to Parosea Shipping Co. (“Borrower A”), Bluesea
Shipping Co. (“Borrower B”), Borrower C and Borrower D and together with Borrower A, Borrower B and Borrower C, the “Original Borrowers”) a facility of (originally) up to $63,600,000, of which an amount of $31,200,000 is outstanding by way
of principal as at the date hereof.
|
(B) |
Pursuant to the terms of a deed of release dated 8 November 2022 and a deed of release dated 1 December 2022, respectively, the Finance Parties agreed to release Borrower
A and Borrower B from their obligations, respectively, under the relevant Finance Documents to which each of Borrower A and Borrower B is a party.
|
(C) |
Borrower C and Borrower D (together, the “Borrowers”) have advised the Finance Parties that Borrower C intends to proceed with the sale of Ship C (the “Sale”).
|
(D) |
Under clause 22.13 (disposals) of the Facility Agreement, a Borrower is allowed to sell its Ship provided that the Borrowers comply with the prepayment obligations in clause
7 (prepayment and cancellation) of the Facility Agreement.
|
(E) |
Pursuant to clause 7.4 (mandatory prepayment on sale or Total Loss) of the Facility Agreement, the Borrowers shall use the proceeds from the Sale (the “Sale Proceeds”) in such amount as may be necessary in order to prepay the Relevant Amount such amount to be applied on the Relevant Date towards prepayment the Loan in accordance with paragraph (d) of that
clause 7.4 (mandatory prepayment on sale or Total Loss) of the Facility Agreement.
|
(F) |
The Borrowers have requested that the Finance Parties consent to:
|
(i) |
the Sale;
|
(ii) |
waive the obligation of the Borrowers to prepay the Loan in accordance with clause 7.4 (mandatory prepayment on sale or Total Loss) of the Facility Agreement during the
Waiver Period in accordance with the terms of this Agreement and to continue to make available that part of the Loan for the purpose of partially financing the acquisition cost of the New Ships (as defined below);
|
(iii) |
the Borrowers using the remainder of the Sale Proceeds after deduction of the aggregate of the Allocated Amount, the Interest Amount and any other amounts payable by the Borrower under the Facility Agreement in
connection with the Sale (including any legal fees), towards payment of dividends distribution; and
|
(iv) |
the consequential amendments and/or variations of certain other provisions of the Facility Agreement and the other Finance Documents in connection with those matters,
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
any New Mortgage;
|
(b) |
any New General Assignment;
|
(c) |
any New Account Security;
|
(d) |
any New Shares Security;
|
(e) |
any New Charter Assignment; and
|
(f) |
any New Manager’s Undertaking.
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Facility Agreement
|
1.4 |
Agreed forms of new, and supplements to, Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Second Supplemental 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 44.2 (all lender matters)
of the Facility Agreement applies, all the Lenders.
|
1.5 |
Designation as a Finance Document
|
1.6 |
Third party rights
|
(a) |
Unless provided to the contrary in a Finance Document, a person who is not a Party has no right under the Third Parties Act to enforce or to enjoy the benefit of any term of this Second Supplemental Agreement.
|
(b) |
Subject to clause 44.3 (other exceptions) of the Facility Agreement 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 Second Supplemental Agreement at any time.
|
2 |
AGREEMENT OF THE FINANCE PARTIES AND CONDITIONS PRECEDENT
|
2.1 |
The Finance Parties agree to the Requests provided that:
|
(a) |
immediately following the sale of Ship C, the Sale Proceeds are applied in the following manner:
|
(i) |
in payment of the Interest Amount; and
|
(ii) |
in payment of all costs and expenses relating to the sale of Ship C (including legal fees); and
|
(iii) |
an amount of $15,200,000 (the “Allocated Amount”) from the Sale Proceeds is remitted directly from the Escrow Account to the Earnings Account of Borrower C and such Allocated
Amount is credited and remains blocked in that Earnings Account in favour of the Security Agent according to the terms of this Agreement;
|
(iv) |
an amount of $7,000,000 from such Allocated Amount (the “New Ship A Allocated Amount A”) remains blocked in favour of the Security Agent until the date on which the New
Security Documents relating to the New Ship A have been executed and the relevant New Mortgage has been registered with first priority over the New Ship A in favour of the Security Agent; and
|
(v) |
an amount of $8,200,000 from such Allocated Amount (the “New Ship B Allocated Amount B”) remains blocked in favour of the Security Agent until the New Security Documents
relating to the New Ship B have been executed and the relevant New Mortgage has been registered with first priority over the New Ship B in favour of the Security Agent;
|
(b) |
any Security in respect of Ship C (other than the relevant Mortgage over Ship C) will not be released and Borrower C will remain an Obligor under the Facility Agreement until the New Security Documents in relation
to the New Ships have been executed in favour of the Security Agent; and
|
2.2 |
The Facility Agent shall notify the Borrowers and the other Finance Parties promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause 2.1 above.
|
2.3 |
In the event that a New Owner (or either of them) does not accede to the Amended Facility Agreement and the New Security Documents relating to its New Ship are not duly executed in favour of the Security Agent until
the last day of the Waiver Period in accordance with the terms of the Deed of Accession Amendment and Restatement, the relevant part of the Allocated Amount which remains credited in the Earnings Account of Borrower C will be applied
immediately towards partial prepayment of the Loan in accordance with paragraph (d) of clause 7.4 (mandatory prepayment on sale or Total Loss) of the Amended Facility Agreement.
|
2.4 |
Without prejudice to Clause 2.3 above, if, on the last day of the Waiver Period, part of the Allocated Amount has been utilised for the financing of one New Ship (the “New Ship Loan”)
and the remaining Allocated Amount remains unutilised and the second New Ship is not financed under the Amended Facility Agreement:
|
(a) |
the Facility Agent may, in its discretion acting with the authorisation of the Majority Lenders, by not less than three days’ notice to the Borrowers, cancel such New Ship Loan; and
|
(b) |
the Borrowers shall prepay such New Ship Loan together with any accrued interest and any other amounts due and payable under the Finance Documents.
|
2.5 |
As conditions subsequent, the Borrowers shall on the earlier of (i) the Accession Date and (ii) 16 January 2023 deliver to the order of the Facility Agent:
|
(a) |
a duly executed original of the Mortgage Addendum; and
|
(b) |
documentary evidence that the Mortgage Addendum has been duly registered or recorded (as applicable) in accordance with the laws of the jurisdiction of the Approved Flag of Ship D.
|
3 |
REPRESENTATIONS
|
3.1 |
Facility Agreement representations
|
3.2 |
Finance Document representations
|
4 |
AMENDMENTS TO FACILITY AGREEMENT AND OTHER FINANCE DOCUMENTS
|
4.1 |
Specific amendments to the Facility Agreement
|
(a) |
the definition “Security Documents” in clause 1.1 (definitions) of the Facility Agreement shall be amended to include the Account
Pledge Amendment;
|
(b) |
the definition of “Interest Rate” in clause 1.1 (definitions) of the Facility Agreement shall be deleted and replaced as follows:
|
(a) |
7.90 per cent. per annum; and
|
(b) |
in respect of Tranche C, 9 per cent. per annum during the period commencing on the Sale Date (inclusive) and ending on the last day of the Security Period.”;
|
(c) |
the following definitions will be inserted in clause 1.1 (definitions) of the Facility Agreement in the correct alphabetical order:
|
(a) |
any New Mortgage;
|
(b) |
any New General Assignment;
|
(c) |
any New Account Security;
|
(d) |
any New Shares Security;
|
(e) |
any New Charter Assignment; and
|
(f) |
any New Manager’s Undertaking.”;
|
(d) |
an additional paragraph (f) shall be added to clause 9 (Interest Periods) of the Facility Agreement, which shall read as follows:
|
(i) |
the Interest Period of Tranche C as on the Effective Date, shall end on the Sale Date;
|
(ii) |
the next Interest Period of Tranche C shall start on the Sale Date and end on the last day of the Interest Period applicable to Tranche D; and
|
(iii) |
each subsequent Interest Period of Tranche C shall start on the last day of the preceding Interest Period.”;
|
(e) |
paragraph (a) of clause 10.2 (deferred fee) of the Facility Agreement shall be amended as follows:
|
“(a) |
The Borrowers shall pay to the Facility Agent a non-refundable deferred fee (for the account of the Lenders pro-rata to their Commitments);
|
(i) |
in respect of each Tranche (other than Tranche C) in an amount equal to 2 per cent. of the Commitments as at the date of this Agreement applicable to that Tranche and in each case on the relevant Payment Date; and
|
(ii) |
in respect of Tranche C in an amount equal to 2.5 per cent. of the Commitments as at the date of this Agreement applicable to that Tranche on the relevant Payment Date.”;
|
(f) |
“(b) |
If the New Security Documents in respect of the New Ships are not executed and, as the case may be, registered in favour of the Security Agent by the end of the Waiver Period pursuant to the terms of the Deed of
Accession Amendment and Restatement, the Borrowers shall, on demand by the Facility Agent in its discretion acting with the authorisation of the Majority Lenders, immediately apply the Allocated Amount (or any part thereof) towards prepayment
of the Loan in accordance with paragraph (d) of Clause 7.4 (Mandatory prepayment on sale or Total Loss); and
|
(c) |
without prejudice to paragraph (b) above, if, on the last day of the Waiver Period, part of the Allocated Amount has been utilised for the financing of one New Ship (the “New Ship
Loan”) and the remaining Allocated Amount (or any part thereof) remains unutilised and the second New Ship is not financed under the Amended Facility Agreement:
|
(i) |
the Facility Agent may, in its discretion acting with the authorisation of the Majority Lenders, by not less than three days’ notice to the Borrowers, cancel such New Ship Loan; and
|
(ii) |
the Borrowers shall prepay such New Ship Loan together with any accrued interest and any other amounts due and payable under the Finance Documents.
|
(g) |
an additional clause 22.26 (Maintenance of cash collateral) shall be added which shall read as follows:
|
4.2 |
Amendments to the Finance Documents (other than the Facility Agreement)
|
(a) |
the definition of, and references throughout each of the Finance Documents to, the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to the Facility Agreement and
those Finance Documents as amended and supplemented by this Second Supplemental Agreement; and
|
(b) |
by construing references throughout each of the Finance Documents to “this Agreement”, “this Deed”, “hereunder and other like expressions as if the same referred to such Finance Documents as amended and supplemented
by this Second Supplemental Agreement.
|
4.3 |
Obligor Confirmation
|
(a) |
confirms its acceptance of the amendments effected by this Second Supplemental Agreement;
|
(b) |
agrees that it is bound as an Obligor (as defined in the Amended Facility Agreement);
|
(c) |
confirms that the definition of, and references throughout each of the Finance Documents to, the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to the Facility
Agreement and those Finance Documents as amended and supplemented by this Second Supplemental Agreement;
|
(d) |
(if it is a Guarantor) confirms that its guarantee and indemnity:
|
(i) |
continues to have full force and effect on the terms of the Amended Facility Agreement; and
|
(ii) |
extends to the obligations of the relevant Obligors under the Finance Documents as amended and supplemented by this Second Supplemental Agreement.
|
4.4 |
Security confirmation
|
(a) |
any Security created by it under the Finance Documents extends to the obligations of the relevant Obligors under the Finance Documents as amended and supplemented by this Second Supplemental Agreement;
|
(b) |
the obligations of the relevant Obligors under the Amended Facility Agreement are included in the Secured Liabilities (as defined in the Security Documents to which it is a party);
|
(c) |
the Security created under the Finance Documents continues in full force and effect on the terms of the respective Finance Documents; and
|
(d) |
to the extent that this confirmation creates a new Security, such Security shall be on the terms of the Security Documents in respect of which this confirmation is given.
|
4.5 |
Finance Documents to remain in full force and effect
|
(a) |
in the case of the Facility Agreement as amended and supplemented pursuant to Clause 4.1 (Specific amendments to the Facility Agreement) and such further or consequential modifications as may be necessary to make the same consistent with, and to give full effect to, the terms of this Second Supplemental Agreement;
|
(b) |
in the case of the each Finance Document (other than the Facility Agreement) as amended and supplemented pursuant to Clause 4.2 (Amendments to Finance
Documents) and such further or consequential modifications as may be necessary to make the same consistent with, and to give full effect to, the terms of this Second Supplemental Agreement;
|
(c) |
each Finance Document and the applicable provisions of this Second Supplemental Agreement will be read and construed as one document; and
|
(d) |
except to the extent expressly waived by the amendments effected by this Second Supplemental Agreement, no waiver is given by this Second Supplemental Agreement and the Lenders expressly reserve all their rights and
remedies in respect of any breach of or other Default under the Finance Documents.
|
5 |
FURTHER ASSURANCE
|
6 |
INSTRUCTIONS
|
7 |
FEES
|
8 |
COSTS AND EXPENSES
|
9 |
NOTICES
|
10 |
COUNTERPARTS
|
11 |
GOVERNING LAW
|
12 |
ENFORCEMENT
|
12.1 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Second Supplemental Agreement (including a dispute regarding the existence, validity or termination
of this Second Supplemental Agreement or any non-contractual obligation arising out of or in connection with this Second Supplemental Agreement) (a “Dispute”).
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
To the extent allowed by law, this Clause 12.1 (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.
|
12.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints Messrs Shoreside Agents Ltd, presently at 5 St Helen’s Place, London EC3A 6AB (T: +44 (0)20 3771 8869, M: + 44 (0) 7591 440086, Fax: +44 (0)20 3771 8870, attention: Andrew Johnson)
as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of all the Obligors) must immediately (and in any event within
five 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.
|
Name of Original Lender
|
Commitment
|
Address for Communication
|
Blue Ocean Onshore Fund LP
|
$27,048,528
|
Blue Ocean Onshore Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com /odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean 1839 Fund LP
|
$13,996,303
|
Blue Ocean 1839 Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean Income Fund LP
|
$7,767,560
|
Blue Ocean Income Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
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
|
$5,377,810
|
EnTrust Global ICAV
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean Investments SPC, for and on behalf of Segregated Portfolio One
Blue Ocean Income Fund II LP
Blue Ocean Offshore Master Fund I LLC
|
$1,602,983
$2,700,260
$623,760
|
Blue Ocean Investments SPC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
Blue Ocean Income Fund II LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
Blue Ocean Offshore Master Fund I LLC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
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.
BO FR SPV I LP
|
$2,700,260
$1,782,536
|
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
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
BO FR SPV I LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
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1 |
Obligors
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2 |
Security
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2.1 |
A duly executed original of this Agreement.
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2.2 |
A duly executed original of the Account Pledge Amendment (and of each document to be delivered under it).
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3 |
Legal opinions
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3.1 |
A legal opinion of Watson Farley Williams, Greece, legal advisers to the Facility Agent and the Security Agent in England, substantially in the form distributed to the Lenders before signing this Second
Supplemental Agreement.
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3.2 |
If an 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 Second Supplemental Agreement.
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3.3 |
Legal opinions of the legal advisers to the Facility Agent and the Security Agent in such other relevant jurisdictions as the Facility Agent may require.
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4 |
Other documents and evidence
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4.1 |
A certificate signed by two directors of each Borrower confirming that as at the date of this Second Supplemental Agreement no Default has occurred and is continuing or is reasonably likely to result from the
occurrence of the Effective Date.
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4.2 |
Evidence that any process agent referred to in Clause 12.2 (Service of process), if not an Obligor, has accepted its appointment.
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4.3 |
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 this Second Supplemental Agreement, or for the validity and enforceability of any Finance Document as amended and supplemented by this Second Supplemental Agreement.
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4.4 |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 6 (Fees) and Clause 7 (Costs and Expenses)
have been paid or will be paid by the Effective Date.
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4.5 |
Evidence that the Allocated Amount has been transferred or, if the Sale Date is completed outside the business hours of the account bank where the Escrow Account is held, will be transferred on the next Business
Day after the Sale Date, to the Earnings Account of Borrower C and shall remain blocked until the Facility Agent directs otherwise.
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4.6 |
Evidence that the Interest Amount have been paid or will be paid by the Effective Date.
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BORROWERS
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SIGNED by Stavros Gyftakis
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)
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duly authorised
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)
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as attorney-in-fact
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)
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/s/ Stavros Gyftakis
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for and on behalf of
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)
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MINOANSEA MARITIME CO.
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Maria Moschopoulou
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)
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/s/ Maria Moschopoulou
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Witness’ address:
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)
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154 Vouliagmenis Avenue
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16674 Glyfada, Greece
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SIGNED by Stavros Gyftakis
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)
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duly authorised
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)
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as attorney-in-fact
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)
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for and on behalf of
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)
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/s/ Stavros Gyftakis
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EPANASTASEA MARITIME CO.
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Maria Moschopoulou
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)
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/s/ Maria Moschopoulou
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Witness’ address:
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)
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154 Vouliagmenis Avenue
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16674 Glyfada, Greece
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GUARANTOR AND SHAREHOLDER
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SIGNED by Stavros Gyftakis
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)
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duly authorised
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)
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as attorney-in-fact
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)
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/s/ Stavros Gyftakis
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for and on behalf of
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)
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UNITED MARITIME CORPORATION
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Maria Moscopoulou
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)
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/s/ Maria Moschopoulou
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Witness’ address:
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)
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154 Vouliagmenis Avenue
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16674 Glyfada, Greece
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ORIGINAL LENDERS
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SIGNED by Charikleia Mavromati
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)
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duly authorised
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)
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for and on behalf of
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)
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BLUE OCEAN ONSHORE FUND LP
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)
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/s/ Charikleia Mavromati
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By: Blue Ocean GP LLC
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)
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as its General Partner
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Stavroula Giannopoulou
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)
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/s/ Stavroula Giannopoulou
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Witness’ address:
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)
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ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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348 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS GREECE
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SIGNED by Charikleia Mavromati
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) | |
duly authorised
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)
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for and on behalf of
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)
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BLUE OCEAN 1839 FUND LP
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)
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/s/ Charikleia Mavromati
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By: Blue Ocean GP LLC
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)
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as its General Partner
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Stavroula Giannopoulou
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)
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/s/ Stavroula Giannopoulou
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Witness’ address:
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)
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ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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348 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS GREECE
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SIGNED by Charikleia Mavromati
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) | |
duly authorised
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)
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for and on behalf of
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)
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BLUE OCEAN INCOME FUND LP
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)
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/s/ Charikleia Mavromati
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By: Blue Ocean GP LLC
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)
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as its General Partner
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Stavroula Giannopoulou
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)
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/s/ Stavroula Giannopoulou
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Witness’ address:
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)
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ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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348 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS GREECE
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SIGNED by Charikleia Mavromati
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)
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duly authorised
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)
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for and on behalf of
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)
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ENTRUST GLOBAL ICAV
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)
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for and on behalf of
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)
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/s/ Charikleia Mavromati
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BLUE OCEAN FUND
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)
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By: EnTrust Global Partners Offshore LP
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)
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as its Investment Advisor
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Stavroula Giannopoulou
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)
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/s/ Stavroula Giannopoulou
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Witness’ address:
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)
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ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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348 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS GREECE
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SIGNED by Charikleia Mavromati
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)
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duly authorised
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)
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for and on behalf of
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)
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BLUE OCEAN INVESTMENTS SPC
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)
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/s/ Charikleia Mavromati
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for and on behalf of
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)
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SEGREGATED PORTFOLIO ONE
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)
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By: EnTrust Global Partners Offshore LP
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)
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as its Investment Advisor
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Stavroula Giannopoulou
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)
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/s/ Stavroula Giannopoulou
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Witness’ address
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)
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ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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348 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS GREECE
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SIGNED by Charikleia Mavromati
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)
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duly authorised
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)
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for and on behalf of
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)
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BLUE OCEAN INCOME FUND II LP
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)
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/s/ Charikleia Mavromati
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By: Blue Ocean GP LLC
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)
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as its General Partner
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Stavroula Giannopoulou
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)
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/s/ Stavroula Giannopoulou
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Witness’ address:
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)
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ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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348 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS GREECE
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SIGNED by Charikleia Mavromati
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)
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duly authorised
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)
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for and on behalf of
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)
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BLUE OCEAN OFFSHORE MASTER
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)
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/s/ Charikleia Mavromati
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FUND I LLC
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)
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By: EnTrust Global Partners Offshore LP
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)
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as its Investment Advisor
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Stavroula Giannopoulou
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)
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/s/ Stavroula Giannopoulou
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Witness’ address:
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)
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ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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348 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS GREECE
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SIGNED by Charikleia Mavromati
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)
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duly authorised
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)
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for and on behalf of
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)
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BLUE OCEAN IDF SERIES OF THE SALI
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)
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/s/ Charikleia Mavromati
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MULTI-SERIES FUND, L.P.
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By: EnTrust Global Partners Offshore LP
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)
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as its Investment Subadvisor
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: Stavroula Giannopoulou
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)
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/s/ Stavroula Giannopoulou
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Witness’ address:
|
)
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ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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||
348 SYNGROU AVENUE
|
||
17674 KALLITHEA
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||
ATHENS GREECE
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SIGNED by Charikleia Mavromati
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)
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duly authorised
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)
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for and on behalf of
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)
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BO FR SPV I LP
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)
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/s/ Charikleia Mavromati
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By: EnTrust Global Ltd.
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)
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as its Investment Manager
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)
|
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in the presence of:
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)
|
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Witness’ signature:
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)
|
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Witness’ name: Stavroula Giannopoulou
|
)
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/s/ Stavroula Giannopoulou
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Witness’ address:
|
)
|
ATTORNEY-AT-LAW
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WATSON FARLEY & WILLIAMS GREECE
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348 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS GREECE
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FACILITY AGENT
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SIGNED by STEFANOS-MAX KONSTANTINIDIS
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)
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duly authorised
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)
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for and on behalf of
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)
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KROLL AGENCY SERVICES LIMITED
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)
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/s/ STEFANOS – MAX KONSTANTINIDIS
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: EVGENIA ANASTASOPOULOU
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)
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/s/ EVGENIA ANASTASOPOULOU
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Witness’ address:
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)
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348 SYNGROU AVE. 17674 KALLITHEA
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ATHENS, GREECE
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SECURITY AGENT
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SIGNED by STEFANOS-MAX KONSTANTINIDIS
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)
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duly authorised
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)
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for and on behalf of
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)
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/S/ STEFANOS – MAX KONSTANTINIDIS
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KROLL TRUSTEE SERVICES LIMITED
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)
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in the presence of:
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)
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Witness’ signature:
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)
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Witness’ name: EVGENIA ANASTASOPOULOU
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)
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/S/ EVGENIA ANASTASOPOULOU
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Witness’ address:
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)
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348 SYNGROU AVE. 17674 KALLITHEA
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ATHENS, GREECE
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Clause
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Page
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1
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Definitions and Interpretation
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3
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2
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Agreement of the Finance Parties
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6
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3
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Conditions Precedent
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6
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4
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Representations and Warranties
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7
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5
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Amendment and Restatement of Facility Agreement
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7
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6
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Accession and Assumption
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9
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7
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Existing Obligor Confirmation
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9
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8
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Security
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10
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9
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Further Assurance
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10
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10
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Instructions
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10
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11
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Fees
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10
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12
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Costs and Expenses
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11
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13
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Incorporation of Amended and Restated Facility Agreement Provisions
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11
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14
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Supplemental
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11
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15
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Law and Jurisdiction
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11
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Schedule 1 The Original Lenders
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13
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Schedule 2 Conditions Precedent
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16
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Execution Pages
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18
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(1) |
MINOANSEA MARITIME 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 (the “Existing Borrower A”)
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(2) |
EPANASTASEA MARITIME 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 (the “Existing Borrower B” and together with the Existing Borrower A, the “Existing Borrowers”)
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(3) |
GOOD MARITIME CO., a corporation incorporated in the Republic of Liberia whose registered address is at 80 Broad Street, Monrovia,
Liberia as replacement borrower (the “Replacement Borrower A”)
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(4) |
TRADERS MARITIME CO., a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Marshall Islands MH 96960 as replacement borrower (the “Replacement Borrower B” and together with Replacement Borrower A, the “Replacement Borrowers” and each a “Replacement Borrower”)
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(5) |
UNITED MARITIME CORPORATION, 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 and shareholder (in both capacities, the “Guarantor”)
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(6) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders (the “Original
Lenders”)
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(7) |
KROLL AGENCY SERVICES LIMITED (previously Lucid Agency Services Limited) as agent of the other Finance Parties (the “Facility Agent”)
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(8) |
KROLL TRUSTEE SERVICES LIMITED (previously Lucid Trustee Services Limited) as security agent for the Secured Parties (the “Security Agent”)
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(A) |
By the facility agreement dated 8 August 2022 (the “Original Facility Agreement”) (as amended and
supplemented by a supplemental agreement dated 26 October 2022 (the “Supplemental Agreement”) and as further amended and supplemented
by a second supplemental agreement dated 21 December 2022 (the “Second Supplemental Agreement”)), the Lenders agreed to make available
to Parosea Shipping Co., Bluesea Shipping Co. and the Existing Borrowers, as joint and several borrowers, a facility of (originally) up to $63,600,000, of which an amount of $31,200,000 is
outstanding by way of principal as at the date hereof.
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(B) |
Pursuant to the terms of a deed of release dated 8 November 2022 and a deed of release dated 1 December 2022, respectively, the Finance Parties agreed to
release Parosea Shipping Co. and Bluesea Shipping Co. from their obligations, respectively, under the relevant Finance Documents to which each was a party.
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(C) |
The Existing Borrowers subsequently advised the Finance Parties that Existing Borrower A intended to proceed with the sale of Ship C (the “Sale”).
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(D) |
Under clause 22.13 (disposals) of the Facility Agreement, a Borrower is allowed to sell its Ship provided that the Borrowers comply with the prepayment obligations in
clause 7 (prepayment and cancellation) of the Facility Agreement.
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(E) |
Pursuant to clause 7.4 (mandatory prepayment on sale or Total Loss) of the Facility Agreement, the Borrowers shall use the proceeds from the Sale (the “Sale Proceeds”) in such amount as may be necessary in order to prepay the Relevant Amount, such amount to be applied on the Relevant Date towards prepayment the Loan in accordance with paragraph (d) of
that clause 7.4 (mandatory prepayment on sale or Total Loss) of the Facility Agreement.
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(F) |
Pursuant to the terms of the Second Supplemental Agreement, the Finance Parties agreed, inter alia, to (i) the Sale, (ii) waive the obligation of the Borrowers to prepay the Loan in accordance with clause 7.4
(mandatory prepayment on sale or Total Loss) of the Facility Agreement during the Waiver Period, (iii) to permit the Sale Proceeds (after deduction of the aggregate Allocated Amount (as defined
below), the Interest Amount and any other amounts payable by the Borrowers under the Facility Agreement in connection with the Sale (including legal fees)), to be paid to the Borrowers towards payment of dividends distribution and (iv)
continue to make available that part of the Loan for the purpose of partially financing the acquisition cost of the New Ships (as defined below) provided that, inter alia, out of the Sale Proceeds:
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(i) |
an amount of $15,200,000 (the “Allocated Amount”) be remitted directly from the Escrow Account to the Earnings Account of Existing Borrower A and such Allocated Amount
remain credited and blocked in that Earnings Account in favour of the Security Agent until the relevant Release Date (as defined below);
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(ii) |
an amount of $7,000,000 (the “New Ship A Allocated Amount A”) from such Allocated Amount remain blocked in favour of the Security Agent until the date on which the New
Security Documents relating to New Ship A have been executed and the relevant New Mortgage has been registered with first priority over New Ship A in favour of the Security Agent (the “Release Date A”);
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(iii) |
an amount of $8,200,000 (the “New Ship B Allocated Amount B”) from such Allocated Amount remain blocked in favour of the Security Agent until the date on which the New
Security Documents relating to the New Ship B have been executed and the relevant New Mortgage has been registered with first priority over the New Ship B in favour of the Security Agent (the “Release Date B”);
and
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(iv) |
any Security in respect of Ship C (other than the relevant Mortgage over Ship C) would not be released and Existing Borrower A would remain an Obligor under the Facility Agreement until the New Security
Documents in relation to the New Ships have been executed in favour of the Security Agent.
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(G) |
Further to the terms of the Second Supplemental Agreement, the Existing Borrowers have requested (the “Request”) that the Lenders consent to, inter alia, the following:
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(i) |
the Replacement Borrowers acceding to the Facility Agreement as Borrowers and to certain of the other Finance Documents and assuming jointly and severally with the Existing Borrowers, the Existing Borrowers’
obligations thereunder;
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(ii) |
the release of the New Ship A Allocated Amount A to Existing Borrower A on Release Date A;
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(iii) |
the release of the New Ship B Allocated Amount B to Existing Borrower A on Release Date B; and
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(iv) |
the release of any Security in respect of Ship C not previously released at the time of the Sale and the release of Existing Borrower A from the Facility Agreement on Release Date B.
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(H) |
This Deed sets out the terms and conditions on which the Finance Parties shall agree, with effect on and from the Effective Date, to:
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(i) |
the Request; and
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(ii) |
the amendment and restatement of the Facility Agreement and any consequential amendments and/or variations of certain other provisions of the Facility Agreement subject to the terms and conditions of this
Deed (the “Consequential Amendments”).
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1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
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(a) |
in relation to the purchase of New Ship A, the memorandum of agreement dated December 27, 2022, as from time to time may be further amended or supplemented, and made between (i) Replacement Borrower A as
buyer and (ii) the New Seller A, as seller; and
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(b) |
in relation to the purchase of New Ship B, the memorandum of agreement dated December 27, 2022, as from time to time may be further amended or supplemented, and made between (i) Replacement Borrower B as
buyer and (ii) the New Seller B, as seller.
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(a) |
any New Mortgage;
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(b) |
any New General Assignment;
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(c) |
any New Account Security;
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(d) |
any New Shares Security;
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(e) |
any New Charter Assignment; and
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(f) |
any New Manager’s Undertaking.
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1.2 |
Defined expressions
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1.3 |
Application of construction and interpretation provisions of Facility Agreement
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1.4 |
Designation as a Finance Document
|
1.5 |
Authorisation of Facility Agent
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1.6 |
Third party rights
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(a) |
Unless provided to the contrary in a Finance Document, a person who is not a Party has no right under the Third Parties Act to enforce or to enjoy the benefit of any term of this Deed.
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(b) |
Subject to clause 44.3 (other exceptions) of the Facility Agreement 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 Deed at any time.
|
2 |
AGREEMENT OF THE FINANCE PARTIES
|
2.1 |
The Finance Parties agree subject to and upon the terms and conditions set out in Clause 3 (Conditions Precedent) of this Deed, to:
|
(a) |
the Request; and
|
(b) |
the Consequential Amendments.
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2.2 |
The agreement of the parties to this Deed contained in this Clause 2 (Agreement of the Finance Parties) shall have effect on and from the Effective Date.
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2.3 |
In the event that the New Security Documents relating to each New Ship are not duly executed in favour of the Security Agent until the last day of the Waiver Period in accordance with the terms of this Deed
and the Amended and Restated Facility Agreement, the relevant part of the Allocated Amount which remains credited in the Earnings Account of Existing Borrower A will be applied immediately towards partial prepayment of the Loan in
accordance with paragraph (d) of clause 7.4 (mandatory prepayment on sale or Total Loss) of the Amended and Restated Facility Agreement.
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2.4 |
Without prejudice to Clause 2.3 above, if, on the last day of the Waiver Period, part of the Allocated Amount has been utilised for the financing of one New Ship (the “New
Tranche”) and the remaining Allocated Amount (or any part thereof) remains unutilised and the second New Ship is not financed under the Amended and Restated Facility Agreement:
|
(a) |
the Facility Agent may, in its discretion acting with the authorisation of the Majority Lenders, by not less than three days’ notice to the Borrowers, demand prepayment of the relevant New Tranche; and
|
(b) |
the Borrowers shall prepay such New Tranche together with any accrued interest and any other amounts due and payable under the Finance Documents.
|
3 |
CONDITIONS PRECEDENT
|
3.1
|
General
|
(a) |
no Default continuing on the date of this Deed and on the Effective Date or resulting from the occurrence of the Effective Date;
|
(b) |
the Repeating Representations to be made by each Existing Obligor pursuant to Clause 4 (Representations and Warranties) being true on the date of this Deed and on the
Effective Date; and
|
(c) |
the Facility Agent receiving confirmation from the Lenders and their legal advisers that they have received all of the documents and other evidence listed in Schedule 2 (Conditions
Precedent) in form and substance satisfactory to the Lenders and their legal advisers on or before the Effective Date.
|
3.2 |
Waiver of conditions precedent
|
4 |
REPRESENTATIONS AND WARRANTIES
|
4.1 |
Representations and warranties of Replacement Borrowers
|
4.2 |
Repetition of representations and warranties of Existing Obligors
|
(a) |
Each Existing Obligor represents and warrants to the Finance Parties as at the date of this Deed that the representations and warranties in clause 18 (representations)
of the Facility Agreement are true and not misleading if repeated on the date of this Deed.
|
(b) |
The representations and warranties in clause 18 (representations) of the Amended and Restated Facility Agreement are deemed to be made on the Effective Date by each
Existing Obligor with reference to the circumstances then existing.
|
(c) |
Each Existing Obligor represents and warrants to the Finance Parties that the representations and warranties in the Finance Documents (other than the Amended and Restated Facility Agreement) to which each of
them is a party, as amended and supplemented by this Deed and updated with appropriate modifications to refer to this Deed and where appropriate the Mortgage Addendum, remain true and not misleading if repeated on the date of this Deed with
reference to the circumstances now existing.
|
5 |
AMENDMENT AND RESTATEMENT OF FACILITY AGREEMENT
|
5.1 |
Amendment and restatement of the Facility Agreement
|
5.2 |
Amendments to Finance Documents
|
(a) |
the definition of, and references throughout each of the Finance Documents to the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to, respectively:
|
(i) |
the Amended and Restated Facility Agreement; and
|
(ii) |
the other Finance Documents as amended and supplemented by this Clause 5.2 (Amendments to Finance Documents);
|
(b) |
cross references to any provisions of the Facility Agreement shall be construed as being cross references to the equivalent clause in the Amended and Restated Facility Agreement;
|
(c) |
the definition of, and references throughout each of the Finance Documents to, the Existing Mortgage shall be construed as if the same referred to the Existing Mortgage as amended and supplemented by the
Mortgage Addendum;
|
(d) |
by construing references throughout each of the Finance Documents to “the Borrowers” as if the same referred to the Borrowers (including, for the avoidance of doubt, the Replacement Borrowers) as joint and
several borrowers, or, where the context so requires, any of them; and
|
(e) |
by construing references throughout each of the Finance Documents to “this Agreement”, “this Deed”, “hereunder” and other like expressions as if the same referred to those Finance Documents as amended and/or
supplemented by this Deed.
|
5.3 |
Finance Documents to remain in full force and effect
|
(a) |
in the case of the Facility Agreement as amended and supplemented pursuant to Clause 5.1 (Amendment and restatement of the Facility Agreement);
|
(b) |
in the case of the Finance Documents (other than the Facility Agreement and the Existing Mortgage which is amended and supplemented by the Mortgage Addendum) as amended and supplemented pursuant to Clause 5.2
(Amendments to Finance Documents);
|
(c) |
the Facility Agreement and the applicable provisions of this Deed will be read and construed as one document;
|
(d) |
the Finance Documents (other than the Facility Agreement) and the applicable provisions of this Deed will be read and construed as one document; and
|
(e) |
except to the extent expressly effected by this Deed, no waiver is given by this Deed and the Lenders expressly reserve all their rights and remedies in respect of any breach of or other Default under the
Finance Documents.
|
6 |
ACCESSION AND ASSUMPTION
|
(a) |
each Replacement Borrower agrees that:
|
(i) |
it will accede to the Amended and Restated Facility Agreement and to the Fee Letter as a Borrower and it will assume the obligations of the Existing Borrowers thereunder; and
|
(ii) |
it will be bound, on a joint and several basis with the Existing Borrowers, by the terms of the Amended and Restated Facility Agreement and by the terms of the Fee Letter;
|
(b) |
each Existing Obligor confirms and acknowledges it is and remains a party to the Facility Agreement and the Fee Letter and that its respective obligations under the Facility Agreement and the other Finance
Documents remain in full force and effect;
|
(c) |
each Existing Borrower further agrees to be jointly and severally liable together with the Replacement Borrowers for:
|
(i) |
the repayment of the Loan, or any part thereof plus interest accrued thereon in accordance with the Amended and Restated Facility Agreement;
|
(ii) |
the payment of any fees as set out in the Fee Letter; and
|
(iii) |
all other obligations and liabilities under the Amended and Restated Facility Agreement and the Fee Letter as amended by this Deed; and
|
(d) |
the Existing Obligors and the Finance Parties agree to the accession by the Replacement Borrowers to the Amended and Restated Facility Agreement and to the Fee Letter.
|
7 |
EXISTING OBLIGOR CONFIRMATION
|
(a) |
confirms its acceptance of the amendments effected by this Deed;
|
(b) |
agrees that it is bound as an Obligor (as defined in the Amended and Restated Facility Agreement);
|
(c) |
confirms that the definition of, and references throughout each of the Finance Documents to, the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to the
Facility Agreement and those Finance Documents as amended and restated or, as the case may be, supplemented by this Deed;
|
(d) |
(if it is a Guarantor) confirms that its guarantee and indemnity:
|
(i) |
continues to have full force and effect on the terms of the Amended and Restated Facility Agreement; and
|
(ii) |
extends to the obligations of the relevant Obligors under the Finance Documents as amended and restated or, as the case may be, supplemented by this Deed.
|
8 |
SECURITY
|
(a) |
any Security created by it under the Finance Documents to which it is a party extends to the obligations of the Obligors under the Amended and Restated Facility Agreement and the other Finance Documents (as
amended and supplemented by this Deed and as may be further amended and supplemented from time to time and, in the case of the Existing Mortgage, as amended and supplemented by the Mortgage Addendum);
|
(b) |
the obligations of the Obligors arising under the Amended and Restated Facility Agreement and the other Finance Documents (as amended and supplemented by this Deed and as may be further amended and
supplemented from time to time and, in the case of the Existing Mortgage, as amended and supplemented by the Mortgage Addendum) are included in the Secured Liabilities;
|
(c) |
the Security created pursuant to the Finance Documents continues in full force and effect on the terms of the respective Finance Documents (as amended and supplemented by this Deed and as may be further
amended and supplemented from time to time and, in the case of the Existing Mortgage, as amended and supplemented by the Mortgage Addendum); and
|
(d) |
to the extent that this confirmation creates a new Security, such Security shall be on the terms of the Security Documents in respect of which this confirmation is given.
|
9 |
FURTHER ASSURANCE
|
10 |
INSTRUCTIONS
|
12 |
COSTS AND EXPENSES
|
13.1 |
General
|
14.1 |
Counterparts
|
14.2 |
Third party rights
|
15.1 |
Governing law
|
15.2 |
Incorporation of the Facility Agreement provisions
|
15.3 |
Process agent
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor:
|
(i) |
irrevocably appoints Messrs Shoreside Agents Ltd, presently at 11 The Timber Yard, Drysdale Street, London, N1 6ND (T: +44 (0)20 3771 8869, M: + 44 (0) 7591 440086, Fax: +44 (0)20 3771 8870,
attention: Andrew Johnson) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of all the Obligors) must immediately (and in any event
within five 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.
|
Name of Original Lender
|
Commitment
|
Address for Communication
|
Blue Ocean Onshore Fund LP
|
$27,048,528
|
Blue Ocean Onshore Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean 1839 Fund LP
|
$13,996,303
|
Blue Ocean 1839 Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean Income Fund LP
|
$7,767,560
|
Blue Ocean Income Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
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
|
$5,377,810
|
EnTrust Global ICAV
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean Investments SPC, for and on behalf of Segregated Portfolio One
Blue Ocean Income Fund II LP
Blue Ocean Offshore Master Fund I LLC
|
$1,602,983
$2,700,260
$623,760
|
Blue Ocean Investments SPC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
Blue Ocean Income Fund II LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
Blue Ocean Offshore Master Fund I LLC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
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.
BO FR SPV I LP
|
$2,700,260
$1,782,536
|
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
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
BO FR SPV I LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
1 |
Existing Obligors and Replacement Borrowers
|
1.1 |
True and complete copies of the constitutional documents of each Replacement Borrower.
|
1.2 |
A certificate from an officer of each Existing Obligor and each Replacement Borrower confirming the names and offices of all their respective directors and officers and its shareholders as the case may be and having attached thereto true
and complete copies of their constitutional documents.
|
1.3 |
Up-to-date certificates of goodstanding in respect of each Existing Obligor and each Replacement Borrower.
|
1.4 |
A copy of a resolution of the board of directors of each Existing Obligor and each Replacement Borrower:
|
(a) |
approving the terms of, and the transactions contemplated by, this Deed and (as applicable) the Mortgage Addendum and each other Finance Document to which it is to be a party and resolving that it execute this Deed, the Mortgage Addendum
and each other Finance Document to which it is to be a party;
|
(b) |
authorising a specified person or persons to execute this Deed and (as applicable) the Mortgage Addendum and each other Finance Document to which it is to be 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 to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.5 |
A copy of the power of attorney of any Existing Obligor and each Replacement Borrower authorising a specified person or persons to execute this Deed and (as applicable) the Mortgage Addendum each other Finance Document to which it is to
be a party.
|
1.6 |
A specimen of the signature of each person authorised by the resolutions referred to in paragraph 1.4 above.
|
1.7 |
A copy of a resolution signed by the Guarantor as the holder of the issued shares in each Replacement Borrower, approving the terms of, and the transactions contemplated by, this Deed and (as applicable) the Mortgage Addendum and each
other Finance Document to which it is to be a party.
|
1.8 |
A copy of a certificate each Existing Obligor and each Replacement Borrower 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.
|
1.9 |
A copy of a certificate of an authorised signatory of the relevant Existing Obligor and each Replacement Borrower certifying that each copy document relating to it specified in this Schedule 2 (Conditions
Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Deed.
|
2 |
Finance Documents
|
2.1 |
A duly executed original of this Deed signed by all Parties to it.
|
2.2 |
A duly executed original of the Mortgage Addendum together with documentary evidence that the Mortgage Addendum has been duly registered as a valid addendum to the Existing Mortgage in respect of Ship D in
accordance with the laws of the jurisdiction of the relevant Approved Flag.
|
3 |
Legal opinions
|
3.1 |
If an Existing Obligor or a Replacement Borrower 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 Lenders before signing this Deed.
|
3.2 |
Legal opinions of the legal advisers to the Facility Agent and the Security Agent in such other relevant jurisdictions as the Facility Agent may require.
|
4 |
Other documents and evidence
|
4.1 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent (acting on the instructions of the Lenders) considers to be necessary or desirable in connection with the
entry into and performance of the transactions contemplated by this Deed, each New Security Document and each other Finance Document or for the validity and enforceability of any Finance Document as amended, restated and/or supplemented by
this Deed or by the Mortgage Addendum.
|
4.2 |
Such evidence as the Facility Agent (acting on the instructions of the Lenders) 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 this Deed.
|
4.3 |
Documentary evidence that the agent for service of process named in Clause 15.3 (Process agent) has accepted its appointment.
|
4.4 |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 12 (Costs and Expenses)
have been paid or will be paid by the Effective Date.
|
EXECUTED AS A DEED
|
)
|
||
by MINOANSEA MARITIME CO.
|
)
|
||
acting by Stavros Gyftakis
|
)
|
||
being Attorney-in-fact
|
)
|
/s/ Stavros Gyftakis
|
|
in the presence of:
|
)
|
||
|
) | ||
Witness’ signature:
|
)
|
||
Witness’ name: Yannos Chrysospathis
|
)
|
/s/ Yannos Chrysospathis
|
|
Witness’ address:
|
)
|
154 Vouliagmenis Avenue
|
|
16674 Glyfada, Athens Greece
|
EXECUTED AS A DEED
|
)
|
||
by EPANASTASEA MARITIME CO.
|
)
|
||
acting by Stavros Gyftakis
|
)
|
||
being Attorney-in-fact
|
)
|
||
in the presence of:
|
)
|
/s/ Stavros Gyftakis
|
|
|
) | ||
Witness’ signature:
|
)
|
||
Witness’ name: Yannos Chrysospathis
|
)
|
/s/ Yannos Chrysospathis
|
|
Witness’ address:
|
)
|
154 Vouliagmenis Avenue
|
|
16674 Glyfada, Athens Greece
|
EXECUTED AS A DEED
|
)
|
||
by GOOD MARITIME CO.
|
)
|
||
acting by Stavros Gyftakis
|
)
|
||
being attorney-in-fact
|
)
|
||
in the presence of:
|
)
|
/s/ Stavros Gyftakis
|
|
|
) |
||
Witness’ signature:
|
)
|
||
Witness’ name: Yannos Chrysospathis
|
)
|
/s/ Yannos Chrysospathis
|
|
Witness’ address:
|
)
|
154 Vouliagmenis Avenue
|
|
16674 Glyfada, Athens Greece
|
EXECUTED AS A DEED
|
)
|
||
by TRADERS MARITIME CO.
|
)
|
||
acting by Stavros Gyftakis
|
)
|
||
being
|
)
|
||
in the presence of:
|
)
|
/s/ Stavros Gyftakis
|
|
|
) |
||
Witness’ signature:
|
)
|
||
Witness’ name: Yannos Chrysospathis
|
)
|
/s/ Yannos Chrysospathis
|
|
Witness’ address:
|
)
|
154 Vouliagmenis Avenue
|
|
16674 Glyfada, Athens Greece
|
EXECUTED AS A DEED
|
)
|
||
by UNITED MARITIME CORPORATION
|
)
|
||
acting by Stavros Gyftakis
|
)
|
||
being attorney-in-fact
|
)
|
||
in the presence of:
|
)
|
/s/ Stavros Gyftakis
|
|
|
) |
||
Witness’ signature:
|
)
|
||
Witness’ name: Yannos Chrysospathis
|
)
|
/s/ Yannos Chrysospathis
|
|
Witness’ address:
|
)
|
154 Vouliagmenis Avenue
|
|
16674 Glyfada, Athens Greece
|
SIGNED by Vasiliki Emiri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
BLUE OCEAN ONSHORE FUND LP
|
)
|
/s/ Vasiliki Emiri
|
|
By: Blue Ocean GP LLC
|
)
|
||
as its General Partner
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name:
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
ATTORNEY-AT-LAW
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Vasiliki Emiri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
BLUE OCEAN 1839 FUND LP
|
)
|
/s/ Vasiliki Emiri
|
|
By: Blue Ocean GP LLC
|
)
|
||
as its General Partner
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
ATTORNEY-AT-LAW
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Vasiliki Emiri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
BLUE OCEAN INCOME FUND LP
|
)
|
/s/ Vasiliki Emiri
|
|
By: Blue Ocean GP LLC
|
)
|
||
as its General Partner
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
ATTORNEY-AT-LAW
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Vasiliki Emiri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
ENTRUST GLOBAL ICAV
|
)
|
||
for and on behalf of
|
)
|
/s/ Vasiliki Emiri
|
|
BLUE OCEAN FUND
|
)
|
||
By: EnTrust Global Partners Offshore LP
|
)
|
||
as its Investment Advisor
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
ATTORNEY-AT-LAW
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Vasiliki Emiri
|
)
|
|||
duly authorised
|
)
|
|||
for and on behalf of
|
)
|
|||
BLUE OCEAN INVESTMENTS SPC
|
)
|
|||
for and on behalf of
|
)
|
/s/ Vasiliki Emiri
|
||
SEGREGATED PORTFOLIO ONE
|
)
|
|||
By: EnTrust Global Partners Offshore LP
|
)
|
|||
as its Investment Advisor
|
)
|
|||
in the presence of:
|
)
|
|||
Witness’ signature:
|
)
|
|||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
||
Witness’ address:
|
)
|
ATTORNEY-AT-LAW
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Vasiliki Emiri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
BLUE OCEAN INCOME FUND II LP
|
)
|
/s/ Vasiliki Emiri
|
|
By: Blue Ocean GP LLC
|
)
|
||
as its General Partner
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Vasiliki Emiri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
BLUE OCEAN OFFSHORE MASTER
|
)
|
||
FUND I LLC
|
)
|
/s/ Vasiliki Emiri
|
|
By: EnTrust Global Partners Offshore LP
|
)
|
||
as its Investment Advisor
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Vasiliki Emiri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
BLUE OCEAN IDF SERIES OF THE SALI
|
)
|
/s/ Vasiliki Emiri
|
|
MULTI-SERIES FUND, L.P.
|
|||
By: EnTrust Global Partners Offshore LP
|
)
|
||
as its Investment Subadvisor
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Vasiliki Emiri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
BO FR SPV I LP
|
)
|
/s/ Vasiliki Emiri
|
|
By: EnTrust Global Ltd.
|
)
|
||
as its Investment Manager
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
ATTORNEY-AT-LAW
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Eliza-Elisavet Makri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
/s/ Eliza-Elisavet Makri
|
|
KROLL AGENCY SERVICES LIMITED
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
ATTORNEY-AT-LAW
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
SIGNED by Eliza-Elisavet Makri
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
/s/ Eliza-Elisavet Makri
|
|
KROLL TRUSTEE SERVICES LIMITED
|
)
|
||
in the presence of:
|
)
|
||
Witness’ signature:
|
)
|
||
Witness’ name: Vasiliki Angeletaki
|
)
|
/s/ Vasiliki Angeletaki
|
|
Witness’ address:
|
)
|
ATTORNEY-AT-LAW
WATSON FARLEY WILLIAMS
|
|
345 SYNGROU AVENUE
|
|
KALLITHEA 176 74
|
|
ATHENS-GREECE
|
/s/ Stamatios Tsantanis
|
||
By: Stamatios Tsantanis
|
||
for and on behalf of
|
||
SEANERGY MANAGEMENT CORP.
|
||
its President
|
||
as Approved Commercial Manager
|
||
/s/ Stamatios Tsantanis
|
||
By: Stamatios Tsantanis
|
||
for and on behalf of
|
||
UNITED MANAGEMENT CORP.
|
||
its President
|
||
as Approved Commercial Manager
|
||
/s/ Stamatios Tsantanis
|
||
By: Stamatios Tsantanis
|
||
for and on behalf of
|
||
SEANERGY SHIPMANAGEMENT
|
||
its President
|
||
as Approved Technical Manager
|
Clause
|
Page
|
|
Section 1 Interpretation
|
4
|
|
1
|
Definitions and Interpretation
|
4
|
Section 2 The Facility
|
33
|
|
2
|
The Facility
|
33
|
3
|
Purpose
|
33
|
4
|
Conditions of Utilisation
|
34
|
Section 3 Utilisation
|
36
|
|
5
|
Utilisation
|
36
|
Section 4 Repayment, Prepayment and Cancellation
|
38
|
|
6
|
Repayment
|
38
|
7
|
Prepayment and Cancellation
|
39
|
Section 5 Costs of Utilisation
|
43
|
|
8
|
Interest
|
43
|
9
|
Interest Periods
|
43
|
10
|
Fees
|
44
|
Section 6 Additional Payment Obligations
|
46
|
|
11
|
Tax Gross Up and Indemnities
|
46
|
12
|
Increased Costs
|
50
|
13
|
Other Indemnities
|
52
|
14
|
Mitigation by the Finance Parties
|
55
|
15
|
Costs and Expenses
|
55
|
Section 7 Guarantee and Joint and Several Liability of the Borrowers
|
57
|
|
16
|
Guarantee and Indemnity
|
57
|
17
|
Joint and Several Liability of the Borrowers
|
60
|
Section 8 Representations, Undertakings and Events of Default
|
62
|
|
18
|
Representations
|
62
|
19
|
Most Favoured Nation
|
69
|
20
|
Information Undertakings
|
69
|
21
|
Purchase Agreement and MOA Undertakings
|
73
|
22
|
General Undertakings
|
74
|
23
|
Insurance Undertakings
|
81
|
24
|
Ship Undertakings
|
86
|
25
|
Valuations
|
92
|
26
|
Earnings Account and Application of Earnings
|
93
|
27
|
Events of Default
|
94
|
Section 9 Changes to Parties
|
100
|
|
28
|
Changes to the Lenders
|
100
|
29
|
Changes to the Transaction Obligors
|
105
|
Section 10 The Finance Parties
|
106
|
|
30
|
The Facility Agent
|
106
|
31
|
Amounts paid in error
|
117
|
32
|
The Security Agent
|
117
|
33
|
Conduct of Business by the Finance Parties
|
133
|
34
|
Sharing among the Finance Parties
|
133
|
Section 11 Administration
|
136
|
|
35
|
Payment Mechanics
|
136
|
36
|
Set-Off
|
139
|
37
|
Bail-In
|
139
|
38
|
Notices
|
139
|
39
|
Calculations and Certificates
|
142
|
40
|
Partial Invalidity
|
142
|
41
|
Remedies and Waivers
|
142
|
42
|
Settlement or Discharge Conditional
|
142
|
43
|
Irrevocable Payment
|
142
|
44
|
Amendments and Waivers
|
143
|
45
|
Confidential Information
|
145
|
46
|
Counterparts
|
148
|
Section 12 Governing Law and Enforcement
|
149
|
|
47
|
Governing Law
|
149
|
48
|
Enforcement
|
149
|
49
|
Patriot Act Notice
|
149
|
Schedule 1 The Parties
|
151
|
|
Part A The Obligors
|
151
|
|
Part B The Original Lenders
|
153
|
|
Part C The Servicing Parties
|
156
|
|
Schedule 2 Conditions Precedent
|
157
|
|
Part A Conditions precedent to Initial Utilisation Request
|
157
|
|
Part B Conditions precedent to Utilisation
|
159
|
|
Part C Conditions precedent to Release of Allocated Amounts
|
161
|
|
Schedule 3 Requests
|
163
|
|
Schedule 4 Form of Transfer Certificate
|
165
|
|
Schedule 5 Form of Assignment Agreement
|
167
|
|
Schedule 6 Details of the Ships
|
170
|
|
Schedule 7 Timetables
|
172
|
Execution Pages
|
173
|
(1) |
MINOANSEA MARITIME 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 C”)
|
(2) |
EPANASTASEA MARITIME 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 D” and together with Borrower A,
Borrower B (each hereinafter defined) and Borrower C, the “Original Borrowers”)
|
(3) |
GOOD MARITIME CO., a corporation incorporated in the Republic of Liberia whose registered address is 80 Broad Street, Monrovia, Liberia as borrower (“New Owner A”)
|
(4) |
TRADERS MARITIME CO., a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Marshall Islands MH 96960 as borrower (“New Owner B” and together with New Owner A, the “New Owners”)
|
(5) |
UNITED MARITIME CORPORATION, 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”)
|
(6) |
THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as lenders (the “Original Lenders”)
|
(7) |
KROLL AGENCY SERVICES LIMITED as agent of the other Finance Parties (the “Facility Agent”)
|
(8) |
KROLL TRUSTEE SERVICES LIMITED as security agent for the Secured Parties (the “Security Agent”)
|
(A) |
By a facility agreement dated 8 August 2022 (as amended and supplemented by a supplemental agreement dated 26 October 2022 and by a second supplemental agreement dated 21 December 2022 (the “Second Supplemental Agreement”)) (the “Original Facility Agreement”), the Lenders agreed to make available to the Original Borrowers a senior secured term loan facility in four Original Tranches (as defined below)
in an aggregate amount not exceeding US$63,600,000, for the purpose of financing part of the Purchase Price (as in hereinafter defined) of the Existing Ships.
|
(B) |
Pursuant to the terms of a deed of release dated 8 November 2022 and a deed of release dated 1 December 2022, respectively, the Finance Parties agreed to release Borrower A and Borrower B from
their obligations, respectively, under the relevant Finance Documents to which each of Borrower A and Borrower B is a party.
|
(C) |
Borrower C and Borrower D subsequently advised the Finance Parties that Borrower C intended to proceed with the sale of Ship C (the “Sale”).
|
(D) |
Under Clause 22.13 (disposals), a Borrower is allowed to sell its Ship provided that the Borrowers comply with the prepayment obligations in Clause 7 (prepayment and cancellation) of this Agreement.
|
(E) |
Pursuant to Clause 7.4 (mandatory prepayment on sale or Total Loss), the Borrowers shall use the proceeds from the Sale (the “Sale Proceeds”) in such amount as may be necessary in order to prepay the Relevant Amount, such amount to be applied on the Relevant Date towards prepayment the Loan in accordance with paragraph (d) of Clause
7.4 (mandatory prepayment on sale or Total Loss).
|
(F) |
Pursuant to the terms of the Second Supplemental Agreement, the Finance Parties agreed, inter alia, to (i) the Sale, (ii) waive the obligation of the Borrowers to prepay the Loan in accordance with
Clause 7.4 (mandatory prepayment on sale or Total Loss) during the Waiver Period (hereinafter defined), (iii) permit the Sale Proceeds (after deduction of the aggregate Allocated
Amount (as defined below), the Interest Amount (as defined below) and any other amounts payable by the Borrowers under this Agreement in connection with the Sale (including legal fees)), to be paid to the Borrowers towards
payment of dividends distribution and (iv) continue to make available that part of the Loan for the purpose of partially financing the acquisition cost of the New Ships (as defined below) provided that, inter alia, out of
the Sale Proceeds:
|
(i) |
an amount of $15,200,000 (the “Allocated Amount”) be remitted directly from the Escrow Account to the Earnings Account of Borrower C and such Allocated
Amount remain credited and blocked in that Earnings Account in favour of the Security Agent until the relevant Release Date (as defined below);
|
(ii) |
an amount of $7,000,000 (the “New Ship A Allocated Amount A”) from such Allocated Amount remain blocked in favour of the Security Agent until the date on
which the New Security Documents (as defined below) relating to New Ship A have been executed and the relevant New Mortgage has been registered with first priority over New Ship A in favour of the Security Agent;
|
(iii) |
an amount of $8,200,000 (the “New Ship B Allocated Amount B”) from such Allocated Amount remain blocked in favour of the Security Agent until the date on
which the New Security Documents relating to New Ship B have been executed and the relevant New Mortgage has been registered with first priority over the New Ship B in favour of the Security Agent; and
|
(iv) |
any Security in respect of Ship C (other than the relevant Mortgage over Ship C) would not be released and Borrower C would remain an Obligor until the New Security Documents in relation to the New
Ships have been executed in favour of the Security Agent.
|
(G) |
Further to the terms of the Second Supplemental Agreement and by the Deed of Accession, Amendment and Restatement, the Finance Parties agreed to certain amendments, including but not limited to the
following:
|
(i) |
New Owner A and New Owner B each acceding to this Agreement as Borrowers;
|
(ii) |
the release of the New Ship A Allocated Amount A to Borrower C on Release Date A (as defined below);
|
(iii) |
the release of the New Ship B Allocated Amount B to Borrower C on Release Date B (as defined below).
|
(H) |
This Agreement sets out the terms and conditions of the Original Facility Agreement as amended and restated by the Deed of Accession, Amendment and Restatement.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
any Approved Pool Manager;
|
(b) |
Seanergy Management;
|
(c) |
United Management;
|
(d) |
Fidelity Marine;
|
(e) |
Elite Tankship Pte Ltd;
|
(f) |
Signal Maritime Services Ltd;
|
(g) |
a direct or indirect wholly owned Subsidiary of the Guarantor; or
|
(h) |
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, such approval not to be unreasonably withheld or delayed.
|
(a) |
Maersk Tankers Afra K/S;
|
(b) |
Signal Maritime Aframax Pool Ltd; or
|
(c) |
any other company which the Facility Agent (acting on the instructions of the Lenders) may approve from time to time as the pool manager of a Ship.
|
(a) |
Executive Ship Management (P) Limited;
|
(b) |
V. Ships UK Limited;
|
(c) |
Synergy Denmark A/S;
|
(d) |
OSM Ship Management B AS;
|
(e) |
Seanergy Shipmanagement Corp.;
|
(f) |
V.Ships Greece Ltd., a corporation incorporated in Bermuda having a registered office at 3rd floor, Par-La-Ville Place, 14 Par-La-Ville Road, Hamilton HM 08, Bermuda;
|
(g) |
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;
|
(h) |
a direct or indirect wholly owned Subsidiary of the Guarantor; or
|
(i) |
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, such approval not to be unreasonably withheld or delayed.
|
(a) |
the amount of its participation in any outstanding Utilisation under that Original Tranche; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made under that Original Tranche on or before the proposed Utilisation Date.
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation
Schedule from time to time;
|
(b) |
in relation to any state other than such an EEA Member Country and 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; and
|
(c) |
in relation to the United Kingdom, the UK Bail-In Legislation.
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Part B of Schedule 1 (The Parties) and the amount of
any other Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a) |
any Transaction Obligor or any of its advisers; or
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Transaction Obligor or any of its advisers,
|
(i) |
information that:
|
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 45 (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.
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the
Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties or, if applicable, any
Transaction Obligor; or
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party or, if applicable, any Transaction
Obligor preventing that, or any other, Party or, if applicable, any Transaction Obligor:
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
(ii) |
from communicating with other Parties or, if applicable, any Transaction Obligor in accordance with the terms of the Finance Documents,
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders), pooled or shared with any other
person:
|
(i) |
all freight, hire and passage moneys including, without limitation, all moneys payable under, arising out of or in connection with a Charter or a Charter Guarantee;
|
(ii) |
the proceeds of the exercise of any lien on sub-freights;
|
(iii) |
compensation payable to a Borrower or the Security Agent in the event of requisition of that Ship for hire or use;
|
(iv) |
remuneration for salvage and towage services;
|
(v) |
demurrage and detention moneys;
|
(vi) |
without prejudice to the generality of sub-paragraph (i) above, damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship;
|
(vii) |
all moneys which are at any time payable under any Insurances in relation to loss of hire;
|
(viii) |
all monies which are at any time payable to a Borrower in relation to general average contribution; and
|
(b) |
if and whenever that Ship is employed on terms whereby any moneys falling within sub-paragraphs (i) to (viii) of paragraph (a) above are pooled or shared with any other person (including, without
limitation, such Ship’s employment under the relevant Approved Charter), that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship.
|
(a) |
an account in the name of that Borrower with the Account Bank designated “USD 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.
|
(a) |
any release, emission, spill or discharge of Environmentally Sensitive Material whether within a Ship from a Ship into any other vessel or into or upon the air, water, 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, water, land or soils (including the seabed) or surface water from a vessel
other than a Ship and which involves a collision between a Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to be
arrested, attached, detained or injuncted and/or a Ship and/or any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water
otherwise than from a Ship and in connection with which a Ship is actually or potentially liable to be arrested and/or where any Transaction Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault
or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the
implementation of any law or regulation referred to in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental
or taxation authority in any other jurisdiction.
|
(a) |
in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; 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.
|
(a) |
this Agreement;
|
(b) |
the Deed of Accession, Amendment and Restatement;
|
(c) |
any Utilisation Request;
|
(d) |
any Security Document;
|
(e) |
any Subordination Agreement;
|
(f) |
any Fee Letter;
|
(g) |
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or
|
(h) |
any other document designated as such by the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrowers.
|
(a) |
moneys borrowed;
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d) |
the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of
a borrowing;
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only
the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
|
(h) |
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
(i) |
the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
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.
|
(a) |
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in relation to that Ship, its Earnings or otherwise in
relation to that Ship whether before, on or after the date of this Agreement; and
|
(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium and any rights in relation to any claim whether or
not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
(a) |
in respect of each Original Tranche (other than Tranche C), 7.90 per cent. per annum;
|
(b) |
in respect of Tranche C:
|
(i) |
7.90 per cent. per annum during the period commencing on the date of this Agreement up to the Sale Date;
|
(ii) |
9 per cent. per annum during the period commencing on the Sale Date (inclusive) and at all times thereafter; and
|
(c) |
in respect of Tranche E and Tranche F, 9 per cent. per annum.
|
(a) |
any Original Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 28 (Changes to the Lenders),
|
(a) |
the aggregate Market Value of the Ships; plus
|
(b) |
the credit balance held on the Earnings Accounts,
|
(a) |
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66⅔ per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in
full, a Lender or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66⅔ per cent. of the Loan immediately before such repayment.
|
(a) |
as at a date not more than 30 days previously;
|
(b) |
by an Approved Valuer (appointed by the Borrowers 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
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any Obligor or Obligors as a whole; or
|
(b) |
the ability of any Obligor to perform its obligations under any Finance Document; or
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the
Finance Documents.
|
(a) |
in relation to the purchase of Ship A, the memorandum of agreement dated July 11, 2022, as amended by Addendum No. 1 dated 2 August 2022, as from time to time further amended or
supplemented, and made between (i) Borrower A as buyer and (ii) the relevant Seller;
|
(b) |
in relation to the purchase of Ship B, the memorandum of agreement dated July 11, 2022, as amended by Addendum No. 1 dated 2 August 2022, as from time to time further amended or
supplemented, and made between (i) Borrower B as buyer and (ii) the relevant Seller;
|
(c) |
in relation to the purchase of Ship C, the memorandum of agreement dated July 11, 2022, as amended by Addendum No. 1 dated 2 August 2022, as from time to time further amended or
supplemented, and made between (i) Borrower C as buyer and (ii) the relevant Seller;
|
(d) |
in relation to the purchase of Ship D, the memorandum of agreement dated July 11, 2022, as amended by Addendum No. 1 dated 2 August 2022, as from time to time further amended or
supplemented, and made between (i) Borrower D as buyer and (ii) the relevant Seller;
|
(e) |
in relation to the purchase of New Ship A, the memorandum of agreement dated December 27, 2022, as from time to time may be further amended or supplemented, and made between (i) New Owner A as buyer and (ii) the New Seller A, as seller; and
|
(f) |
in relation to the purchase of New Ship B, the memorandum of agreement dated December 27, 2022, as from time to time may be further amended or supplemented, and made between (i) New Owner B as
buyer and (ii) the New Seller B, as seller.
|
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if
there is one, or if there is not, on the immediately preceding Business Day;
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
(a) |
any New Mortgage;
|
(b) |
any New General Assignment;
|
(c) |
any New Account Security;
|
(d) |
any New Shares Security; and
|
(e) |
any New Manager’s Undertaking.
|
(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,
|
(a) |
any Financial Indebtedness incurred under the Finance Documents; and
|
(b) |
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents in a manner satisfactory to the Facility Agent (acting on the instructions of the
Majority Lenders).
|
(a) |
Security created by the Finance Documents;
|
(b) |
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;
|
(c) |
liens for unpaid master’s and crew’s wages in accordance with first class ship ownership and management practice;
|
(d) |
liens for salvage;
|
(e) |
liens for master’s disbursements incurred in the ordinary course of trading;
|
(f) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation (including any lien in connection with the Commercial Management Agreement involving Signal Maritime
Services Ltd as commercial manager to the extent that such lien is less than or equal to $150,000), repair or maintenance of a Ship and not as a result of any default or omission by the relevant Borrower, provided such liens
do not secure amounts more than 30 days overdue (unless the overdue amount is being contested in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 24.15 (Restrictions on chartering, appointment of managers etc.);
|
(g) |
Security arising by operation of law in respect of Taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which
appropriate reserves have been made; and
|
(h) |
any Security created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses where a Borrower is actively prosecuting or defending such
proceedings or arbitration in good faith.
|
(a) |
in relation to Ship A, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 20,250,000;
|
(b) |
in relation to Ship B, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 20,250,000;
|
(c) |
in relation to Ship C, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 19,000,000;
|
(d) |
in relation to Ship D, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 20,000,000;
|
(e) |
in relation to New Ship A, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 17,500,000; and
|
(f) |
in relation to New Ship B, the purchase price in accordance with the terms of the relevant MOA, in the amount of US$ 18,750,000.
|
(a) |
its Original Jurisdiction;
|
(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is situated;
|
(c) |
any jurisdiction where it conducts its business; and
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a) |
any expropriation, confiscation, requisition (excluding a requisition for hire or use which does not involve a requisition for title) or acquisition of that Ship, whether for full consideration, a
consideration less than its proper value, a nominal consideration or without any consideration, which is effected (whether de jure or de facto)
by any government or official authority or by any person or persons claiming to be or to represent a government or official authority; and
|
(b) |
any capture or seizure of that Ship (including any hijacking or theft) by any person whatsoever.
|
(a) |
imposed by law or regulation of the United Kingdom, the Council of the European Union, the European Union, the member states of the European Union, the United Nations or its Security Council or the
United States of America regardless of whether the same is or is not binding on any Transaction Obligor; or
|
(b) |
otherwise imposed by any law or regulation binding on a Transaction Obligor or to which a Transaction Obligor is subject (which shall include without limitation, any extra-territorial sanctions
imposed by law or regulation of the United States of America).
|
(a) |
any Shares Security;
|
(b) |
any Mortgage;
|
(c) |
any General Assignment;
|
(d) |
any Charter Assignment;
|
(e) |
any 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.
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b) |
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the
Transaction Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;
|
(c) |
the Security Agent’s interest in any turnover trust created under the Finance Documents;
|
(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold
as trustee on trust for the Secured Parties,
|
(i) |
rights intended for the sole benefit of the Security Agent; and
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent (acting on the instructions of the Majority Lenders) or (being entitled to do so) has retained in
accordance with the provisions of this Agreement.
|
(a) |
in relation to Ship A, Godam Maritime Ltd, of the Republic of the Marshall Islands;
|
(b) |
in relation to Ship B, Mandala Maritime Ltd, of the Republic of the Marshall Islands;
|
(c) |
in relation to Ship C, Thunderbolt Maritime Ltd, of the Republic of the Marshall Islands;
|
(d) |
in relation to Ship D, Timberwolf Maritime Ltd, of the Republic of the Marshall Islands;
|
(e) |
in relation to New Ship A, the New Seller A; and
|
(f) |
in relation to New Ship B, the New Seller B.
|
(a) |
a Transaction Obligor; or
|
(b) |
any other person who becomes a Subordinated Creditor in accordance with this Agreement.
|
(a) |
a Subordinated Loan Agreement; and
|
(b) |
any other document relating to or evidencing a Subordinated Creditor.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of that Ship; or
|
(b) |
any Requisition of that Ship unless that Ship is returned to the full control of the Borrower owning that Ship within 90 days of such Requisition (or such later period agreed by the Facility Agent
acting on the instructions of the Majority Lenders).
|
(a) |
in the case of an actual loss of 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.
|
(a) |
a Finance Document;
|
(b) |
a Subordinated Finance Document;
|
(c) |
any Charter;
|
(d) |
any Pool Agreement;
|
(e) |
the Purchase Agreement;
|
(f) |
any MOA; or
|
(g) |
any other document designated as such by the Facility Agent and the Borrowers.
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a) |
a person which is resident for tax purposes in the US; or
|
(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a) |
any value added tax imposed by the Value Added Tax Act 1994;
|
(b) |
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
|
(c) |
any other tax of a similar nature, whether imposed in the United Kingdom or a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a)
or (b) above, or imposed elsewhere.
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In
Legislation Schedule;
|
(b) |
in relation to the UK Bail-In Legislation, 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
|
(c) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment
firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of
that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the “Account Bank”, 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.
|
(xviii) |
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.
|
(xix) |
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.
|
(xx) |
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.
|
(xxi) |
A Potential Event of Default is “continuing” if it has not been remedied or waived and an Event of Default is “continuing”
if it has not been waived.
|
1.3 |
Construction of insurance terms
|
1.4 |
Agreed forms of Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the 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 44.2 (All
Lender matters) applies, all the Lenders.
|
1.5 |
Third party rights
|
(a) |
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Subject to Clause 44.3 (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 30.10 (Exclusion of liability), or paragraph (b) of Clause 32.11 (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,
|
2 |
THE FACILITY
|
2.1 |
The Facility
|
(a) |
Subject to the terms of this Agreement, the Lenders made available to the Borrowers a senior dollar term loan facility in four Advances, one in relation to each Original Tranche in an aggregate
amount not exceeding the Total Commitments.
|
(b) |
The Borrowers acknowledge that the Lenders advanced to the Original Borrowers:
|
(i) |
on 10 August 2022, Tranche A in the amount of $16,200,000;
|
(ii) |
on 12 August 2022, Tranche B in the amount of $16,200,000;
|
(iii) |
on 30 August 2022, Tranche C in the amount of $15,200,000; and
|
(iv) |
on 2 September 2022, Tranche D in the amount of $16,000,000.
|
2.2 |
Finance Parties’ rights and obligations
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of
any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from a
Transaction Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt
owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of the Loan or any other amount owed by a Transaction Obligor which relates to a Finance Party’s participation in the Facility
or its role under a Finance Document (including any such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Transaction Obligor.
|
(c) |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
3 |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
3.3 |
Proceeds of Loan
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
on the date of a Utilisation Request and on the proposed Utilisation Date and before the relevant Advance is made available:
|
(i) |
no Default is continuing or would result from the proposed Advance; and
|
(ii) |
the Repeating Representations to be made by each Transaction Obligor are true;
|
(b) |
in the case of each Advance, the Facility Agent has received on or before the Utilisation Date of that Advance, or the Majority Lenders are satisfied they will receive when that Advance is made
available, all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent (acting on the
instructions of the Majority Lenders).
|
4.3 |
Notification of satisfaction of conditions precedent
|
(a) |
The Security 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
|
4.5 |
Release of the Allocated Amount
|
(a) |
Subject to paragraph (b) below, on each Release Date A and Release Date B, the Lenders shall release the New Ship A Allocated Amount A and the New Ship B Allocated Amount B to the Borrowers,
respectively, for the purpose of refinancing New Ship A and New Ship B.
|
(b) |
The Lenders will only be obliged to release the (a) New Ship A Allocated Amount A to the Borrowers on Release Date A and (b) New Ship B Allocated Amount B to the Borrowers on Release Date B if the
Facility Agent has received all of the documents and evidence listed in Part C of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent (acting on the instructions of the Majority
Lenders).
|
5 |
UTILISATION
|
5.1 |
Delivery of a Utilisation Request
|
(a) |
The Borrowers may utilise the Facility in up to four Advances (one in respect of each Original Tranche) 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 under each Original Tranche.
|
5.2 |
Completion of a Utilisation Request
|
(a) |
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
it identifies the Original Tranche to be utilised;
|
(ii) |
the proposed Utilisation Date is a Business Day within the Availability Period; and
|
(iii) |
the currency and amount of the Advance comply with Clause 5.3 (Currency and amount).
|
(b) |
Only one Advance may be requested for an Original Tranche and only one Advance may be requested in a Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in each Utilisation Request must be dollars.
|
(b) |
The amount of the Advance shall not exceed:
|
(i) |
in relation to Tranche A, $16,200,000;
|
(ii) |
in relation to Tranche B, $16,200,000;
|
(iii) |
in relation to Tranche C, $15,200,000; and
|
(iv) |
in relation to Tranche D, $16,000,000.
|
(c) |
The amount of the proposed Advance must be an amount which is not more than the Available Facility.
|
5.4 |
Lenders’ participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the relevant Utilisation Date through its Facility Office.
|
(b) |
The amount of each Lender’s participation in each Advance will be equal to the proportion borne by its Available Commitment to the Available Facility immediately before making that Advance.
|
(c) |
Subject to receiving a Utilisation Request, the Facility Agent shall notify each Lender of the amount of each Advance and the amount of its participation in that Advance by the Specified Time.
|
5.5 |
Cancellation of Commitments
|
5.6 |
Retentions and payment to third parties
|
(a) |
to deduct from the proceeds of any Advance any fees then payable to the Finance Parties in accordance with Clause 10 (Fees), any solicitors fees and
disbursements together with any applicable VAT and any other items listed as deductible items in the relevant Utilisation Request and to apply them in payment of the items to which they relate; and
|
(b) |
on each Utilisation Date, to pay to, or for the account of, the Borrowers, the balance (after any deduction made in accordance with paragraph (a) above) of the amounts which the Facility Agent
receives from the Lenders in respect of relevant Advance. That payment shall be made:
|
(i) |
to the account of the relevant Seller which the Borrowers specify in the relevant Utilisation Request; and
|
(ii) |
in like funds as the Facility Agent received from the Lenders in respect of the relevant Advance.
|
5.7 |
Disbursement of Advance to third party
|
5.8 |
Currency and amount of the New Tranches
|
(a) |
as of Release Date A, Tranche C shall be deemed to be decreased by an amount equal to $7,000,000 and Tranche E shall be deemed to constitute that part of the Loan that has been made available to
New Owner A to refinance part of the Purchase Price of New Ship A in a principal amount of $7,000,000; and
|
(b) |
as of Release Date B, Tranche C shall be deemed to be decreased by an amount equal to $8,200,000 and Tranche F shall be deemed to constitute that part of the Loan that has been made available to
New Owner B to refinance part of the Purchase Price of New Ship B in a principal amount of $8,200,000.
|
6 |
REPAYMENT
|
6.1 |
Repayment of Loan
|
(a) |
Save as previously prepaid or repaid and the full prepayment of (i) Tranche A on 8 November 2022 in the amount of 16,200,000.00 by way of principal and
(ii) Tranche B on 1 December 2022 in the amount of $16,200,000.00 by way of principal, the Borrowers shall repay each of Tranche C (subject to
Clause 5.8 (Currency and amount of the New Tranches) and Clause 7.5 (Additional
mandatory prepayment)), and Tranche D by four instalments (each a “Repayment Instalment C”
and “Repayment Instalment D”) as follows:
|
(i) |
a first instalment in an amount of US$1,000,000 on the date falling nine (9) months after the last Utilisation Date;
|
(ii) |
a second instalment in an amount of US$500,000 on the date falling twelve (12) months after the last Utilisation Date;
|
(iii) |
a third instalment in an amount of US$1,500,000 on the date falling fifteen (15) months after the last Utilisation Date; and
|
(iv) |
a balloon instalment in an amount equal to that Tranche then outstanding on the Termination Date (the “Balloon Instalment C” and “Balloon Instalment D”).
|
(b) |
As of Release Date A, the Borrowers shall repay Tranche E (each a “Repayment Instalment E”) as follows:
|
(i) |
by an amount equal to 50 per cent. of each Repayment Instalment (other than the Balloon Instalment) that would otherwise have been due and payable in respect of Tranche C as per paragraph (a)
above; and
|
(ii) |
a balloon instalment in an amount equal to that Tranche then outstanding on the Termination Date (“Balloon Instalment E”).
|
(c) |
As of Release Date B, the Borrowers shall repay Tranche F (each a “Repayment Instalment F” and together with
Repayment Instalment C, Repayment Instalment D and Repayment Instalment E, the “Repayment Instalments” and each a “Repayment Instalment”) as
follows:
|
(i) |
by an amount equal to 50 per cent. of each Repayment Instalment (other than the Balloon Instalment) that would otherwise have been due and payable in respect of Tranche C as per paragraph (a)
above; and
|
(ii) |
a balloon instalment in an amount equal to that Tranche then outstanding on the Termination Date (“Balloon Instalment F” and together with Balloon Instalment
C, Balloon Instalment D and Balloon Instalment E, the “Balloon Instalments” and each a “Balloon Instalment”).
|
6.2 |
Termination Date
|
6.3 |
Reborrowing
|
7 |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(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 be applied to each Tranche pro rata
by the amount prepaid or cancelled which shall then reduce the Repayment Instalments of that Tranche for each Repayment Date falling after that prepayment or cancellation in inverse chronological order.
|
7.2 |
Automatic cancellation
|
(a) |
The unutilised Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which the relevant Tranche is made available.
|
(b) |
If the whole or part of any Commitment is cancelled pursuant to Clause 5.5 (Cancellation of Commitments) or paragraph (a) above, the Repayment Instalments
for the relevant Tranche for each Repayment Date falling after that cancellation shall reduce pro rata by the amount of the Commitments so cancelled.
|
7.3 |
Voluntary prepayment of Loan
|
(a) |
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) |
If any part of a Tranche is prepaid under this Clause 7.3 (Voluntary prepayment of Loan), then the amount of the Repayment Instalments for the relevant
Tranche for each Repayment Date falling after that prepayment will reduce the Repayment Instalments pro rata by the amount of the Loan prepaid.
|
7.4 |
Mandatory prepayment on sale or Total Loss
|
(a) |
Other than in respect of the Sale and subject to Clause 5.8 (Currency and amount of the New Tranches) and Clause 7.5 (Additional
mandatory prepayment), 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 the 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 relevant Borrower.
|
(c) |
In this Clause 7.4 (Mandatory prepayment on sale or Total Loss):
|
(a) |
the Tranche applicable to that Ship; and
|
(b) |
an amount equal to the Loan multiplied by a fraction whose:
|
(i) |
numerator is the Market Value of the Ship being sold or which has become a Total Loss, determined on the date on which such sale is completed by delivery to it buyer or, as the case may be, on the
date immediately prior to the date on which the Total Loss occurred; and
|
(ii) |
denominator is the aggregate Market Value of all Ships on the date on which that Ship is sold or becomes a Total Loss.
|
(c) |
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
|
(d) |
in the case of a Total Loss of a Ship on the earlier of:
|
(i) |
the date falling 180 days after the Total Loss Date; and
|
(ii) |
the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
(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 pro rata between the remaining Tranches which shall then reduce the Repayment
Instalments of that Tranche for each Repayment Date falling after that prepayment on a pro rata basis.
|
7.5 |
Additional mandatory prepayment
|
(a) |
The Borrowers shall, on demand by the Facility Agent (acting on the instructions of the Majority Lenders), prepay the Loan and all other amounts payable under the Finance Documents in full if,
without the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders), any of the shares of the Guarantor ceases to be listed on the NASDAQ Stock Market or any other stock exchange
acceptable to Facility Agent (acting on the instructions of the Majority Lenders).
|
(b) |
If by the end of the Waiver Period both Release Dates have not occurred in accordance with Clause 5.8 (Currency and amount of the New Tranches), the
Borrowers shall, on demand by the Facility Agent in its discretion acting with the authorisation of the Majority Lenders, immediately apply the Allocated Amount (or any part thereof) towards prepayment of the Loan in
accordance with paragraph (d) of Clause 7.4 (Mandatory prepayment on sale or Total Loss).
|
(c) |
Without prejudice to paragraph (b) above, if, on the last day of the Waiver Period, one Release Date has occurred and part of the Allocated Amount has been deemed to be utilised for the refinancing
of one New Ship in accordance with Clause 5.8 (Currency and amount of the New Tranches) and the remaining Allocated Amount (or any part thereof) has not been deemed to be utilised in
accordance with Clause 5.8 (Currency and amount of the New Tranches) and the second Release Date has not occurred:
|
(i) |
the Facility Agent may, in its discretion acting with the authorisation of the Majority Lenders, by not less than three days’ notice to the Borrowers, demand prepayment of the relevant New Tranche;
and
|
(ii) |
the Borrowers shall prepay such New Tranche together with any accrued interest and any other amounts due and payable under the Finance Documents.
|
7.6 |
Restrictions
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and Cancellation) shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made 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.
|
7.7 |
Application of prepayments
|
8 |
INTEREST
|
8.1 |
Calculation of interest
|
8.2 |
Payment of interest
|
8.3 |
Default interest
|
(a) |
If a Transaction Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment
(both before and after judgment) at a rate which is 2 per cent per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of the Loan in the
currency of the Unpaid Sum for successive Interest Periods, each having a duration as follows:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or the relevant part of the Loan; and
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2 per cent. per annum higher than the rate which would have applied if that Unpaid Sum had not become
due.
|
(b) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and
payable.
|
8.4 |
Notification of rates of interest
|
9 |
INTEREST PERIODS
|
9.1 |
Duration of Interest Periods
|
(a) |
The first Interest Period for the Loan shall commence on the first Utilisation Date and end on the last day of the Interest Period applicable to the fourth and last Advance and each subsequent
Interest Period shall commence on the expiry of the preceding Interest Period.
|
(b) |
The first Interest Period for the second and any subsequent Advance (other than the last Advance to be drawn) shall start on the Utilisation Date of such Advance and end on the last day of the
Interest Period applicable to the fourth and last Advance.
|
(c) |
The first Interest Period for the fourth and last Advance shall start on Utilisation Date of such Advance and end on the date falling 3 months thereafter.
|
(d) |
Subject to paragraphs (a) – (c) above, the Loan shall have one Interest Period only at any time.
|
(e) |
The first Interest Period of each Advance shall end on the same date as that of the last Advance to be drawn. All subsequent Interest Periods shall be three Months.
|
(f) |
Notwithstanding paragraphs (a) – (c) above:
|
(i) |
the then current Interest Period of Tranche C as at the Second Supplemental Effective Date, ended on the Sale Date;
|
(ii) |
the next Interest Period of Tranche C started on the Sale Date and shall end on the last day of the Interest Period applicable to Tranche D;
|
(iii) |
each subsequent Interest Period of Tranche C shall start on the last day of the preceding Interest Period;
|
(g) |
Notwithstanding paragraphs (a) – (c) above:
|
(I) |
the first Interest Period of Tranche E shall commence on Release Date A and end on the last day of the Interest Period applicable to Tranche C;
|
(II) |
the first Interest Period of Tranche F shall commence on Release Date B and end on the last day of the Interest Period applicable to Tranche C; and
|
(III) |
each subsequent Interest Period of Tranche E and Tranche F shall start on the last day of the preceding Interest Period.
|
9.2 |
Non-Business Days
|
10 |
FEES
|
10.1 |
Agency fee
|
10.2 |
Deferred Fee
|
(a) |
The Borrowers shall pay to the Facility Agent a non-refundable deferred fee (for the account of the Lenders pro-rata to their Commitments);
|
(i) |
in respect of each of Tranche A, Tranche B and Tranche D, in an amount equal to 2 per cent. of the Commitments as at the date of this Agreement applicable to that Tranche and in each case on the
relevant Payment Date;
|
(ii) |
in respect of Tranche C, in an amount equal to 2.5 per cent. of $15,200,000 (to the extent that, at the relevant Payment Date, such amount of Tranche C has not been deemed to constitute Tranche E
or, as the case may be, Tranche F in accordance with Clause 5.8 (Currency and amount of the New Tranches) in which case sub-paragraphs (iii) and (iv) below shall apply);
|
(iii) |
in respect of Tranche E, in an amount equal to 2.5 per cent. of $7,000,000 on the relevant Payment Date; and
|
(iv) |
in respect of Tranche F, in an amount equal to 2.5 per cent. of $8,200,000 on the relevant Payment Date.
|
(b) |
In this Clause 10.2 (Deferred Fee):
|
(i) |
the Relevant Date in relation to the Ship applicable to that Tranche (and, in the case of Ship C, subject to the Waiver Period and Clause 7.5 (Additional
mandatory prepayment));
|
(ii) |
the date on which that Tranche is prepaid or repaid in full (and, in the case of Ship C, subject to the Waiver Period and Clause 7.5 (Additional mandatory
prepayment));
|
(iii) |
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 27.19 (Acceleration);
|
(iv) |
the relevant Termination Date; and
|
(v) |
the last day of the Security Period.
|
11 |
TAX GROSS UP AND INDEMNITIES
|
11.1 |
Definitions
|
(a) |
In this Agreement:
|
(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.
|
11.2 |
Tax gross-up
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b) |
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.
|
11.3 |
Tax indemnity
|
(a) |
The Obligors shall (within five Business Days of demand by the Facility Agent acting on the instructions of a Protected Party or claiming on its own behalf) pay to a Protected Party an amount equal
to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax
purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 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.
|
11.4 |
Tax Credit
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b) |
that Finance Party has obtained and utilised that Tax Credit,
|
11.5 |
Stamp taxes
|
11.6 |
VAT
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to
be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and
such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount
equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”)
under a Finance Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for
that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an
additional amount equal to the amount of the VAT. The Recipient must (where this sub-paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the
relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an
amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for
the full amount of such cost or expense, including such part of it as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from
the relevant tax authority.
|
(d) |
Any reference in this Clause 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 or equivalent provisions imposed elsewhere) 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.
|
11.7 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s
compliance with FATCA; and
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any
other law, regulation, or exchange of information regime.
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a
FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its
reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a)
above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party
until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e) |
If a Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten
Business Days of:
|
(i) |
where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii) |
where a Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(iv) |
supply to the Facility Agent:
|
(v) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
(vi) |
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.
|
11.8 |
FATCA Deduction
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in
respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is
making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
12 |
INCREASED COSTS
|
12.1 |
Increased costs
|
(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,
|
(iii) |
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV.
|
(b) |
In this Agreement:
|
(i) |
“Basel III” means:
|
(A) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III:
International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision
in December 2010, each as amended, supplemented or restated;
|
(B) |
the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text” published by
the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(C) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.
|
(ii) |
“CRD IV” means:
|
(A) |
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) No.
648/2012, 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 Directive (EU) 2019/878; 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,
|
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.
|
12.3 |
Exceptions
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b) |
attributable to a FATCA Deduction required to be made by a Party;
|
(c) |
compensated for by Clause 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.
|
13 |
OTHER INDEMNITIES
|
13.1 |
Currency indemnity
|
(a) |
If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted
from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:
|
(i) |
making or filing a claim or proof against that Obligor; or
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
13.2 |
Other indemnities
|
(a) |
Each Obligor shall, within 5 Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i) |
the occurrence of any Event of Default;
|
(ii) |
a failure by a Transaction Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 34 (Sharing among the Finance Parties);
|
(iii) |
funding, or making arrangements to fund, its participation in any Advance requested by the Borrowers in a Utilisation Request but not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default or negligence by that Secured Party alone); or
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by 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 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
|
(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 35.11 (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
|
14.1 |
Mitigation
|
(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 |
COSTS AND EXPENSES
|
15.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement or in a Security Document; and
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
15.2 |
Amendment costs
|
(a) |
a Transaction Obligor requests an amendment, waiver or consent; or
|
(b) |
an amendment is required pursuant to Clause 35.9 (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,
|
15.3 |
Enforcement and preservation costs
|
16 |
GUARANTEE AND INDEMNITY
|
16.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by each Transaction Obligor other than the Guarantor of all such other Transaction Obligor’s obligations under the Finance Documents;
|
(b) |
undertakes with each Finance Party that whenever a Transaction Obligor other than the Guarantor does not pay any amount when due under or in connection with any Finance Document, the Guarantor
shall immediately on demand pay that amount as if it were the principal obligor; and
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance
Party immediately on demand against any cost, loss or liability it incurs as a result of a Transaction Obligor other than the Guarantor not paying any amount which would, but for such unenforceability, invalidity or
illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this
Clause 16 (Guarantee and Indemnity) if the amount claimed had been recoverable on the basis of a guarantee.
|
16.2 |
Continuing guarantee
|
16.3 |
Reinstatement
|
16.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Transaction Obligor or other person;
|
(b) |
the release of any other Transaction Obligor or any other person under the terms of any composition or arrangement with any creditor of Transaction Obligor;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or
enforcing any rights against, or security over assets of, any Transaction Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to
realise the full value of any security;
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Transaction Obligor or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including,
without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
16.5 |
Immediate recourse
|
16.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
|
(b) |
hold any moneys received from the Guarantor or on account of the Guarantor’s liability under this Clause 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
|
(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.
|
16.8 |
Additional security
|
16.9 |
Applicability of provisions of Guarantee to other Security
|
17 |
JOINT AND SEVERAL LIABILITY OF THE BORROWERS
|
17.1 |
Joint and several liability
|
17.2 |
Waiver of defences
|
(a) |
this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower;
|
(b) |
any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower;
|
(c) |
any Lender or the Security Agent releasing any other Borrower or any Security created by a Finance Document;
|
(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 at any time during the Security Period;
|
(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.
|
17.3 |
Principal Debtor
|
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
|
(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.
|
18 |
REPRESENTATIONS
|
18.1 |
General
|
18.2 |
Status
|
(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 (other than the Permitted Security) or other claim, by the Guarantor.
|
(b) |
The Guarantor is authorised to issue 2,100,000,000 shares of capital stock in aggregate, consisting of: (a) 2,000,000,000 registered shares of common stock, par value $0.0001, of which
approximately 8.4 million shares are issued and outstanding, and (b) 100,000,000 registered shares of preferred stock, par value $0.0001, of which 40,000 shares designated as Series B Preferred Stock are issued and
outstanding.
|
(c) |
None of the shares in a Borrower is subject to any option to purchase, pre-emption rights or similar rights.
|
18.4 |
Binding obligations
|
18.5 |
Validity, effectiveness and ranking of Security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery create, subject to the Perfection Requirements, the Security it purports to create
over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b) |
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c) |
Subject to the Perfection Requirements, the Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have first ranking
priority 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
|
(a) |
any law or regulation applicable to it;
|
(b) |
the constitutional documents of any Transaction Obligor; or
|
(c) |
any agreement or instrument binding upon it or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.7 |
Power and authority
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i) |
its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those Transaction Documents; and
|
(ii) |
in the case of a Borrower, its registration or continuing registration (as the case may be) 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
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
(b) |
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
18.9 |
Governing law and enforcement
|
(a) |
The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b) |
Any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognised and enforced in its
Relevant Jurisdictions.
|
18.10 |
Insolvency
|
(a) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.8 (Insolvency proceedings); or
|
(b) |
creditors’ process described in Clause 27.9 (Creditors’ process),
|
18.11 |
No filing or stamp taxes
|
18.12 |
Deduction of Tax
|
18.13 |
No default
|
(a) |
No Event of Default and, on the date of this Agreement and on each Utilisation Date, no Default is continuing or might reasonably be expected to result from the borrowing of any Advance or the
entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
(b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it (or any other
Transaction Obligor) or to which its (or any Transaction Obligor’s) assets are subject which might have a Material Adverse Effect.
|
18.14 |
No misleading information
|
(a) |
Any factual information provided by any Transaction Obligor for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if
any) at which it is stated.
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in any such information being untrue or misleading in any material respect.
|
18.15 |
Financial Statements
|
(a) |
Its unaudited financial statements were prepared in accordance with GAAP consistently applied.
|
(b) |
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.
|
(c) |
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).
|
18.16 |
Pari passu ranking
|
18.17 |
No proceedings pending or threatened
|
(a) |
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) of
or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry))
been started or threatened against it or any other Transaction Obligor.
|
(b) |
No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other regulatory body which might reasonably be expected to have a Material
Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been made against it or any other Transaction Obligor.
|
18.18 |
Validity and completeness of MOAs and Purchase Agreement
|
(a) |
Each MOA and the Purchase Agreement constitutes legal, valid, binding and enforceable obligations of the Sellers.
|
(b) |
The copies of each MOA and the Purchase Agreement delivered to the Facility Agent before the date of this Agreement (in relation to the Existing Ships) and on the Effective Date (in relation to the
New Ships) are true and complete copies.
|
(c) |
No further amendments or additions to a MOA (except for the entering with the relevant Seller into any required addendum, including but not limited to, in relation to the extension of the
cancelling date under each MOA) or the Purchase Agreement have been agreed nor have any rights under any MOA or the Purchase Agreement have been waived.
|
18.19 |
No rebates etc.
|
18.20 |
Valuations
|
(a) |
All information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation delivered to the Facility Agent in accordance with this Agreement was true and accurate as at
the date it was supplied or (if appropriate) as at the date (if any) at which it is stated to be given.
|
(b) |
It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer.
|
(c) |
There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such information was provided and the date of that
valuation which, in either case, renders that information untrue or misleading in any material respect.
|
18.21 |
No breach of laws
|
(a) |
It has not breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
|
(b) |
No Transaction Obligor or any Affiliate thereof is in violation of and nor shall it violate any of the country or list based economic and trade sanctions administered and enforced by OFAC that are
described or referenced at http://ustreas.gov/offices/enforcement/ofac or as otherwise published from time to time.
|
18.22 |
No Charter
|
18.23 |
Compliance with Environmental Laws
|
18.24 |
No Environmental Claim
|
18.25 |
No Environmental Incident
|
18.26 |
ISM and ISPS Code compliance
|
18.27 |
Taxes paid
|
(a) |
It is not materially overdue in the filing of any Tax returns and it is not overdue in the payment of any amount in respect of Tax.
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes.
|
18.28 |
Financial Indebtedness
|
18.29 |
Overseas companies
|
18.30 |
Good title to assets
|
18.31 |
Ownership
|
(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) |
On and from the Delivery Date of each Ship, the relevant Borrower shall be the sole legal and beneficial owner of that Ship, its Earnings and its Insurances.
|
(c) |
With effect on and from the date of its creation or intended creation, each Transaction Obligor will be the sole legal and beneficial owner of any asset that is the subject of any Transaction
Security created or intended to be created by such Transaction Obligor.
|
(d) |
The constitutional documents of each Transaction Obligor do not and could not restrict or inhibit any transfer of the shares of a Borrower on creation or enforcement of the security conferred by
the Security Documents.
|
18.32 |
Centre of main interests and establishments
|
18.33 |
Place of business
|
18.34 |
No employee or pension arrangements
|
18.35 |
Sanctions
|
(a) |
No Transaction Obligor:
|
(i) |
is a Prohibited Person;
|
(ii) |
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person;
|
(iii) |
owns or controls a Prohibited Person; or
|
(iv) |
has a Prohibited Person serving as a director, officer or, to the best of its knowledge, employee.
|
(b) |
No proceeds of the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person nor shall they be otherwise directly or indirectly, applied in a manner or for
a purpose prohibited by Sanctions.
|
18.36 |
US Tax Obligor
|
18.37 |
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.
|
18.38 |
Patriot Act
|
18.39 |
Repetition
|
19 |
MOST FAVOURED NATION
|
20 |
INFORMATION UNDERTAKINGS
|
20.1 |
General
|
(a)
|
in relation to the Original Borrowers, on and from the date of this Agreement; and
|
(b)
|
in relation to the New Owners, on and from the Effective Date,
|
20.2 |
Financial statements
|
(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.
|
20.4 |
DAC6
|
(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
|
(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 upon becoming aware of the same, the details of any breach under any Pool Agreement or any Approved Charter (either by the relevant Borrower or the Approved Pool Manager), including,
without limitation, any payment default by the Approved Pool Manager in relation to the payment of the distributions due to the relevant Borrower thereunder;
|
(e) |
promptly upon becoming aware of the same, to the best of its knowledge, any breach by the Approved Pool Manager in relation to any credit or facility agreement to which it is a party or any event
of default (howsoever defined) thereunder and, to the extent of its knowledge, notification of any proceedings (threatened or pending) against the Approved Pool Manager by its creditors under any such credit or facility
agreement;
|
(f) |
promptly, its constitutional documents where these have been amended or varied;
|
(g) |
promptly, such further information and/or documents regarding:
|
(i) |
each Ship, goods transported on each Ship, the Earnings or the Insurances;
|
(ii) |
the Security Assets;
|
(iii) |
compliance of the Transaction Obligors with the terms of the Transaction Documents;
|
(iv) |
the financial condition, business and operations of any Transaction Obligor,
|
(h) |
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).
|
20.7 |
Use of websites
|
(a) |
Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders (the “Website
Lenders”) which accept this method of communication by posting this information onto an electronic website designated by the Borrowers and the Facility Agent (the “Designated Website”)
if:
|
(i) |
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(ii) |
both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii) |
the information is in a format previously agreed between the relevant Obligor and the Facility Agent (acting on the instructions of the Majority Lenders).
|
(b) |
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors or
any of them and the Facility Agent.
|
(c) |
An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
(i) |
the Designated Website cannot be accessed due to technical failure;
|
(ii) |
the password specifications for the Designated Website change;
|
(iii) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v) |
if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
(d) |
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligors
shall comply with any such request within 10 Business Days.
|
20.8 |
“Know your customer” checks
|
(a) |
If:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii) |
any change in the status of a Transaction Obligor (including, without limitation, a change of ownership of a Transaction Obligor) after the date of this Agreement; or
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of a Servicing Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Party (for
itself) in order for that Servicing Party to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents.
|
20.9 |
Anti-money laundering
|
21 |
PURCHASE AGREEMENT AND MOA UNDERTAKINGS
|
21.1 |
General
|
(a)
|
in relation to the Original Borrowers, on and from the date of this Agreement; and
|
(b)
|
in relation to the New Owners, on and from the Effective Date,
|
21.2 |
No variation, release etc. of MOAs
|
(a) |
vary the Purchase Agreement;
|
(b) |
vary the MOA (except for the entering with the relevant Seller into any required addendum, including but not limited to, in in relation to the extension of the cancelling date under each MOA) to
which it is a party; or
|
(c) |
release, waive, suspend, subordinate or permit to be lost or impaired any interest or right of any kind which that Borrower has at any time to, in or in connection with, the Purchase Agreement, the
MOA to which it is a party or in relation to any matter arising out of or in connection with the Purchase Agreement or the MOA to which it is a party.
|
21.3 |
Provision of information relating to MOAs
|
(a) |
immediately inform the Facility Agent if any breach of the Purchase Agreement or the MOA to which it is a party occurs or a serious risk of such a breach arises and of any other event or matter
affecting the Purchase Agreement or that MOA which has or is reasonably likely to have a Material Adverse Effect; and
|
(b) |
upon the reasonable request of the Facility Agent, keep the Facility Agent informed as to any notice of readiness of delivery of its Ship.
|
21.4 |
No assignment etc. of MOA
|
22 |
GENERAL UNDERTAKINGS
|
22.1 |
General
|
(a)
|
in relation to the Original Borrowers, on and from the date of this Agreement; and
|
(b)
|
in relation to the New Owners, on and from the Effective Date,
|
22.2 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Facility Agent of,
|
(i) |
perform its obligations under the Transaction Documents to which it is a party;
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of each Ship of any Transaction Document to
which it is a party; and
|
(iii) |
as from the relevant Delivery Date, own and operate its Ship (in the case of a Borrower).
|
22.3 |
Corporate Existence
|
22.4 |
Compliance with laws
|
22.5 |
Environmental compliance
|
(a) |
comply with all Environmental Laws;
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals;
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
22.6 |
Environmental Claims
|
(a) |
any Environmental Claim against any Transaction Obligor which is current, pending or threatened; and
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any Transaction Obligor,
|
22.7 |
Taxation
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties
unless and only to the extent that:
|
(i) |
such payment is being contested in good faith;
|
(ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them and both have been disclosed in its latest financial statements delivered to the Facility Agent under Clause
20.2 (Financial statements); and
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b) |
No Obligor shall change its residence for Tax purposes.
|
22.8 |
Overseas companies
|
22.9 |
No change to centre of main interests
|
22.10 |
Pari passu ranking
|
22.11 |
Title
|
(a) |
On and from the relevant Delivery Date applicable its Ship, the relevant Borrowers shall hold the legal title to, and own the entire beneficial interest in that Ship, its Earnings and its
Insurances.
|
(b) |
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.
|
22.12 |
Negative pledge
|
(a) |
No Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, create or permit to subsist any Security over any of its assets which are, in the case of a Transaction
Obligor other than a Borrower, the subject of the Security created or intended to be created by the Finance Documents.
|
(b) |
No Borrower shall:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Transaction Obligor or any other member of the Group;
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
(c) |
Paragraphs (a) and (b) above do not apply to any Permitted Security.
|
22.13 |
Disposals
|
(a) |
No Obligor shall, enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of:
|
(i) |
in the case of 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 24.15 (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).
|
22.14 |
Merger
|
22.15 |
Change of business
|
(a) |
The Guarantor shall procure that no substantial change is made to the general nature of the business of the Guarantor from that carried on at the date of this Agreement of the holding of single
purpose ship owning subsidiaries and arrangement of acquisition, financing and the operation of vessels on behalf of these single purpose ship owning subsidiaries.
|
(b) |
No Borrower shall engage in any business other than the ownership and operation of its Ship.
|
22.16 |
Financial Indebtedness
|
22.17 |
Expenditure
|
22.18 |
Share capital
|
(a) |
purchase, cancel, redeem or retire 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 relevant 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; or
|
(d) |
appoint any further director or officer (unless the provisions of the relevant Shares Security are complied with).
|
22.19 |
Dividends and other distributions
|
(a) |
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);
|
(b) |
repay or distribute any dividend or share premium reserve; or
|
(c) |
redeem, repurchase, defease, retire or repay any of its shares or resolve to do so,
|
(i) |
no Event of Default has occurred and is continuing and no Event of Default would result from the making of that Distribution;
|
(ii) |
the Obligors are in compliance with all covenants under the Finance Documents;
|
(iii) |
the LTV is equal to or lower than 65 per cent. after the making of such Distribution and the prepayment required under sub-paragraph (iv) below; and
|
(iv) |
prior to or simultaneously with making that Distribution, the Borrowers prepay the Loan in an amount which is equal to twice the amount of that Distribution.
|
(d) |
Any prepayment pursuant to this Clause 22.19 (Dividends and other distributions) 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).
|
22.20 |
Other transactions
|
(a) |
be the creditor in respect of any loan or any form of credit to any person other than another Transaction Obligor and where such loan or form of credit is Permitted Financial Indebtedness;
|
(b) |
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which 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.
|
22.21 |
Unlawfulness, invalidity and ranking; Security imperilled
|
(a) |
make it unlawful for a Transaction Obligor to perform any of its obligations under the Transaction Documents 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.
|
22.22 |
No Subsidiaries
|
22.23 |
Employees and ERISA Compliance
|
22.24 |
Books and records
|
22.25 |
Further assurance
|
(a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly, and in any event within the time period specified by the Security Agent (acting on the instructions of the
Facility Agent which is acting on the instructions of the Majority Lenders) do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or
procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify acting reasonably (and
in such form as the Security Agent (acting on the instructions of the Facility Agent which is acting on the instructions of the Majority Lenders) may require in favour of the Security Agent or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance
Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of
any rights, powers and remedies of any of the Secured Parties provided by or pursuant to the Finance Documents or by law;
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Transaction Obligor located in any jurisdiction equivalent or similar to the Security
intended to be conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of
the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, take all such action as is available to it (including making all filings and registrations) as may be necessary for
the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed by itself or another Transaction Obligor pursuant to this Clause 22.25 (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.
|
22.26
|
Maintenance of cash collateral
|
23 |
INSURANCE UNDERTAKINGS
|
23.1 |
General
|
(a) |
The undertakings in this Clause 23 (Insurance Undertakings) remain in force on and from the Delivery Date applicable to the Ship owned by the relevant
Borrower 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.
|
(b) |
As at the Effective Date, the undertakings in this Clause 23 (Insurance Undertakings) shall not be applicable in relation to Ship A, Ship B and Ship C.
|
23.2 |
Maintenance of obligatory insurances
|
(a) |
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.
|
23.3 |
Terms of obligatory insurances
|
(a) |
in dollars;
|
(b) |
in the case of fire and usual marine risks and war risks, in an aggregate amount on an agreed value basis at least the greater of:
|
(i) |
120 per cent. of the Loan; and
|
(ii) |
the aggregate Market Values of the Ships;
|
(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.
|
23.4 |
Further protections for the Finance Parties
|
(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;
|
(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.
|
23.5 |
Renewal of obligatory insurances
|
(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.
|
23.6 |
Copies of policies; letters of undertaking
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b) |
a letter or letters or undertaking in a form required by the Facility Agent (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 23.4 (Further
protections for the Finance Parties);
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii) |
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv) |
they will, if they have not received notice of renewal instructions from 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.
|
23.7 |
Copies of certificates of entry
|
(a) |
a certified copy of the certificate of entry for that Ship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
|
(c) |
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to its
Ship.
|
23.8 |
Deposit of original policies
|
23.9 |
Payment of premiums
|
23.10 |
Guarantees
|
23.11 |
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 23.6 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to
which the Facility Agent has not given its prior approval (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.
|
23.12 |
Alteration to terms of insurances
|
23.13 |
Settlement of claims
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the
obligatory insurances.
|
23.14 |
Provision of copies of communications
|
(a) |
the Approved Brokers;
|
(b) |
the approved protection and indemnity and/or war risks associations; and
|
(c) |
the approved insurance companies and/or underwriters,
|
(i) |
that Borrower’s obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii) |
any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory
insurances.
|
23.15 |
Provision of information
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 23.16 (Mortgagee’s interest and additional perils insurances) or dealing
with or considering any matters relating to any such insurances,
|
23.16 |
Mortgagee’s interest and additional perils insurances
|
(a) |
The Security Agent shall be entitled from time to time to effect, maintain and renew a mortgagee’s interest marine insurance and a mortgagee’s interest additional perils insurance 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.
|
24 |
SHIP UNDERTAKINGS
|
24.1 |
General
|
(a) |
The undertakings in this Clause 24 (Ship Undertakings) remain in force on and from the Delivery Date applicable to the Ship owned by the relevant Borrower
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 24.15 (Restrictions on chartering, appointment of managers etc.)).
|
(b) |
As at the Effective Date, the undertakings in this Clause 24 (Ship Undertakings) shall no longer be applicable in relation to Ship A, Ship B and Ship C.
|
24.2 |
Ship’s names and registration
|
(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,
|
(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.
|
24.3 |
Repair and classification
|
(a) |
consistent with first class ship ownership and management practice; and
|
(b) |
so as to maintain the Approved Classification free of overdue recommendations and conditions with the Approved Classification Society.
|
24.4 |
Modifications
|
24.5 |
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.
|
24.6 |
Surveys
|
24.7 |
Inspection
|
24.8 |
Prevention of and release from arrest
|
(a) |
Each Borrower shall, in respect of the Ship owned by it, promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances;
|
(ii) |
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
|
(b) |
Each Borrower shall immediately upon receiving notice of the arrest of 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.
|
24.9 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations:
|
(i) |
relating to its business generally; and
|
(ii) |
relating to the Ship owned by it, its ownership, employment, operation, management and registration,
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals; and
|
(c) |
without limiting paragraph (a) above, not employ the Ship owned by it nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to
the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions (or which would be contrary to Sanctions if Sanctions were binding on each Transaction Obligor).
|
24.10 |
ISPS Code
|
(a) |
procure that the Ship owned by it and the company responsible for that Ship’s compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for that Ship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC in respect of that Ship.
|
24.11 |
Sanctions and Ship trading
|
(a) |
that the Ship owned by it shall not be used by or for the benefit of a Prohibited Person;
|
(b) |
that such Ship shall not be used in trading in any manner contrary to Sanctions (or which could be contrary to Sanctions if Sanctions were binding on each Obligor);
|
(c) |
that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances; and
|
(d) |
that each charterparty in respect of that Ship shall contain, for the benefit of the relevant Borrower owning that Ship, language which gives effect to the provisions of paragraph (c) of Clause
24.9 (Compliance with laws etc.) as regards Sanctions and of this Clause 24.11 (Sanctions and Ship trading) and which permits refusal of
employment or voyage orders if compliance would result in a breach of Sanctions (or which would result in a breach of Sanctions if Sanctions were binding on each Obligor).
|
24.12 |
Trading in war zones
|
(a) |
the prior written consent of the Security Agent acting on the instructions of the 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.
|
24.13 |
Provision of information
|
(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, to the extent applicable, any information relating to any Pool Agreement
or any Approved Charter in this regard,
|
24.14 |
Notification of certain events
|
(a) |
any casualty to that Ship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of that Ship for hire;
|
(d) |
any requirement or recommendation made in relation to 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,
|
24.15 |
Restrictions on chartering, appointment of managers etc.
|
(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, an Approved Pool 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 24.15 (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.
|
24.16 |
Notice of Mortgage
|
24.17 |
Sharing of Earnings
|
24.18 |
Charter assignment
|
(a) |
provide promptly to the Facility Agent a true and complete copy of any Charter exceeding 6 months (including all amendments) and all other documents related thereto for a term which exceeds 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) (other than in the case of an Approved Charter), 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).
|
24.19 |
Notification of compliance
|
24.20 |
Pool withdrawal
|
25 |
VALUATIONS
|
25.1 |
Valuations binding
|
25.2 |
Provision of information
|
(a) |
Each Borrower shall promptly provide the Facility Agent and any shipbroker acting under this Clause 25 (Valuations) 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.
|
25.3 |
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;
|
(ii) |
prior to making any Distribution for the purpose of the calculation of the LTV under Clause 22.19 (Dividends and other distributions); and
|
(iii) |
as at the date on which a Ship is to be sold or has become a Total Loss,
|
(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 the Borrowers’ expense, valuations of
that Ship, from Approved Valuers selected by the Facility Agent (acting on the instructions of the Majority Lenders), showing the Market Value of that Ship (which Market Value shall be notified to the Facility Agent in
writing).
|
26 |
EARNINGS ACCOUNT AND APPLICATION OF EARNINGS
|
26.1 |
Earnings Account
|
26.2 |
Payment of Earnings
|
26.3 |
Application of Earnings
|
(a) |
The Borrowers shall transfer from the Earnings Accounts (or any of them) 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,
|
(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 the Earnings Accounts.
|
26.4 |
Shortfall in Earnings
|
26.5 |
Application of funds
|
(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,
|
26.6 |
Location of Earnings Account
|
(a) |
comply with any requirement of the Facility Agent (acting on the instructions of the Majority Lenders) as to the location or relocation of the Earnings Account; and
|
(b) |
execute any documents which the Facility Agent (acting on the instructions of the Majority Lenders) specifies to create or maintain in favour of the Security Agent, Security over (and/or rights of
set-off, consolidation or other rights in relation to) the Earnings Account.
|
27 |
EVENTS OF DEFAULT
|
27.1 |
General
|
27.2 |
Non-payment
|
(a) |
its failure to pay is caused by:
|
(i) |
administrative or technical error; or
|
(ii) |
a Disruption Event; and
|
(b) |
payment is made within 3 Business Days of its due date.
|
27.3 |
Specific obligations
|
27.4 |
Other obligations
|
(a) |
A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 27.2 (Non-payment) and Clause 27.3
(Specific obligations)).
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 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.
|
27.5 |
Misrepresentation
|
27.6 |
Cross default
|
(a) |
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
(d) |
Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however
described).
|
(e) |
No Event of Default will occur under this Clause 27.6 (Cross default) in respect of the 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.
|
27.7 |
Insolvency
|
(a) |
A Transaction Obligor:
|
(i) |
is unable or admits inability to pay its debts as they fall due;
|
(ii) |
is deemed to, or is declared to, be unable to pay its debts under applicable law;
|
(iii) |
suspends or threatens to suspend making payments on any of its debts; or
|
(iv) |
obtains or receives a deferral or suspension of payments, a rescheduling or re-organisation of debt (or certain debt) or an arrangement with all or a substantial proportion (by number or value) of
creditors or of any class of them in respect of such deferral, suspension, rescheduling or re-organisation, strictly by court order or by the filing of documents with a court.
|
(b) |
A moratorium is officially declared in respect of any indebtedness of any Transaction Obligor.
|
(A) |
should a Transaction Obligor, by any reason, including without limitation, any actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (including any
Finance Party in its capacity as such) with a view to rescheduling, deferring, re-organising or suspending, any of its indebtedness, the existence of such negotiations or the entry, as a result of such negotiations, into any
agreement or contract with one or more creditors (including any Finance Party in its capacity as such) setting out the terms of any such rescheduling, deferral, reorganisation or suspension of its indebtedness, shall not in
itself constitute an Event of Default; and
|
(B) |
no Event of Default will occur under this Clause 27.7 (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.
|
27.8 |
Insolvency proceedings
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(i) |
the suspension of payments, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Transaction Obligor;
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of any Transaction Obligor;
|
(iii) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not a Transaction Obligor), receiver, administrator, administrative receiver,
compulsory manager or other similar officer in respect of any Transaction Obligor or any of its assets; or
|
(iv) |
enforcement of any Security over any assets of any Transaction Obligor,
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
|
(c) |
No Event of Default will occur under this Clause 27.8 (Insolvency proceedings) if any of the events described in paragraph (a) above occurs in respect of an
Approved Manager 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.
|
27.9 |
Creditors’ process
|
27.10 |
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 Seanergy Maritime Holdings 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.
|
27.11 |
Unlawfulness, invalidity and ranking
|
(a) |
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents.
|
(b) |
Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable 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.
|
27.12 |
Security imperilled
|
27.13 |
Cessation of business
|
27.14 |
Arrest
|
27.15 |
Expropriation
|
(a) |
an arrest or detention of a Ship referred to in Clause 27.14 (Arrest); or
|
(b) |
any Requisition.
|
27.16 |
Repudiation and rescission of agreements or breach of Pool Agreement
|
(a) |
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.
|
(b) |
Any relevant Borrower breaches any of the provisions of Pool Agreement to which it is a party which is capable of remedy and is not remedied within 5 Business Days.
|
27.17 |
Litigation
|
27.18 |
Material adverse change
|
27.19 |
Acceleration
|
(a) |
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall
become immediately due and payable;
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders; and/or
|
(d) |
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents,
|
27.20 |
Enforcement of security
|
28 |
CHANGES TO THE LENDERS
|
28.1 |
Assignments and transfers by the Lenders
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
28.2 |
Conditions of assignment or transfer
|
(a) |
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 28.5 (Procedure for transfer) is complied with.
|
(e) |
If:
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, a Transaction Obligor would be obliged to make a payment to the New 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),
|
(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.
|
28.3 |
Assignment or transfer fee
|
28.4 |
Limitation of responsibility of Existing Lenders
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents, the Transaction Security or any other documents;
|
(ii) |
the financial condition of any Transaction Obligor;
|
(iii) |
the performance and observance by any Transaction Obligor of its obligations under the Transaction Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Transaction Obligor and its related entities in connection with
its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document or the Transaction Security;
and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout the Security Period.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 28 (Changes to the Lenders);
or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its obligations under the Transaction Documents or otherwise.
|
28.5 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in Clause 28.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when
the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably
practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b) |
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied 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 28.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security,
each of the Transaction Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights
against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the “Discharged Rights and Obligations”);
|
(ii) |
each of the Transaction Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations
only insofar as that Transaction Obligor and the New Lender have assumed and/or acquired the same in place of that Transaction Obligor and the Existing Lender;
|
(iii) |
the Facility Agent, the Security Agent, the 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”.
|
28.6 |
Procedure for assignment
|
(a) |
Subject to the conditions set out in Clause 28.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below
when the Facility Agent 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 28.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the
Assignment Agreement;
|
(ii) |
the Existing Lender will be released from the obligations (the “Relevant Obligations”) expressed to be the subject of the release in the Assignment Agreement
(and any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii) |
the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause 28.6 (Procedure for assignment) to assign their rights under the Finance Documents
(but not, without the consent of the relevant Transaction Obligor or unless in accordance with Clause 28.5 (Procedure for transfer), to obtain a release by that Transaction Obligor
from the obligations owed to that Transaction Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set
out in Clause 28.2 (Conditions of assignment or transfer).
|
28.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower
|
28.8 |
Security over Lenders’ rights
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those
obligations or securities,
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for 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.
|
28.9 |
Pro rata interest settlement
|
(a) |
If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a “pro rata basis” to Existing Lenders and New Lenders
then (in respect of any transfer pursuant to Clause 28.5 (Procedure for transfer) or any assignment pursuant to Clause 28.6 (Procedure for assignment)
the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
|
(i) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but
excluding the Transfer Date (“Accrued Amounts”) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current
Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(ii) |
The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(A) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(B) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 28.9 (Pro rata interest settlement),
have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(b) |
In this Clause 28.9 (Pro rata interest settlement) references to “Interest Period” shall be construed to include a reference to any other period for accrual
of fees.
|
(c) |
An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 28.9 (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.
|
29 |
CHANGES TO THE TRANSACTION OBLIGORS
|
29.1 |
Assignment or transfer by Transaction Obligors
|
29.2 |
Release of security
|
(a) |
If a disposal of any asset subject to security created by a Security Document is made in the following circumstances:
|
(i) |
the disposal is permitted by the terms of any Finance Document;
|
(ii) |
the Majority Lenders agree to the disposal;
|
(iii) |
the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or
|
(iv) |
the disposal is being effected by enforcement of a Security Document,
|
(b) |
Without prejudice to paragraph (a) of this Clause 29.2 (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 29.2 (Release of security) (at the request and expense of the Borrowers) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve
that release. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document. Any release will not affect the obligations of any other Transaction Obligor under the Finance Documents.
|
30 |
THE FACILITY AGENT
|
30.1 |
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.
|
30.2 |
Instructions
|
(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) |
Any instructions given by the Majority Lenders or, as the case may be, the Lenders shall be in writing and any instructions given by the Majority Lenders on matters which do not require the consent
or instructions of all Lenders as specified in this Agreement shall be binding on all the Lenders.
|
(c) |
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.
|
(d) |
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.
|
(e) |
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.
|
(f) |
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 44 (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.
|
(g) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may
in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may
incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 30.2 (Instructions), in the absence of instructions, the Facility Agent shall not be obliged to take any
action (or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties.
|
(i) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party’s consent) in any legal or arbitration proceedings relating to any Finance
Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or
Security Documents.
|
30.3 |
Duties of the Facility Agent
|
(a) |
The Facility Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document or notice which is delivered to the Facility Agent for that Party by any
other Party.
|
(c) |
Without prejudice to Clause 28.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not apply to any Transfer
Certificate or any Assignment Agreement.
|
(d) |
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).
|
30.4 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent as a trustee or fiduciary of any other person.
|
(b) |
The Facility Agent shall not be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
30.5 |
Application of receipts
|
30.6 |
Business with the Group
|
30.7 |
Rights and discretions
|
(a) |
The Facility Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 27.2 (Non-payment));
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the 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,
|
(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.
|
30.8 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, a Transaction Obligor or any other person in, or in
connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in
connection with any Transaction Document; or
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured Party is non-public information the use of which may be regulated or prohibited by
applicable law or regulation relating to insider dealing or otherwise.
|
30.9 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c) |
whether any other event specified in any Transaction Document has occurred.
|
30.10 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 35.11 (Disruption to Payment Systems etc.) or any other provision of
any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Transaction
Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Transaction Document, the Security Property or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation,
for negligence or any other category of liability whatsoever) arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in
respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this
paragraph (b) subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the
Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that
purpose.
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent to carry out:
|
(i) |
any “know your customer” or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent’s liability, any liability of the Facility Agent arising under or in connection with any
Transaction Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the
Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount
of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or
not the Facility Agent has been advised of the possibility of such loss or damages.
|
30.11 |
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 35.11 (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.
|
30.12 |
Resignation of the Facility Agent
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrowers.
|
(b) |
Alternatively, the 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 30 (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;
|
30.13 |
Confidentiality
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its
divisions or departments.
|
(b) |
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance
Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c) |
Without prejudice to Clause 30.4 (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.
|
30.14 |
Relationship with the other Finance Parties
|
(a) |
Subject to Clause 28.9 (Pro rata interest settlement), the Facility Agent may treat a person shown in its records as Lender at the opening of business (in
the place of the Facility Agent’s principal office as notified to the Finance Parties from time to time) as a Lender acting through its Facility Office.
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the
Security Agent to perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent and any reference
to any instructions being given by or sought from any Finance Party or group of Finance Parties to or by the Security Agent in this Agreement must be given or sought through the Facility Agent.
|
(c) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the
Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 38.5 (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 38.2 (Addresses) and sub-paragraph (ii) of paragraph (a) of Clause 38.5 (Electronic communication) and the Facility Agent shall be entitled to treat
such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
30.15 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each Transaction Obligor;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the
Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction
Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions
contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting
the Security Assets.
|
30.16 |
Facility Agent’s management time
|
30.17 |
Deduction from amounts payable by the Facility Agent
|
30.18 |
Reliance and engagement letters
|
30.19 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a
Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in,
other facilities to such Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document,
|
30.20
|
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, as the case may be and subject to
Clause 44.2 (All Lender matters) all Lenders, and in doing so shall be deemed to have acted reasonably.
|
(b) |
The instructions or directions of the Majority Lenders or, as the case may be, all Lenders referred to in paragraph (a) above shall be provided in accordance with and are subject to, the provisions of Clause 28.2 (Instructions).
|
31 |
AMOUNTS PAID IN ERROR
|
(a) |
If the Facility Agent (acting on the instructions of the Majority Lenders) pays an amount to another Party and the Facility Agent notifies that Party that such payment was an Erroneous Payment then the Party to whom that
amount 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.
|
(b) |
Neither:
|
(i) |
the obligations of any Party to the Facility Agent; nor
|
(ii) |
the remedies of the Facility Agent,
|
(c) |
All payments to be made by a Party to the Facility Agent (whether made pursuant to this Clause 31 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.
|
(d) |
In this Agreement, “Erroneous Payment” means a payment of an amount by the Facility Agent (acting on the instructions of the Majority Lenders) to another Party which the Facility
Agent determines (in its sole discretion) was made in error.
|
32 |
THE SECURITY AGENT
|
32.1 |
Trust
|
(a) |
The Security Agent declares that it holds the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance
with this Clause 30.20 (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.
|
32.2 |
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 32.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent:
|
(i) |
is the independent and separate creditor of each Parallel Debt;
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery
of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d) |
The Parallel Debt of an Obligor shall be:
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii) |
increased to the extent that its Corresponding Debt has increased,
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
(B) |
increased to the extent that its Parallel Debt has increased,
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) to the
extent permitted by applicable law, shall be applied in accordance with Clause 35.5 (Application of receipts; partial payments).
|
(f) |
This Clause 32.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.
|
32.3 |
Enforcement through Security Agent only
|
32.4 |
Instructions
|
(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) |
Any instructions given by the Majority Lenders or, as the case may be, the Lenders shall be in writing and any instructions given by the Majority Lenders on matters which do not require the consent
or instructions of all Lenders as specified in this Agreement shall be binding on all the Lenders.
|
(c) |
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.
|
(d) |
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.
|
(e) |
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 32.28 (Application of receipts);
|
(B) |
Clause 32.29 (Permitted Deductions); and
|
(C) |
Clause 32.30 (Prospective liabilities).
|
(f) |
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 44 (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.
|
(g) |
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 (e) above,
|
(h) |
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.
|
(i) |
Without prejudice to the remainder of this Clause 32.4 (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.
|
(j) |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party’s consent) in any legal or arbitration proceedings relating to any Finance
Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or
Security Documents.
|
32.5 |
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).
|
32.6 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Transaction Obligor or any other person.
|
(b) |
The Security Agent shall not be bound to account to any other Secured Party for any sum or the profit element of any sum received by it for its own account.
|
32.7 |
Business with the Group
|
32.8 |
Rights and discretions
|
(a) |
The Security Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents;
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(C) |
if it receives any instructions to act in relation to the Transaction Security, that all applicable conditions under the Finance Documents for so acting have been satisfied; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Security Agent shall be entitled to carry out all dealings with the other Finance Parties through the Facility Agent and may give to the Facility Agent any notice or other communication
required to be given by the Security Agent to any Finance Party.
|
(c) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i) |
no Default has occurred;
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the 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,
|
(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 32.6 (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.
|
32.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, a Transaction Obligor or any other person in, or in
connection with, any Transaction Document or the transactions contemplated in the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in
connection with any Transaction Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Security Property or any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with, any Transaction Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or
regulation relating to insider dealing or otherwise.
|
32.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Transaction Obligor of its obligations under any Transaction Document; or
|
(c) |
whether any other event specified in any Transaction Document has occurred.
|
32.11 |
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,
|
(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.
|
32.12 |
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.
|
32.13 |
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 32.25 (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 30.20 (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.
|
32.14 |
Confidentiality
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its
divisions or departments.
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance
Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
(c) |
Without prejudice to Clause 32.6 (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.
|
32.15 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each Transaction Obligor;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document, the Security Property and any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Transaction Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Transaction Document, the
Security Property, the transactions contemplated by the Transaction Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction
Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Transaction Document, the transactions
contemplated by any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Security Assets, the priority of any of the Transaction Security or the existence of any Security affecting
the Security Assets.
|
32.16 |
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 32.12 (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:
|
(i) |
a Default;
|
(ii) |
the Security Agent being requested by a Transaction Obligor or the Majority Lenders to undertake duties which the Security Agent and the Borrowers agree to be of an exceptional nature or outside
the scope of the normal duties of the Security Agent under the Finance Documents; or
|
(iii) |
the Security Agent and the Borrowers agreeing that it is otherwise appropriate in the circumstances,
|
(c) |
If the Security Agent and the Borrowers fail to agree upon the nature of the duties, or upon the additional remuneration referred to in paragraph (b) above or whether additional remuneration is
appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Agent and approved by the Borrowers or, failing approval,
nominated (on the application of the Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Borrowers) and the
determination of any investment bank shall be final and binding upon the Parties.
|
32.17 |
Reliance and engagement letters
|
32.18 |
No responsibility to perfect Transaction Security
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Security Assets;
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the
execution of any Finance Document or of the Transaction Security;
|
(d) |
take, or to require any Transaction Obligor to take, any step to perfect its title to any of the Security Assets or to render the Transaction Security effective or to secure the creation of any
ancillary Security under any law or regulation; or
|
(e) |
require any further assurance in relation to any Security Document.
|
32.19 |
Insurance by Security Agent
|
(a) |
The Security Agent shall not be obliged:
|
(i) |
to insure any of the Security Assets;
|
(ii) |
to require any other person to maintain any insurance; or
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the
insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind.
|
32.20 |
Custodians and nominees
|
32.21 |
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.
|
32.22 |
Additional Security Agents
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction,
|
(b) |
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the
duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c) |
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that
appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
32.23 |
Acceptance of title
|
32.24 |
Releases
|
32.25 |
Winding up of trust
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Security Documents have been fully and finally discharged; and
|
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Transaction Obligor pursuant to the Finance
Documents,
|
(i) |
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under
each of the Security Documents; and
|
(ii) |
any Security Agent which has resigned pursuant to Clause 32.13 (Resignation of the Security Agent) shall release, without recourse or warranty, all of its
rights under each Security Document.
|
32.26 |
Powers supplemental to Trustee Acts
|
32.27 |
Disapplication of Trustee Acts
|
32.28 |
Application of receipts
|
(a) |
in discharging any sums owing to the Security Agent (in its capacity as such) other than pursuant to Clause 32.2 (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 35.5 (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.
|
32.29 |
Permitted Deductions
|
(a) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to
make from any distribution or payment made by it under this Agreement; and
|
(b) |
pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of
the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
32.30 |
Prospective liabilities
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
32.31 |
Investment of proceeds
|
32.32 |
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.
|
32.33 |
Good discharge
|
(a) |
Any payment to be made in respect of the Secured Liabilities by the Security Agent may be made to the Facility Agent on behalf of the Secured Parties and any payment made in that way shall be a
good discharge, to the extent of that payment, by the Security Agent.
|
(b) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) above in the same currency as that in which the obligations and liabilities owing to the
relevant Finance Party are denominated.
|
32.34 |
Amounts received by Obligors
|
32.35 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Transaction Obligor or any person who is party to, or referred to in, a
Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in,
other facilities to such Transaction Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Transaction Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrowers or any person who is a party to, or referred to in, a Finance Document, 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.
|
32.36 |
Majority Lenders’ Instructions
|
(a) |
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, subject to Clause 44.2 (All Lender matters) all Lenders, as the case may be) and in doing so shall be deemed to have
acted reasonably.
|
(b) |
The instructions or directions of the Majority Lenders or, as the case may be, all Lenders referred to in paragraph (a) above shall be provided in accordance with, and are subject to, the provisions of Clause 32.4 (Instructions).
|
(c) |
Notwithstanding the provisions of Clause 32.4 (Instructions), 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.
|
(d) |
Notwithstanding the provisions of Clause 32.4 (Instructions), in the absence of instructions from the Facility Agent, the Security Agent shall not be
obliged to take any action.
|
33 |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
34 |
SHARING AMONG THE FINANCE PARTIES
|
34.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b) |
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by
the Facility Agent and distributed in accordance with Clause 35 (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 35.5 (Application of receipts; partial payments).
|
34.2 |
Redistribution of payments
|
34.3 |
Recovering Finance Party’s rights
|
34.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share
of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay)
(the “Redistributed Amount”); and
|
(b) |
as between the relevant Transaction Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Transaction
Obligor.
|
34.5 |
Exceptions
|
(a) |
This Clause 34 (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.
|
35 |
PAYMENT MECHANICS
|
35.1 |
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.
|
35.2 |
Distributions by the Facility Agent
|
35.3 |
Distributions to a Transaction Obligor
|
35.4 |
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.
|
35.5 |
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.
|
35.6 |
No set-off by Transaction Obligors
|
35.7 |
Business Days
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due
date.
|
35.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from a Transaction Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
|
35.9 |
Change of currency
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency
unit of that country designated by the Facility Agent (acting on the instructions of the Majority Lenders) (after consultation with the 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.
|
35.10 |
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.
|
35.11 |
Disruption to Payment Systems etc.
|
(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 44 (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 35.11 (Disruption to Payment Systems etc.); and
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
36 |
SET-OFF
|
37 |
BAIL-IN
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
38 |
NOTICES
|
38.1 |
Communications in writing
|
38.2 |
Addresses
|
(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),
|
38.3 |
Delivery
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i) |
if by way of fax, when received in legible form;
|
(ii) |
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or
|
(iii) |
if by way of electronic mail, in accordance with Clause 38.5 (Electronic communication),
|
(b) |
Any communication or document to be made or delivered to a Servicing Party will be effective only when actually received by that Servicing Party and then only if it is expressly marked for the
attention of the department or officer of that Servicing Party specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Party shall specify for
this purpose).
|
(c) |
All notices from or to a Transaction Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d) |
Any communication or document made or delivered to the 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.
|
38.4 |
Notification of address and fax number
|
38.5 |
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 38.5 (Electronic communication).
|
38.6 |
English language
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Facility Agent (acting on the instructions of the Majority Lenders), accompanied by a certified English translation prepared by a translator approved by
the Facility Agent (acting on the instructions of the Majority Lenders) and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
39 |
CALCULATIONS AND CERTIFICATES
|
39.1 |
Accounts
|
39.2 |
Certificates and determinations
|
39.3 |
Day count convention
|
40 |
PARTIAL INVALIDITY
|
41 |
REMEDIES AND WAIVERS
|
42 |
SETTLEMENT OR DISCHARGE CONDITIONAL
|
43 |
IRREVOCABLE PAYMENT
|
44 |
AMENDMENTS AND WAIVERS
|
44.1 |
Required consents
|
(a) |
Subject to Clause 44.2 (All Lender matters) and Clause 44.3 (Other exceptions) any term of the Finance Documents
may be amended or waived only with the consent of the Majority Lenders and, 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 44 (Amendments and Waivers).
|
(c) |
Without prejudice to the generality of Clause 30.7 (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 28.9 (Pro rata interest settlement) shall apply to this Clause 44 (Amendments and Waivers).
|
44.2 |
All Lender matters
|
(a) |
the definition of “Majority Lenders” in Clause 1.1 (Definitions);
|
(b) |
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(c) |
a reduction in the 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 29 (Changes to the Transaction Obligors);
|
(g) |
any provision which expressly requires the consent of all the Lenders;
|
(h) |
this Clause 44 (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 24.9 (Compliance with laws, etc.) 24.11 (Sanctions and Ship trading), Clause 26 (Earnings Account and Application of
Earnings), Clause 28 (Changes to the Lenders), Clause 34 (Sharing among the Finance Parties), Clause 47 (Governing Law) or Clause 48 (Enforcement);
|
(j) |
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document (except in the case of a release of Transaction
Security as it relates to the disposal of an asset which is the subject of the Transaction Security and where such disposal is expressly permitted by the Majority Lenders or otherwise under a Finance Document);
|
(k) |
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:
|
(i) |
the 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,
|
(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,
|
44.3 |
Other exceptions
|
(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.
|
44.4 |
Obligor Intent
|
45 |
CONFIDENTIAL INFORMATION
|
45.1 |
Confidentiality
|
45.2 |
Disclosure of Confidential Information
|
(a) |
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, 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;
|
(b) |
to any person:
|
(i) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may
potentially succeed) it as Facility Agent or Security Agent and, in each case, to any of that person’s Affiliates, Related Funds, Representatives and professional advisers;
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be
made or may be made by reference to, one or more Finance Documents and/or one or more Transaction Obligors and to any of that person’s Affiliates, Related Funds, Representatives and professional advisers;
|
(iii) |
appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to receive communications, notices, information or documents delivered pursuant to the
Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 30.14 (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 28.8 (Security over Lenders’
rights);
|
(viii) |
who is a Party, a Transaction Obligor or any related entity of a Transaction Obligor;
|
(ix) |
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document; or
|
(x) |
with the consent of the Borrowers;
|
(A) |
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that
there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B) |
in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by
requirements of confidentiality in relation to the Confidential Information they receive and is informed that 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.
|
45.3 |
DAC6
|
45.4 |
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 47 (Governing Law);
|
(vi) |
the name of the Facility Agent;
|
(vii) |
date of each amendment and restatement of this Agreement;
|
(viii) |
amount of Total Commitments;
|
(ix) |
currency of the Facility;
|
(x) |
type of Facility;
|
(xi) |
ranking of Facility;
|
(xii) |
Termination Date for Facility;
|
(xiii) |
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xii) above; and
|
(xiv) |
such other information agreed between such Finance Party and the Borrowers,
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Transaction Obligors by a numbering service provider and the
information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c) |
Each Obligor represents, on behalf of itself and the other Transaction Obligors, that none of the information set out in sub-paragraphs (i) to (xiv) of paragraph (a) above is, nor will at any time
be, unpublished price-sensitive information.
|
45.5 |
Entire agreement
|
45.6 |
Inside information
|
45.7 |
Notification of disclosure
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 45.2 (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 45 (Confidential Information).
|
45.8 |
Continuing obligations
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available;
and
|
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
46 |
COUNTERPARTS
|
47 |
GOVERNING LAW
|
48 |
ENFORCEMENT
|
48.1 |
Jurisdiction
|
(a) |
Unless specifically provided in another Finance Document in relation to that Finance Document, the courts of England have exclusive jurisdiction to settle any dispute arising out of or in
connection with any Finance Document (including a dispute regarding the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document)
(a “Dispute”).
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause 48.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
48.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints Messrs Shoreside Agents Ltd, presently at 5 St Helen’s Place, London EC3A 6AB (T: +44 (0)20 3771 8869, M: + 44 (0) 7591 440086, Fax: +44 (0)20 3771 8870,
attention: Andrew Johnson) 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.
|
49 |
PATRIOT ACT NOTICE
|
49.1 |
PATRIOT Act Notice
|
Name of Borrower
|
Place of
Incorporation
|
Registration number
(or equivalent, if any)
|
Address for
Communication
|
MINOANSEA
MARITIME CO.
|
Republic of the Marshall Islands
|
115307
|
154 Vouliagmenis Avenue,
166 74 Glyfada, Athens Greece
Tel: +302130181507
Email: legal@usea.gr
Fax: +302109638404
|
EPANASTASEA
MARITIME CO.
|
Republic of the Marshall Islands
|
115299
|
154 Vouliagmenis Avenue,
166 74 Glyfada, Athens Greece
Tel: +302130181507
Email: legal@usea.gr
Fax: +302109638404
|
GOOD MARITIME
CO.
|
Republic of Liberia
|
C-125065
|
154 Vouliagmenis Avenue,
166 74 Glyfada, Athens Greece
Tel: +302130181507
Email: legal@usea.gr
Fax: +302109638404
|
TRADERS MARITIME
CO.
|
Republic of the Marshall Islands
|
117151
|
154 Vouliagmenis Avenue,
166 74 Glyfada, Athens Greece Tel: +302130181507
Email: legal@usea.gr
Fax: +302109638404
|
Name of Guarantor
|
Place of Incorporation
|
Registration number
(or equivalent, if
any)
|
Address for
Communication
|
United Maritime
Corporation
|
The Republic of the Marshall Islands
|
112801
|
154 Vouliagmenis Avenue,
166 74 Glyfada, Athens Greece
Tel: +302130181507
Email: legal@usea.gr
Fax: +302109638404
|
Name of Original Lender
|
Commitment
|
Address for Communication
|
Blue Ocean Onshore Fund LP
|
$27,048,528
|
Blue Ocean Onshore Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean 1839 Fund LP
|
$13,996,303
|
Blue Ocean 1839 Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean Income Fund LP
|
$7,767,560
|
Blue Ocean Income Fund LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
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
|
$5,377,810
|
EnTrust Global ICAV
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean Investments SPC, for and on behalf of Segregated Portfolio One
|
$1,602,983
|
Blue Ocean Investments SPC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean Income Fund II LP
|
$2,700,260
|
Blue Ocean Income Fund II LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
Blue Ocean Offshore Master Fund I LLC
|
$623,760
|
Blue Ocean Offshore Master Fund I LLC
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
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.
|
$2,700,260
|
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
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
Attention: Svein Engh / Omer
Donnerstein / Matthew Lux
|
BO FR SPV I LP
|
$1,782,536
|
BO FR SPV I LP
c/o EnTrust Global Partners Offshore LP
375 Park Avenue
New York, NY 10152
Email: sengh@entrustglobal.com
/odonnerstein@entrustglobal.com/
mlux@entrustglobal.com
|
Name of Facility Agent
|
Address for Communication
|
Kroll Agency Services Limited
|
The News Building, Level 6, 3 London Bridge Street, London, England SE1 9SG
Fax: + 44 207 354 6132
Attention: Kroll Agency and Trustee Services Limited (deals@ats.kroll.com)
|
Name of Security Agent
|
Address for Communication
|
Kroll Trustee Services Limited
|
The News Building, Level 6, 3 London Bridge Street, London, England SE1 9SG
Fax: + 44 207 354 6132
Attention: Kroll Agency and Trustee Services Limited (deals@ats.kroll.com)
|
1 |
Obligors
|
1.1 |
A copy of the constitutional documents of each Transaction Obligor.
|
1.2 |
A copy of a resolution of the board of directors of each Transaction Obligor:
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request) to be signed and/or despatched by it
under, or in connection with, the Finance Documents to which it is a party.
|
1.3 |
A copy 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 copy of 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 copy of 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 copy of 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 |
Finance Documents
|
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 any Subordination Agreement, if applicable.
|
3 |
Security
|
4 |
Legal opinions
|
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 |
Duly executed copies of the Purchase Agreement and each MOA and of all documents signed or issued by a Borrower or a Seller (or any of them) under or in connection with them.
|
5.2 |
Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution of the Purchase Agreement and each MOA by each of the parties
to them.
|
5.3 |
Evidence that any process agent referred to in Clause 48.2 (Service of process) has accepted its appointment.
|
5.4 |
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.
|
5.5 |
Evidence that each Earnings Account has been opened with the Account Bank.
|
5.6 |
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 first Utilisation Date.
|
5.7 |
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their “know your customer” or similar identification procedures in relation to the transactions
contemplated by the Finance Documents.
|
1 |
Borrower
|
2 |
Finance Documents
|
2.1 |
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (Conditions Precedent).
|
2.2 |
A duly executed original of any other document required to be delivered by each Finance Document if not otherwise referred to this Schedule 2 (Conditions Precedent).
|
3 |
Ship and other security
|
3.1 |
A duly executed original of the Account Security and the Shares Security in respect of the relevant Borrower and of each document to be delivered under or pursuant to each of them.
|
3.2 |
A duly executed original of the Mortgage, the General Assignment and any Charter Assignment in respect of the relevant Ship and of each document to be delivered under or pursuant to each of them
(including, without limitation, a notice of assignment in relation to the assignment of distributions under the Pool Agreement with Signal Maritime Aframax Pool Ltd and an acknowledgment in respect of such assignment from
the relevant Approved Pool Manager) together with documentary evidence that such 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.
|
3.3 |
Documentary evidence that the relevant Ship:
|
(a) |
has been unconditionally delivered by the relevant Seller to, and accepted by, the relevant Borrower under the MOA to which that Borrower is a party and that the full purchase price payable and all
other sums due to that Seller under the MOA, other than the sums to be financed pursuant to the relevant Advance, have been paid to that Seller;
|
(b) |
is definitively and permanently registered in the name of the relevant Borrower under the relevant Approved Flag;
|
(c) |
is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents;
|
(d) |
maintains the Approved Classification with the relevant Approved Classification Society free of all overdue recommendations and conditions of the relevant Approved Classification Society; and
|
(e) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
3.4 |
Documents establishing that the relevant Ship will, as from the relevant Utilisation Date, be managed commercially by an Approved Commercial Manager or, as the case may be, an Approved Pool Manager
(if applicable) and managed technically by an 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 that Approved Technical Manager and that Approved Commercial Manager; and
|
(b) |
copies of that 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 (and,
in the event that such other documents required under the ISM Code and ISPS Code in relation to that Ship are issued in the name of the relevant Borrower immediately after the relevant Delivery Date, the Borrowers shall
provide the same to the Facility Agent upon receipt thereof).
|
3.5 |
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 |
Legal opinions
|
5 |
Other documents and evidence
|
5.1 |
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 relevant Utilisation Date.
|
1 |
Borrower
|
(a) |
Any of the documents set out in Part A of Schedule 2 (Conditions Precedent) as may be required by the Facility Agent in respect of the relevant Borrower.
|
(b) |
A copy of certificate of an authorised signatory of the relevant Borrower certifying that each copy document which it is required to provide under this Part BC of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at the relevant Release Date.
|
2 |
Finance Documents
|
2.1 |
A duly executed original of each New Security Document (other than the New Manager’s Undertakings referred to below) in respect of such New Ship.
|
2.2 |
A duly executed original of any other document required to be delivered by each such New Security Document.
|
2.3 |
A duly executed original of any Subordination Agreement and any Subordinated Debt Security, if applicable.
|
3 |
Ship and other security
|
3.1 |
Documentary evidence that the relevant New Ship:
|
(a) |
has been unconditionally delivered by the relevant Seller to, and accepted by, the relevant Borrower under the MOA to which that Borrower is a party and that the full purchase price payable and all
other sums due to that Seller under the MOA, have been paid to that Seller;
|
(b) |
is definitively and permanently registered in the name of the relevant Borrower under the relevant Approved Flag;
|
(c) |
is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents;
|
(d) |
maintains the Approved Classification with the relevant Approved Classification Society free of all overdue recommendations and conditions of the relevant Approved Classification Society; and
|
(e) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
3.2 |
Documents establishing that the relevant New Ship will, as from the relevant Release Date, be managed commercially by an Approved Commercial Manager and managed technically by an Approved
Technical Manager on terms acceptable to the Facility Agent acting with the authorisation of all of the Lenders, together with:
|
(a) |
a New Manager’s Undertaking for that Approved Technical Manager and that Approved Commercial Manager; and
|
(b) |
copies of that Approved Technical Manager’s Document of Compliance and of that New 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 New Ship including without limitation an
ISSC (and, in the event that such other documents required under the ISM Code and ISPS Code in relation to that New Ship are issued in the name of the relevant Borrower immediately after the relevant Delivery Date, the
Borrowers shall provide the same to the Facility Agent upon receipt thereof).
|
3.3 |
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 |
Legal opinions
|
5 |
Other documents and evidence
|
5.1 |
Duly executed copies of the relevant MOA and of all documents signed or issued by a Borrower or a Seller (or any of them) under or in connection with them.
|
5.2 |
Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution of the relevant MOA by each of the parties to them.
|
5.3 |
Evidence that any process agent referred to in Clause 48.2 (Service of process) has accepted its appointment.
|
5.4 |
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.
|
5.5 |
Evidence that each Earnings Account of the relevant Borrower has been opened with the Account Bank.
|
5.6 |
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 relevant Release Date.
|
5.7 |
Such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their “know your customer” or similar identification procedures in relation to the transactions
contemplated by the Finance Documents.
|
From: |
[●]
|
To: |
Kroll Agency Services Limited
|
1 |
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation
Request.
|
2 |
We wish to borrow the Advance under Tranche [A][B][C][D] on the following terms:
|
Proposed Utilisation Date:
|
[●] 2023 (or, if that is not a Business Day, the next Business Day)
|
|
Amount:
|
$[●] or, if less, the Available Facility as follows:
|
3 |
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.
|
4 |
We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions
precedent) of the Agreement as they relate to the Advance is satisfied on the date of this Utilisation Request.
|
5 |
The net proceeds of the Advance should be [●].
|
6 |
This Utilisation Request is irrevocable.
|
[●]
|
|
authorised signatory for
|
|
[●]
|
[●]
|
|
authorised signatory for
|
|
[●]
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
|
[●]
|
|
authorised signatory for
|
|
[●]
|
To: |
Kroll Agency Services Limited as Facility Agent
|
From: |
[The Existing Lender] (the “Existing Lender”) and [The New Lender] (the “New Lender”)
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer
Certificate.
|
2 |
We refer to Clause 28.5 (Procedure for transfer) of the Agreement:
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender’s rights and obligations under the Agreement and the other
Finance Documents which relate to that portion of the Existing Lender’s Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 28.5 (Procedure for transfer) of the Agreement.
|
(b) |
The proposed Transfer Date is [●].
|
(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 38.2 (Addresses) of the Agreement
are set out in the Schedule.
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of
Existing Lenders) of the Agreement.
|
4 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5 |
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
6 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
[New Lender]
|
By: [●]
|
By: [●]
|
To: |
Kroll Agency Services Limited as Facility Agent and [●]
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”)
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment
Agreement.
|
2 |
We refer to Clause 28.6 (Procedure for assignment):
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which
correspond to that portion of the Existing Lender’s Commitment and participations in the Loan under the Agreement as specified in the Schedule.
|
(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender’s Commitments and participations in the Loan under the
Agreement specified in the Schedule.
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
(d) |
All rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents are assigned to the New Lender absolutely, free of any defects in
the Existing Lender’s title and of any rights or equities which the 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 38.2 (Addresses) are set out in
the Schedule.
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of
Existing Lenders).
|
7 |
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 28.7 (Copy of
Transfer Certificate or Assignment Agreement to 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.
|
[Existing Lender]
|
[New Lender]
|
By: [●]
|
By: [●]
|
Ship name
|
Name
of the
Borrower
owner
|
IMO
No.
|
Type
|
DWT
|
Approved Flag
|
Approved
Classification
Society
|
Approved Classification
|
“GODAM” renamed
“PAROSEA”
|
PAROSEA SHIPPING CO.
|
9297371
|
Aframax
|
113,553
|
Marshall Islands
|
Lloyd’s Register
|
+100 A1 Double Hull Tanker ESP,Ship Right (SDA,FDA,CM), *IWS, LI, Ice Class 1A FS, +LMC
IGS, UMS, CCS, NAV1, IBS, COW (LR), ETA, Green Passport, Part Higher Tensile Steel, PL(LR), SBT(LR),
SHipRight (BWMP (S), ES +1 (within 0.4L), PCWBT (06/2011), SERS, MCM, SCM)
|
“MANDALA” renamed
“BLUESEA”
|
BLUESEA SHIPPING CO.
|
9297357
|
Aframax
|
113,553
|
Marshall Islands
|
Lloyd’s Register
|
*100A1 Double Hull Oil Tanker, ESP, ShipRight (SDA, FDA, CM), *IWS, LI, Ice Class 1A FS, *LMC
IGS, UMS, CCS, NAV1, IBS, COW(LR), ETA, Part Higher Tensile Steel, PL (LR), SBT (LR), ShipRight (BWMP (S), ES
+ 1 (within 0.4L), PCWBT (02/06), SERS, SCM)
|
“THUNDERBOLT” renamed
“MINOANSEA”
|
MINONASEA MARITIME CO.
|
9388742
|
LR2
|
108,817
|
Marshall Islands
|
American Bureau of Shipping
|
+A1, Oil Carrier, ESP, +AMS, +ACCU, VEC, SH, RES, SHCM, POT, ESP, CRC, CPP, RW,RRDA
|
“TIMBERWOLF” renamed
“EPANASTASEA”
|
EPANASTASEA MARITIME CO.
|
9319686
|
LR2
|
109,647
|
Marshall Islands
|
Lloyd’s Register
|
+100A1 Double Hull Oil Tanker, ESP, ShipRight, (FDA,SDA,CM), *IWS, SPM, LI, +LMC IGS, UMS,
Shipright (SCM, MSPS), COW, SBT(LR),PL(LR) Part higher tensile steel, Shipright (IHM-EU+)
|
“GOODSHIP”
|
GOOD MARITIME CO.
|
9311476
|
Bulk
Carrier
|
177,536
|
Liberia
|
DNV
|
1A Bulk carrier BIS BWM (E(s, f)) E0 ESP HC(M) Holds(2,4,6,8))
|
“TRADERSHIP”
|
TRADERS MARITIME CO.
|
9310135
|
Bulk
Carrier
|
176,925
|
Marshall Islands
|
DNV
|
1A Bulk carrier BWM (T) E0 ESP HC(M) Holds (2,4,6,8) Recyclable
|
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 relevant Advance in accordance with Clause 5.4 (Lenders’ participation)
|
One Business Day before the intended Utilisation Date.
|
SIGNED by
|
)
|
duly authorised
|
)
|
as attorney-in-fact
|
)
|
for and on behalf of
|
)
|
MINOANSEA MARITIME CO.
|
)
|
its:
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
duly authorised
|
)
|
as attorney-in-fact
|
)
|
for and on behalf of
|
)
|
EPANASTASEA MARITIME CO.
|
)
|
its:
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
duly authorised
|
)
|
as attorney-in-fact
|
)
|
for and on behalf of
|
)
|
GOOD MARITIME CO.
|
)
|
its:
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
duly authorised
|
)
|
as attorney-in-fact
|
)
|
for and on behalf of
|
)
|
TRADERS MARITIME CO.
|
)
|
its:
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
GUARANTOR
|
|
SIGNED by
|
)
|
duly authorised
|
)
|
as attorney-in-fact
|
)
|
for and on behalf of
|
)
|
UNITED MARITIME CORPORATION
|
)
|
its:
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
ORIGINAL LENDERS
|
|
SIGNED by
|
)
|
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:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
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:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
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:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
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:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
duly authorised
|
)
|
for and on behalf of
|
)
|
BLUE OCEAN INVESTMENTS SPC
|
)
|
for and on behalf of
|
)
|
SEGREGATED PORTFOLIO ONE
|
)
|
By: EnTrust Global Partners Offshore LP
|
)
|
as its Investment Advisor
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
duly authorised
|
)
|
for and on behalf of
|
)
|
BLUE OCEAN INCOME FUND II LP
|
)
|
By: Blue Ocean GP LLC
|
)
|
as its General Partner
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
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:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
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:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SIGNED by
|
)
|
duly authorised
|
)
|
for and on behalf of
|
)
|
BO FR SPV I LP
|
)
|
By: EnTrust Global Ltd.
|
)
|
as its Investment Manager
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
FACILITY AGENT
|
|
SIGNED by
|
)
|
duly authorised
|
)
|
for and on behalf of
|
)
|
KROLL AGENCY SERVICES LIMITED
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
SECURITY AGENT
|
|
SIGNED by
|
)
|
duly authorised
|
)
|
for and on behalf of
|
)
|
KROLL TRUSTEE SERVICES LIMITED
|
)
|
in the presence of:
|
)
|
Witness’ signature:
|
)
|
Witness’ name:
|
)
|
Witness’ address:
|
)
|
37. Newbuilding Vessel (indicate with “yes” or “no” whether PART III applies) (optional)
N/A
|
38. Name and place of Builders (only to be filled in if PART III applies)
N/A
|
Signature (Owners)
Mi-Das Line S.A. Power Shipping S.A. /s/ Genji Ohkouchi
/s/ Genji Okochi
Name: Genji Ohkouchi Name: Genji Okochi Title: President
Title: President
|
Signature (Charterers)
Chrisea Maritime Co.
/s/ Stamatios Tsantanis
Nsme: Stamatios Tsantanis
Title: President
|
(a) |
The Owners shall
|
(b) |
The Vessel shall be properly documented on delivery in accordance with the laws of the flag state
indicated in Box 5 and the requirements of the classification society stated in Box 10. The Vessel upon delivery shall have her survey cycles up to date and trading and class certificates valid at the time of the delivery
|
(c) |
The delivery of the Vessel by the Owners and the taking over of the Vessel by the Charterers shall
constitute a full performance by the Owners of all the Owners’ obligations under this Clause 3, and thereafter the Charterers shall not be entitled to make or assert any claim against the Owners on account of any conditions, representations
or warranties expressed or implied with respect to the Vessel.
|
(a) |
Should the Vessel not be delivered latest by the cancelling date indicated in Box 15, the Charterers shall have the option of cancelling this Charter by giving the
Owners notice of cancellation within thirty-six (36) running hours after the cancelling date stated in Box 15, failing which this Charter shall remain in full force and effect.
|
(b) |
If it appears that the Vessel will be delayed beyond the cancelling date, the Owners may, as soon as they are in a position to state with reasonable certainty the
day on which the Vessel should be ready, give notice thereof to the Charterers asking whether they will exercise their option of cancelling, and the option must then be declared within one hundred and sixty-eight (168) running hours of the
receipt by the Charterers of such notice or within thirty-six (36) running hours after the cancelling date, whichever is the earlier. If the Charterers do not
|
(c) |
Cancellation under this Clause 5 shall be without prejudice to any claim the Charterers may otherwise have on the Owners under this Charter.
|
(a) |
to ascertain the condition of the Vessel and satisfy themselves that the Vessel is being properly
repaired and maintained. Such notice to be made no late than 30 days prior the Inspection or survey and the Charterers to keep the Owners well
informed of the Vessel's itinerary for inspection purpose. The costs and fees for such inspection or survey shall be paid by the Owners unless
the Vessel is found to require repairs or maintenance to meet a condition required by Class or the Vessel's Flag State in order to achieve the condition so provided;
|
(b) |
in dry-dock if the Charterers have not dry-docked Her in accordance with Clause 10(g). The costs and fees for such inspection or survey shall be paid by the
Charterers; and
|
for any other commercial reason they consider necessary (provided it does not unduly interfere with the commercial operation of the Vessel). The costs and fees for
such inspection and survey shall be paid by the Owners.
|
(a) |
(i) Maintenance and Repairs - During the Charter Period the Vessel shall be in the full possession
and at the absolute disposal for all purposes of the Charterers and under their complete control in every respect. The Charterers shall maintain the Vessel, her machinery, boilers, appurtenances and spare parts in a good state of repair, in
efficient operating condition and in accordance with good commercial maintenance practice and,
|
(ii) |
New Class and Other Safety Requirements - In the event of any improvement, structural changes or
new equipment becoming necessary for the continued operation of the Vessel by reason of new class requirements or by compulsory legislation (including
but not limited to Ballast Water Treatment System, New Panama, Sox and Nox) the cost and time of compliance shall be for Charterers account. If those new equipment needs to be removed when the Vessel will be redelivered, the
cost and time of removal shall be for Charterers account. Notwithstanding the foregoing, Charterers are allowed to make improvements to the Vessel provided cost of same to be for Charterers account subject to the prior
written consent of the Owners.)
|
(iii) |
Financial Security - The Charterers shall maintain financial security or responsibility in respect of third party liabilities as required by any government,
including federal, state or municipal or other division or authority thereof, to enable the Vessel, without penalty or charge, lawfully to enter, remain at, or leave any port, place, territorial or contiguous waters of any country, state or
municipality in performance of this Charter without any delay. This obligation shall apply whether or not such requirements have been lawfully imposed by such government or division or authority thereof.
|
(b) |
Operation of the Vessel - The Charterers shall at their own expense and by their own procurement man, victual, navigate, operate, supply, fuel and, whenever
required, repair the Vessel during the Charter Period and they shall pay all charges and expenses of every kind and nature whatsoever incidental to their use and operation of the Vessel under this Charter, including annual flag state fees and
any foreign general municipality and/or state taxes. The Master, officers and crew of the Vessel shall be the servants of the Charterers for all purposes whatsoever, even if for any reason appointed by the Owners.
|
(c) |
The Charterers shall keep the Owners
|
(d) |
Flag and Name of Vessel – See Clauses 33 and 34 During the Charter Period, the Charterers shall have the liberty to paint the Vessel in their own
colours, install and display their funnel insignia and fly their own house flag. The Charterers shall also have the liberty, with the Owners’ consent, which shall not be unreasonably
|
(e) |
Changes to the Vessel – Subject to Clause 10(a)(ii), the Charterers shall make no structural changes in the Vessel or changes in the machinery, boilers,
appurtenances or spare parts thereof without in each instance first securing the Owners’ approval thereof. If the Owners so agree, the Charterers shall, if the Owners so require, restore the Vessel to its former condition before the
termination of this Charter.
|
(f) |
Use of the Vessel’s Outfit, Equipment and Appliances - The Charterers shall have the use of all
outfit, equipment, and appliances on board the Vessel at the time of delivery, provided the same or their substantial equivalent shall be returned to the Owners on redelivery in the same good order and condition as when received, ordinary
wear and tear excepted. The Charterers shall from time to time during the Charter Period replace such items of equipment as shall be so damaged or worn as to be unfit for use. The Charterers are to procure that all repairs to or replacement
of any damaged, worn or lost parts or equipment be effected in such manner (both as regards workmanship and quality of materials) as not to diminish the value of the Vessel. The Charterers have the right to fit additional equipment, with Owners' prior consent not to be unreasonably withheld, at the Charterers' expense
|
(g) |
Periodical Dry-Docking - The Charterers shall dry-dock the Vessel and clean and paint her
underwater parts whenever the same may be
|
(a) |
The Charterers shall pay hire due to the Owners punctually in accordance with the terms of this Charter in respect of which time shall be of the essence.
|
(b) |
The Charterers shall pay to the Owners for the hire of the Vessel
|
(c) |
Payment of hire shall be made in cash without discount free of bank charges in the currency and in the manner indicated in Box 25 and at the place
mentioned in Box 26.
|
(d) |
Final payment of hire, if for a period of less than
|
(e) |
Should the Vessel be lost or missing, hire shall cease from the date and time when she was lost or last heard of. The date upon which the Vessel is to be treated as
lost or missing shall be ten (10) days after the Vessel was last reported or when the Vessel is posted as missing by Lloyd’s, whichever occurs first. Any hire paid in advance to be adjusted accordingly.
|
(f) |
Any delay in payment of hire shall entitle the Owners to interest at the rate per annum as agreed
in Box 24.
|
(g) |
Payment of interest due under sub-clause 11(f) shall be made within seven (7)
|
(h) |
Notwithstanding anything to the contrary contained herein, the Charterers shall make all
payments under this Charter without any set-off or counter claim whatsoever and free and clear of any withholding or deduction for, or on account of, any present or future income, freight, stamp or other taxes, levies,
imposts, duties, fees, charges, restrictions or conditions of any nature except any loss caused by the Owners.
|
|
* |
(a) |
During the Charter Period the Vessel shall be kept insured by the Charterers at their expense
against hull and machinery, war and Protection and Indemnity risks (and any risks against which it is compulsory to insure for the operation of the Vessel, including maintaining financial security in accordance with sub-clause 10(a)(iii))
|
(b) |
|
(c) |
|
(d) |
|
(e) |
The Owners shall upon the request of the Charterers, promptly execute such documents as may be required to enable the Charterers to abandon the Vessel to insurers
and claim a constructive total loss.
|
(f) |
For the purpose of insurance coverage against hull and machinery and war risks under the provisions of subclause 13(a), the value of the Vessel is the sum indicated
in Box 29.
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
The Charterers shall indemnify the Owners, in each case as properly documented and evidenced, against any loss, damage or documentd and reasonable expense incurred by the Owners arising out
of or in relation to the operation of the Vessel by the Charterers, and against any lien of whatsoever nature arising out of an event occurring during the Charter Period. If the Vessel be arrested or otherwise detained by reason of claims
or liens arising out of her operation hereunder by the Charterers, the Charterers shall at their own expense take all reasonable steps to secure that within a reasonable time the Vessel is released, including the provision of bail.
|
(b) |
If the Vessel be arrested or otherwise detained by reason of a claim or claims against the Owners, the Owners shall at their own expense take all reasonable steps
to secure that within a reasonable time the Vessel is released, including the provision of bail.
|
(c) |
The Charterers shall indemnify the Owners, in each case as properly documented and evidenced;
against any and all liabilities, obligations, taxes- imposed on, or suffered by the Owners and relating to the operation of the Vessel and this Charter (excluding the taxed levied on the Owners by the competent tax
authorities in its state of residence in relation to the Charterhire and (tax imposed on the overall net income of the Owners), losses, damages, penalties, fees, claims, actions, suits and cost (excluding loss of profit or business interruption expenses) of
whatsoever kind and nature which may be incurred by the Charterers (whether during or after the Charter Period) or incurred by the Owners during the Charter Period only and in consequence of or in any way relating to or
arising out of this Charter, the ownership, documentation, delivery, possession, use, operation, chartering, sub-chartering, condition, maintenance, or repair of the Vessel including without limitation, claims or penalties arising
from any violation of the laws of any foreign country or political subdivision thereof; any claim as a result of latent or other defects in the Vessel, whether or not discoverable by the Charterer or the Owners and any claims
for patent, trademark or copyright infringement in connection to this Charter or the Vessel, and any claims for injury or damages caused by pollution, leaking or spillage of cargo caried by the Vessel; and any claims by owners
of cargo or other third parties arising in connection with any of the matters aforesaid.
|
(d) |
If there arise any pollution event or incident by or on around the Vessel, in consequence of or
in any way relating to or arising out of, including without limitation, any presence, emission, release or leak of any pollutant in Charterers shall promptly take all necessary actions and steps to prevent occurrence of any
losses and/or damages to the Vessel and this parties lives and properties or occurrence of any violation of MARPOL or domestic law or regulation including OPA 90 or regulations adopting MARPOL as a result of which the Vessel
is ordered not to leave by the coast guard or police or prosecutors or other judicial persons, and if any such losses and/or damages occur or any claim is made by any coast guard or police or prosecutors or other judicial
persons for fine and other civil, criminal or administrative offence or made by any third party for liabilities against the Vessel or the Charterers or the Owners, then Charterers shall indemnify the Owners against the
aforesaid loss or damages or claim by way of settlement with such third parties or payments to them in accordance with P&I insurers recommendation and approvals as far as with respect to such claims covered by P&I
Insurance so that the Vessel, the Charterers and the Owners will entirely be discharged and released from such claim and remedied in respect of such losses, damages and claims.
|
(e) |
The Charterers shall not be obliged to indemnify the Owners under this Charter to the extent any
losses are caused by the gross neglligence or wilful misconduct of the Owners.
|
(a) |
The Charterers shall not assign this Charter nor sub-charter the Vessel on a bareboat basis except with the prior consent in writing of the Owners, which shall not
be unreasonably withheld, and subject to such terms and conditions as the Owners shall approve.
|
(b) |
The Owners shall not sell the Vessel during the currency of this Charter except with the prior
written consent of the Charterers, which shall not be unreasonably withheld or delayed, and subject to the buyer accepting an assignment of this Charter.
|
(a) |
* The Charterers are to procure that all documents issued during the Charter Period evidencing the
terms and conditions agreed in respect of carriage of goods shall contain a paramount clause incorporating any legislation relating to carrier’s liability for cargo compulsorily applicable in the trade; if no such legislation exists, the
documents shall incorporate the Hague Rules or the Hague-Visby
Rules. The documents shall also contain the New Jason Clause and the Both-to-Blame Collision Clause.
|
(b) |
(a) |
In the event of the Requisition for Hire of the Vessel by any governmental or other competent authority (hereinafter referred to as “Requisition for Hire”)
irrespective of the date during the Charter Period when “Requisition for Hire” may occur and irrespective of the length thereof and whether or not it be for an indefinite or a limited period of time, and irrespective of whether it may or will
remain in force for the remainder of the Charter Period, this Charter shall not be deemed thereby or thereupon to be frustrated or otherwise terminated and the Charterers shall continue to pay the stipulated hire in the manner provided by
this Charter until the time when the Charter would have terminated pursuant to any of the provisions hereof always provided however that in the event of “Requisition for Hire” any Requisition Hire or compensation received or receivable by the
Owners shall be payable to the Charterers during the remainder of the Charter Period or the period of the “Requisition for Hire” whichever be the shorter.
|
(b) |
In the event of the Owners being deprived of their ownership in the Vessel by any Compulsory Acquisition of the Vessel or requisition for title by any governmental
or other competent authority (hereinafter referred to as “Compulsory Acquisition”), then, irrespective of the date during the Charter Period when “Compulsory Acquisition” may occur, this Charter shall be deemed terminated as of the date of
such “Compulsory Acquisition”.
|
(a) |
For the purpose of this Clause, the words “War Risks” shall include any war (whether actual or threatened), act of war, civil war, hostilities, revolution,
rebellion, civil commotion, warlike operations, the laying of mines (whether actual or reported), acts of piracy, acts of terrorists, acts of hostility or malicious damage, blockades (whether imposed against all vessels or imposed selectively
against vessels of certain flags or ownership, or against certain cargoes or crews or otherwise howsoever), by any person, body, terrorist or political group, or the Government of any state whatsoever, which may be dangerous or are likely to
be or to become dangerous to the Vessel, her cargo, crew or other persons on board the Vessel.
|
(b) |
The Vessel, unless the written consent of the Owners be first obtained, shall not continue to or go through any port, place, area or zone (whether of land or sea),
or any waterway or canal, where it reasonably appears that the Vessel, her cargo, crew or other persons on board the Vessel, in the reasonable judgement of the Owners, may be, or are likely to be, exposed to War Risks. Should the Vessel be
within any such place as aforesaid, which only becomes dangerous, or is likely to be or to become dangerous, after her entry into it, the Owners shall have the right to require the Vessel to leave such area.
|
(c) |
The Vessel shall not load contraband cargo, or to pass through any blockade, whether such blockade be imposed on all vessels, or is imposed selectively in any way
whatsoever against vessels of certain flags or ownership, or against certain cargoes or crews or otherwise howsoever, or to proceed to an area where she shall be subject, or is likely to be subject to a belligerent’s right of search and/or
confiscation.
|
(d) |
If the insurers of the war risks insurance, when Clause 14 is applicable, should require payment of premiums and/or calls because, pursuant to the Charterers’
orders, the Vessel is within, or is due to enter and remain within, any area or areas which are specified by such insurers as being subject to additional premiums because of War Risks, then such premiums and/or calls shall be reimbursed by
the Charterers to the Owners at the same time as the next payment of hire is due.
|
(e) |
The Charterers shall have the liberty:
|
(i) |
to comply with all orders, directions, recommendations or advice as to departure, arrival, routes, sailing in convoy, ports of call, stoppages, destinations,
discharge of cargo, delivery, or in any other way whatsoever, which are given by the Government of the Nation under whose flag the Vessel sails, or any other Government, body or group whatsoever acting with the power to compel compliance with
their orders or directions;
|
(ii) |
to comply with the orders, directions or recommendations of any war risks underwriters who have the authority to give the same under the terms of the war risks
insurance;
|
(iii) |
to comply with the terms of any resolution of the Security Council of the United Nations, any directives of the European Community, the effective orders of any
other Supranational body which has the right to issue and give the same, and with national laws aimed at enforcing the same to which the Owners are subject, and to obey the orders and directions of those who are charged with their
enforcement.
|
(f) |
In the event of outbreak of war (whether there be a declaration of war or not)
|
(i) |
between any two or more of the following countries: the United States of America; Russia; the United Kingdom; France; and the People’s Republic of China,
|
(ii) |
between any two or more of the countries stated in Box 36, both the Owners and the Charterers shall
have the right to cancel this Charter subject to mutual agreement, whereupon the Charterers shall redeliver the Vessel to the Owners in accordance with Clause 15, if the Vessel has cargo on board after discharge thereof at destination, or if debarred under this Clause from reaching or entering
it at a near, open and safe port as directed by the
|
(a) |
Charterers’ Default
|
(i) |
the Charterers fail to pay hire in accordance with Clause 11. However, where there is a failure to make punctual payment of hire due to oversight, negligence,
errors or omissions on the part of the Charterers or their bankers, the Owners shall give the Charterers written notice of the number of clear banking days stated in Box 34 (as recognised at the agreed place of payment) in which to rectify
the failure, and when so rectified within such number of days following the Owners’ notice, the payment shall stand as regular and punctual.
|
(ii) |
the Charterers fail to comply with the requirements of:
|
(1) |
Clause 6 (Trading Restrictions)
|
(2) |
Clause 13(a) (Insurance and Repairs)
|
(iii) |
the Charterers fail to rectify any failure to comply with the requirements of sub-clause 10(a)(i)
(Maintenance and Repairs)
|
(b) |
Owners’ Default
|
(c) |
Loss of Vessel See also Clause 39
|
(d) |
Either party shall be entitled to terminate this Charter with immediate effect by written notice to the other party in the event of an order being made or
resolution passed for the winding up, dissolution, liquidation or bankruptcy of the other party (otherwise than for the purpose of reconstruction or amalgamation) or if a receiver is appointed, or if it suspends payment, ceases to carry on
business or makes any special arrangement or composition with its creditors.
|
(e) |
The termination of this Charter shall be without prejudice to all rights accrued due between the parties prior to the date of termination and to any claim that
either party might have.
|
|
|
Notwithstanding (a), (b) or (c) above, the parties may agree at any time to refer to mediation any difference and/or dispute arising out of or in connection with
this Contract.
|
(i) |
Either party may at any time and from time to time elect to refer the dispute or part of the dispute to mediation by service on the other party of a written notice
(the “Mediation Notice”) calling on the other party to agree to mediation.
|
(ii) |
The other party shall thereupon within 14 calendar days of receipt of the Mediation Notice confirm that they agree to mediation, in which case the parties shall
thereafter agree a mediator within a further 14 calendar days, failing which on the application of either party a mediator will be appointed promptly by the Arbitration Tribunal (“the Tribunal”) or such person as the Tribunal may designate
for that purpose. The mediation shall be conducted in such place and in accordance with such procedure and on such terms as the parties may agree or, in the event of disagreement, as may be set by the mediator.
|
(iii) |
If the other party does not agree to mediate, that fact may be brought to the attention of the Tribunal and may be taken into account by the Tribunal when
allocating the costs of the arbitration as between the parties.
|
(iv) |
The mediation shall not affect the right of either party to seek such relief or take such steps as it considers necessary to protect its interest.
|
(v) |
Either party may advise the Tribunal that they have agreed to mediation. The arbitration procedure shall continue during the conduct of the mediation but the
Tribunal may take the mediation timetable into account when setting the timetable for steps in the arbitration.
|
(vi) |
Unless otherwise agreed or specified in the mediation terms, each party shall bear its own costs incurred in the mediation and the parties shall share equally the
mediator’s costs and expenses.
|
(vii) |
The mediation process shall be without prejudice and confidential and no information or documents disclosed during it shall be revealed to the Tribunal except to
the extent that they are disclosable under the law and procedure governing the arbitration.
|
|
(a) |
Any notice to be given by either party to the other party shall be in writing and may be sent by
|
(b) |
The address of the Parties for service of such communication shall be as follows :
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature (
|
Signature (
|
|
/s/ Athanasios Voudris
|
/s/ Stavros Gyftakis
|
ATHANASIOS VOUDRIS | Stavros Gyftakis | |
Authorized signatory | Attorney-in-fact |
1.
|
Definitions
|
2. |
Charter Period
|
3. |
Delivery
|
(a) |
|
(b) |
|
(c) |
|
4. |
Time for Delivery
|
5. |
Cancelling
|
6. |
Familiarisation
|
7. |
Surveys on Delivery and Redelivery
|
(a) |
The
|
(b) |
Divers inspection on delivery/re-delivery
|
8. |
Inventories
|
9. |
Bunker fuels, oils and greases
|
10. |
Redelivery
|
11. |
Trading Restrictions
|
12. |
Contracts of Carriage
|
The
|
13. |
Maintenance and Operation
|
(a) |
Maintenance
|
(b) |
New Class and Other Regulatory Requirements
|
(i)*
|
In the event of any structural changes or new equipment becoming necessary for the continued operation of the Vessel by reason of new class requirements or by compulsory legislation (“Required Modification”), all such costs shall
be for the
|
(c) |
Financial Security
|
(d) |
Operation of the Vessel
|
(e) |
Information to
|
(f) |
Flag and Name of Vessel
|
(g) |
|
(h) |
Use of the Vessel’s Outfit and Equipment
|
(i) |
Periodical Dry-Docking
|
14. |
Inspection during the Charter Period
|
15. |
Hire
|
The
|
16. |
Mortgage
|
17. |
Insurance
|
See Clause 58.
|
18. |
Repairs
|
19. |
Total loss
|
20. |
Lien
|
21. |
Non-Lien
|
22. |
Indemnity - INTENTIONALLY OMITTED
|
(a) |
|
(b) |
|
(c) |
|
(d) |
|
23. |
Salvage
|
24. |
Wreck Removal
|
25. |
General Average
|
26. |
Assignment, Novation, Sub-Charter and Sale
|
27. |
Performance Guarantee
|
28. |
Anti-Corruption
|
29. |
Sanctions and Designated Entities
|
30. |
Requisition/Acquisition
|
31. |
Termination
|
The termination of this Charter
|
32. |
Repossession - INTENTIONALLY OMITTED
|
33. |
|
34. |
Notices
|
35. |
Partial Validity
|
36. |
Entire Agreement
|
37. |
Headings
|
38. |
Singular/Plural
|
1.
|
The Charterers shall have an option to purchase the Vessel (the “Purchase Option”) exercisable on each of the
|
|
|
|
|
2. |
To exercise their Purchase Option, the Charterers shall notify the Owners in writing not later than six (6)
|
3. |
If the Charterers exercise their Purchase Option, the ownership of the Vessel shall be transferred to them on
|
4. |
The Owners shall obtain and provide the Charterers with such documents and take such actions as the
|
5. |
The Owners warrant that the Vessel at the time of transfer of ownership shall be free of any of Owners’
|
6. |
The Owners make no representation or warranty as to the seaworthiness, value, condition, design,
|
7. |
In exchange for the transfer of ownership of the Vessel, the Charterers shall pay the Purchase Option Price to
|
8. |
Upon payment and transfer of ownership in accordance with Clause 7 above, this Charter Party and all rights
|
The Owners have agreed to and the Charterers shall arrange for the Vessel to be registered under the
|
Upon termination of this Charter Party for any reason whatsoever the Charterers shall immediately arrange
|
In the event of the Vessel being deleted from the Bareboat Charter Registry due to any default by the
|
Private & Confidential
|
CONTENTS
|
|
Clause
|
Page
|
39
|
Definitions and Interpretation
|
1
|
40
|
Charter of Vessel
|
17
|
41
|
Delivery of Vessel
|
18
|
42
|
Conditions Precedent
|
18
|
43
|
Extent of Lessor’s liability
|
19
|
44
|
Rent, payments and calculations
|
20
|
45
|
Costs and Expenses
|
25
|
46
|
Accounts
|
25
|
47
|
Indemnities
|
26
|
48
|
Taxes
|
29
|
49
|
Illegality
|
30
|
50
|
Increased Costs
|
31
|
51
|
Representations
|
35
|
52
|
General Undertakings
|
40
|
53
|
Financial covenants
|
46
|
54
|
Business Restrictions
|
46
|
55
|
Use and Employment
|
49
|
56
|
Maintenance and Operation
|
51
|
57
|
Title and Registration
|
56
|
58
|
Insurance
|
57
|
59
|
Asset Coverage Threshold
|
63
|
60
|
Risk, Total Loss and Damage
|
64
|
61
|
Requisition
|
65
|
62
|
Redelivery
|
66
|
63
|
Termination Events
|
67
|
64
|
Purchase Option and Purchase Obligation
|
71
|
65
|
Purchase of Vessel by Lessee
|
72
|
66
|
Rights following a Termination Event
|
73
|
67
|
Application of proceeds
|
75
|
68
|
Transfer of title
|
76
|
69
|
Substitute Performance
|
76
|
70
|
Further Assurances
|
77
|
71
|
Assignment
|
77
|
72
|
Disclosure of Information
|
77
|
73
|
Notices
|
78
|
74
|
Partial Invalidity
|
79
|
75
|
Remedies and Waivers
|
80
|
76
|
Amendments and Waivers
|
80
|
77
|
Contractual Recognition of Bail-In
|
80 |
78
|
Counterparts
|
81
|
79
|
Time of the Essence
|
81
|
80
|
Governing Law
|
81
|
81
|
Survival of Terms
|
81
|
82
|
Enforcement
|
82
|
Schedule 1 Conditions Precedent
|
83
|
|
Schedule 2 Form of Acceptance Certificate
|
88
|
39 |
Definitions and Interpretation
|
39.1 |
Definitions
|
(a) |
an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or
|
(b) |
in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of
that period without intervention or action.
|
(a) |
the Lessee ceases to be a direct wholly-owned subsidiary of the Guarantor; or
|
(b) |
any group of the existing members of the board of directors of the Guarantor, as at the date of this Charter, which ordinarily comprises a majority of the board of directors of the Guarantor, does not
ordinarily comprise a majority of the board of directors of the Guarantor; or
|
(c) |
the Disclosed Person ceases to own legally and ultimately beneficially at least 49.99 per cent of the voting power of the issued and outstanding share capital, of the Guarantor; or
|
(d) |
a person or persons acting in concert (other than the Disclosed Person):
|
(i) |
have the right or the ability to control, either directly or indirectly, the affairs, or composition of the majority of the board of directors (or equivalent of it), of the Guarantor; or
|
(ii) |
own legally and ultimately beneficially more than the voting power of the issued and outstanding share capital of the Guarantor which is owned by the Disclosed Person; or
|
(e) |
the Disclosed Person ceases to be the Chief Executive Officer of the Guarantor.
|
(a) |
the Lessor shall obtain title to the Vessel under the Memorandum of Agreement; and
|
(b) |
the Lessee shall accept delivery of the Vessel under this Charter.
|
(a) |
all moneys from time to time due or payable to the Lessee during the Charter Period arising out of the use or operation of the Vessel, including:
|
(i) |
all freight and hire, including (without limitation) payments of any nature under any charter, contract or other agreement for the employment, use, possession and/or operation of the Vessel;
|
(ii) |
compensation payable to the Lessee in the event of requisition of the Vessel for hire (including any other compensation for the use of the Vessel by any government authority or other competent authority), remuneration for salvage and
towage services, demurrage and detention moneys and other services performed by the Vessel; and
|
(iii) |
any compensation or other damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Vessel; and
|
(b) |
any sums recoverable under any loss of earnings insurances.
|
(a) |
from the Vessel; or
|
(b) |
from any other vessel in circumstances where:
|
(i) |
the Vessel or the Lessee or any Manager may be liable for Environmental Claims arising from the Spill; and/or
|
(ii) |
the Vessel may be arrested or attached in connection with any such Environmental Claim.
|
(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 inter-governmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to
in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other
jurisdiction.
|
(a) |
the Facility Agreement;
|
(b) |
any related hedging agreement or instrument;
|
(c) |
any document granted or to be granted in favour of any Finance Party as security for (inter alia) the loan made or to be made pursuant to the terms of the Facility Agreement or any part of it whether at the time such loan is drawn or
subsequently;
|
(d) |
the “Finance Documents” as defined in the Associated Charter; and
|
(e) |
any other document or agreement relating to any of the above or which is designated as a Finance Document by the Lessor from time to time,
|
(a) |
moneys borrowed and debit balances at banks or other financial institutions;
|
(b) |
any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);
|
(c) |
any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d) |
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any 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);
|
(g) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;
|
(h) |
any amount raised by the issue of redeemable shares (other than at the option of the issuer) before the final Payment Date or
are otherwise classified as borrowings under GAAP;
|
(i) |
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind the entry into this agreement is to raise finance or (ii) the agreement is in respect of the supply of assets or
services and payment is due more than 180 days after the date of supply;
|
(j) |
any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) of a type not referred to in any other paragraph of this definition having the commercial effect
of a borrowing or otherwise classified as borrowings under GAAP; and
|
(k) |
(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above.
|
(a) |
generally accepted accounting principles in the United States of America: or
|
(b) |
IFRS.
|
(a) |
the Insurances;
|
(b) |
the Requisition Compensation;
|
(c) |
the Earnings; and
|
(d) |
any Sub-Charter.
|
(a) |
the Lessor, the Security Trustee, any Receiver, any Delegate and any attorney, agent or other person appointed by them under the Operative Documents;
|
(b) |
each Affiliate of those persons; and
|
(c) |
any officers, directors, employees, advisers, representatives or agents of any of the above persons.
|
(a) |
all policies and contracts of insurance; and
|
(b) |
all entries in a protection and indemnity or war risks or other mutual insurance association,
|
(a) |
either:
|
(i) |
the most recent applicable Term SOFR (as of a day which is not more than 5 days before the Quotation Day) for the longest period (for which Term SOFR is available) which is less than the
relevant Interest Period; or
|
(ii) |
if no such Term SOFR is available for a period which is less than the relevant Interest Period, SOFR for a day which is no more than 5 days (and no less than two US Government Securities Business Days
before the Quotation Day; and
|
(b) |
the most recent applicable Term SOFR (as of a day which is not more than 5 days before the Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the relevant Interest Period.
|
(a) |
either:
|
(i) |
the applicable Term SOFR (as of 11am on the Quotation Day) for the longest period (for which Term SOFR is available) which is less than the relevant Interest Period; or
|
(ii) |
if no such Term SOFR is available for a period which is less than the relevant Interest Period, SOFR for the day which is two US Government Securities Business
Days before the Quotation Day; and
|
(b) |
the applicable Term SOFR (as of 11am on the Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the relevant Interest Period.
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any Relevant Party or the Group taken as a whole;
|
(b) |
the ability of any Relevant Party to perform its obligations under the Operative Documents to which it is a party;
|
(c) |
the validity, legality or enforceability of any Operative Document or the rights or remedies of any Relevant Party under any Operative Documents; or
|
(d) |
the validity, legality or enforceability of any Lien expressed to be created under any Security Document or the priority and ranking of any of such Security Document.
|
(a) |
this Charter (together with the Acceptance Certificate);
|
(b) |
the Memorandum of Agreement (together with the Bills of Sale);
|
(c) |
the Security Trust Deed;
|
(d) |
each Guarantee;
|
(e) |
the Security Documents;
|
(f) |
the Fee Letter;
|
(g) |
the Associated Charter;
|
(h) |
the “Operative Documents” as defined in the Associated Charter;
|
(i) |
any other document, instrument or agreement which is agreed in writing by the Lessor and the Lessee to be an Operative Document; and
|
(j) |
any and all certificates, notices and acknowledgements (including in respect of the Insurances) entered or to the be entered into pursuant to any of the documents referred in the preceding sub-clauses of this definition,
|
(a) |
on the Delivery Date, the Purchase Price; and
|
(b) |
on any other date after the Delivery Date, an amount equivalent to the Purchase Price as reduced by each instalment of Fixed Rent and, if applicable, the Balloon Rental which has been paid or prepaid by the Lessee by that time.
|
(a) |
any Liens created by the Operative Documents;
|
(b) |
any Liens created by the Finance Documents;
|
(c) |
unless a Potential Termination Event is continuing, any ship repairer’s or outfitter’s possessory lien in respect of the Vessel for an amount not exceeding the Major Casualty Amount;
|
(d) |
any lien on the Vessel for master’s, officer’s or crew’s wages outstanding in the ordinary course of its trading; and
|
(e) |
any lien on the Vessel for salvage.
|
(a) |
if that date falls between the first (1st) to the twelfth (12th) month
(both inclusive) from the Delivery Date, the higher of (i) two point five per cent. (2.50%) of the Outstanding Charter Hire Principal as at that date and (ii) an amount equal to the aggregate Variable Rent that would have been paid on the
remaining Payment Dates up to, and including, the date falling 12 months after the Delivery Date;
|
(b) |
two per cent. (2.00%) of the Outstanding Charter Hire Principal as at that date, if that date falls between the thirteenth (13th) to the twenty fourth (24th) month (both inclusive) from the Delivery Date;
|
(c) |
one per cent. (1.00%) of the Outstanding Charter Hire Principal as at that date, if that date falls between the twenty fifth (25th) to the thirty sixth (36th) month (both inclusive) from the Delivery Date; and
|
(d) |
zero point five (0.50%) of the Outstanding Charter Hire Principal as at that date, if that date falls between the thirty seventh (37th) to the forty eight (48th) month (both inclusive) from the Delivery Date.
|
(a) |
the applicable Term SOFR as of 11am on the Quotation Day and for a period equal in length to the relevant Interest Period; or
|
(b) |
as otherwise determined pursuant to Clause 44.6 (Unavailability of Term SOFR),
|
(a) |
any expropriation, confiscation, requisition or acquisition of the Vessel whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration,
which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one year without any
right to an extension) unless it is within 30 days redelivered to the full control of the Lessee; and
|
(b) |
any capture, seizure, condemnation, arrest or detention of the Vessel (including any hijacking, piracy or theft) unless it is within 30 days redelivered to the full control of the Lessee.
|
(a) |
listed on, or owned or controlled by a person listed on any Sanctions List;
|
(b) |
located in, incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a Sanctioned Country; or
|
(c) |
otherwise a target of Sanctions.
|
(a) |
the Security Council of the United Nations;
|
(b) |
the United States of America;
|
(c) |
the United Kingdom;
|
(d) |
the European Union;
|
(e) |
any member state of the European Union;
|
(f) |
any country with respect to which any Relevant Party or any Group Member is organised or resident, or has material (financial or otherwise) interests or operations; and
|
(g) |
the governments and official institutions or agencies of any of the institutions, organisations or (as he case may be) countries set out in the foregoing paragraphs, including without limitation the U.S. Office of Foreign Asset Control
(“OFAC”), the U.S. Department of State, and Her Majesty’s Treasury (“HMT”).
|
(a) |
the aggregate of:
|
(i) |
the Fair Market Value of the Vessel; and
|
(ii) |
the Fair Market Value of the Associated Vessel; and
|
(iii) |
the amount of any additional security provided by the Lessee and/or the Additional Lessee in accordance with Clause 59.2(b)(ii) of this Charter and/or in accordance with Clause 59.2(b)(ii) of the Associated Charter;
|
(b) |
the aggregate of:
|
(i) |
the Outstanding Charter Hire Principal; and
|
(ii) |
the Outstanding Charter Hire Principal (as such term is defined in the Associated Charter),
|
(a) |
the General Assignment;
|
(b) |
the Account Security;
|
(c) |
the Share Pledge;
|
(d) |
a Manager’s Undertaking by each Manager;
|
(e) |
any Subordination Deed;
|
(f) |
any Security Documents (as defined in the Associated Charter); and
|
(g) |
any other document designated as such by the Lessor and the Lessee.
|
(a) |
directly or indirectly controlled by such person, or
|
(b) |
of whose dividends or distributions on ordinary voting share capital (or, as the case may be, membership interest) such person is beneficially entitled to receive more than 50 per cent.
|
(a) |
actual, constructive, compromised or arranged total loss; or
|
(b) |
Requisition.
|
(a) |
in the case of an actual total loss, the date it happened or, if such date is not known, the date on which the Vessel was last reported;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss, the earliest of:
|
(i) |
the date notice of abandonment of the Vessel is given to its insurers; or
|
(ii) |
if the insurers do not admit such a claim, the date subsequently determined by a competent court of law to have been the date on which the total loss happened; or
|
(iii) |
the date upon which a binding agreement as to such compromised, agreed or arranged total loss has been entered into by the Vessel’s insurers; 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 Lessor that the event constituting the total loss occurred.
|
(a) |
the 180th day following the relevant Total Loss Date (or such later date as the Lessor may agree); and
|
(b) |
the date on which the Security Trustee and/or the Security Agent or any other Finance Party receives the Insurance Proceeds in respect of such Total Loss.
|
(a) |
each of the Operative Documents;
|
(b) |
any Management Agreement; and
|
(c) |
each Transaction Document (as defined in the Associated Charter).
|
(a) |
a Saturday or a Sunday; and
|
(b) |
a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government
securities.
|
39.2 |
Construction
|
(a) |
Unless a contrary indication appears, any reference in this Charter to:
|
(i) |
the “Lessor”, the “Lessee”, any “Relevant Party”, any “Finance Party”, the “Security Agent”, the “Security Trustee” or any “Party” shall be construed so as to include its successors in title,
permitted assigns and permitted transferees;
|
(ii) |
“assets” includes present and future properties, revenues and rights of every description;
|
(iii) |
“approved” means approved in writing by the Lessor (on such conditions as the Lessor may impose) and “approval” and “approve” shall be construed accordingly;
|
(iv) |
“control” of an entity means:
|
(A) |
the power (whether by way of ownership of shares or membership interests or any other equity instrument, proxy, contract, agency or otherwise) to:
|
(1) |
cast, or control the casting of, more than 50 per cent of the maximum number of votes that might be cast at a general meeting of that entity; or
|
(2) |
appoint or remove all, or the majority, of the directors, members or other equivalent officers of that entity; or
|
(3) |
give directions with respect to the operating and financial policies of that entity with which the directors, members or other equivalent officers of that entity are obliged to comply; and/or
|
(B) |
the holding beneficially of more than 50 per cent of the issued share capital or, as the case may be, membership interest capital of that entity (excluding any part of that issued share capital or, as the case may be, membership interest
capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over share capital or, as the case may be, membership interest capital
shall be disregarded in determining the beneficial ownership of such share capital or, as the case may be, membership interest capital);
|
(v) |
the Lessor’s “cost of funds” is a reference to the average cost (determined either on an actual or a notional basis) which the Lessor would incur if it were to fund, from whatever source(s) it may
reasonably select, an amount equal to the amount of the Outstanding Charter Hire Principal (or any relevant part of it) at any relevant time for a period equal in length to the Interest Period at the relevant time;
|
(vi) |
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 Charter;
|
(vii) |
“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 a person by any of them, either directly or indirectly;
|
(viii) |
an “Operative Document” or any other agreement or instrument is a reference to that Operative Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
(ix) |
“including” shall be construed as “including without limitation” (and cognate expressions shall be construed similarly);
|
(x) |
“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;
|
(xi) |
“month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:
|
(A) |
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that month (if there is one) or on the immediately preceding Business Day (if there is not); and
|
(B) |
if there is no numerically corresponding day in that month, that period shall end on the last Business Day in that month,
|
(xii) |
a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having
separate legal personality);
|
(xiii) |
something being in the “ordinary course of business” of a person or in the “ordinary course of trading” means something that is in the ordinary course of
that person’s current day-to-day operational business (and not merely anything which that person is entitled to do under its constitutional documents);
|
(xiv) |
“law” includes common or customary law and any constitution, decree, judgment, legislation, order, ordinance, regulation, rule, statue, treaty or other legislative measure in any jurisdiction or
any present or future directive, regulation or requirement, or official or judicial interpretation of any of the foregoing, and any rule, treaty, 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;
|
(xv) |
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;
|
(xvi) |
a provision of law is a reference to that provision as amended or re-enacted; and
|
(xvii) |
a time of day is a reference to London time.
|
(b) |
Unless a contrary indication appears, references to Clauses and Schedules are to be construed as references to clauses of, and schedules to, this Charter. Clause and Schedule headings are for ease of reference only.
|
(c) |
Unless a contrary indication appears, a term used in any other Operative Document or in any notice or certificate given under or in connection with any Operative Document has the same meaning in that Operative Document, notice or
certificate as in this Charter.
|
(d) |
A Potential Termination Event is “continuing” if it has not been remedied or waived; a Termination Event is “continuing” if it has not been waived.
|
(e) |
In this Charter, unless a contrary indication appears, words importing the plural include the singular and vice versa, and words importing a gender include every gender.
|
39.3 |
Third party rights
|
40 |
Charter of Vessel
|
41 |
Delivery of Vessel
|
41.1 |
Delivery
|
(a) |
At the request of the Lessee, the Lessor has entered into the Memorandum of Agreement with the Lessee, pursuant to which the Lessor has agreed to purchase the Vessel at the Purchase Price payable upon the terms and conditions of the
Memorandum of Agreement.
|
(b) |
At the same time as the delivery of the Vessel to the Lessor by the Lessee pursuant to the Memorandum of Agreement, the Lessor shall deliver the Vessel to the Lessee and the Lessee shall take delivery of the Vessel from the Lessor under
this Charter.
|
(c) |
On Delivery, the Lessee shall execute and deliver to the Lessor the Acceptance Certificate.
|
41.2 |
Acceptance Certificate
|
(a) |
the Lessee has accepted the Vessel for the purposes of this Charter; and
|
(b) |
the Vessel was delivered to the Lessee in a condition in compliance with this Charter.
|
41.3 |
Lessee’s acknowledgement
|
(a) |
the Lessor shall purchase the Vessel pursuant to the Memorandum of Agreement for the sole purpose of leasing the Vessel to the Lessee pursuant to this Charter;
|
(b) |
the Lessee shall not be entitled to refuse to accept delivery of the Vessel under this Charter once the Lessor acquires title to, and receives possession of, the Vessel pursuant to the Memorandum of Agreement;
|
(c) |
the Lessor’s obligation to pay to the Lessee the Purchase Price under the Memorandum of Agreement shall be subject to the conditions set out in Clause 42 (Conditions Precedent);
|
(d) |
the Lessor shall not be liable for any Losses resulting (directly or indirectly) from any defect or alleged defect in the Vessel or failure or alleged failure of the Vessel to comply with the Memorandum of Agreement; and
|
(e) |
the Lessee shall be responsible for the condition of the Vessel on the Delivery Date.
|
41.4 |
Cancellation of the Memorandum of Agreement
|
42 |
Conditions Precedent
|
42.1 |
Lessor’s conditions precedent
|
(a) |
The obligation of the Lessor to enter into the Memorandum of Agreement and this Charter is subject to receipt by the Lessor of the documents and evidence set out in Part I of Schedule 1 (Conditions
Precedent) on or prior to the date of this Charter.
|
(b) |
The obligation of the Lessor to charter the Vessel to the Lessee under this Charter is subject to:
|
(i) |
receipt by the Lessor of the documents and evidence set out in Part II of Schedule 1 (Conditions Precedent) on or prior to the date of the Payment Notice; and
|
(ii) |
receipt by the Lessor of the documents and evidence set out in Part III of Schedule 1 (Conditions Precedent) on or prior to the Delivery Date.
|
(c) |
Each document provided to the Lessor under this Clause 42 shall be in form and substance satisfactory to the Lessor.
|
(d) |
The conditions specified in this Clause 42 are inserted for the sole benefit of the Lessor and may be waived or deferred in whole or in part and with or without conditions only by the Lessor.
|
42.2 |
Lessor’s further conditions precedent
|
(a) |
the representations and warranties in Clause 51.1 (Lessee representations) hereof and clause 5 of the Memorandum of Agreement shall be true and correct as if each was made with respect to the
facts and circumstances existing immediately prior to the time when the Delivery is to take place;
|
(b) |
no Potential Termination Event or Termination Event shall have occurred and be continuing or would arise by reason of the Delivery taking place;
|
(c) |
no event or circumstance has occurred or exists between the date hereof and the proposed date of Delivery which would have a Material Adverse Effect;
|
(d) |
all consents, if any, of any relevant Governmental Agency necessary for the effective performance or consummation of the transactions contemplated by the Operative Documents to which each Relevant Party is a party shall have been
obtained and be in full effect;
|
(e) |
Delivery shall have occurred on or prior to the Cut-off Date (unless otherwise agreed by the Lessor); and
|
(f) |
all of the documents received by the Lessor as contemplated in Clause 42.1 (Lessor’s conditions precedent) are in full force and effect.
|
42.3 |
Conditions subsequent
|
(a) |
no later than three (3) months after the date of this Charter, a physical inspection report from a surveyor appointed by the Lessor at the cost of the Lessee, demonstrating that the Vessel is in
satisfactory condition and maintains specifications acceptable to the Lessor;
|
(b) |
no later than five (5) Business Days after the date of this Charter, a copy of the certificate being the document listing all the potentially hazardous materials on board the Vessel; and
|
(c) |
no later than ten (10) days after this Charter a complete inventory of the Vessel’s equipment, outfit, spare parts and consumable stores on board the Vessel.
|
43 |
Extent of Lessor’s liability
|
(a) |
the Vessel shall be leased on an “as is, where is” basis;
|
(b) |
the Lessor makes no condition, term, representation or warranty as to title, seaworthiness, condition, design, operation or fitness for use of the Vessel, or as to the eligibility of the Vessel for any particular trade, purpose or
operation, or any other condition, term, representation or warranty with respect to the Vessel; and
|
(c) |
the Lessee waives all its rights and claims in respect of any condition, term, representation or warranty described in paragraph (b) above.
|
44 |
Rent, payments and calculations
|
44.1 |
Fees
|
(a) |
an arrangement fee; and
|
(b) |
a commitment fee,
|
44.2 |
Rent
|
(a) |
The Lessee shall from the Delivery Date until the end of the Charter Period pay the relevant Rent to the Lessor on each Payment Date (which for the avoidance of doubt, includes the applicable Fixed Rent and Variable Rent payable on that
Payment Date).
|
(b) |
The Variable Rent in respect of an Interest Period shall be payable monthly on each Payment Date falling within such Interest Period.
|
(c) |
The Lessor shall notify the Lessee prior to each Payment Date of the amount of Variable Rent payable on the next Payment Date.
|
(d) |
The Lessee shall pay the Balloon Rental on the final Payment Date.
|
(e) |
If the Lessee defaults in payment of (i) the applicable Fixed Rent or the applicable Variable Rent on a Payment Date or (ii) the Balloon Rental, the Lessee shall pay default interest thereon pursuant to Clause 44.11 (Default Interest).
|
(f) |
All payments of the Rent (including, when applicable, the Balloon Rental) shall be deemed earned when paid and shall not be refundable in any circumstances except as expressly provided herein.
|
44.3 |
Payment unconditional
|
(a) |
The Lessee’s obligation to pay Rent and other payments on a “hell and high water” basis in accordance with this Charter and any other amounts payable by the Lessee under the other Operative Documents shall be absolute and unconditional
irrespective of any matter or contingency, including:
|
(i) |
any set-off, counterclaim, recoupment, defence or other right which any party to any of the Operative Documents may have against the other or any other party to the Operative Documents;
|
(ii) |
the occurrence of a Total Loss or any other occurrence including the loss, destruction, confiscation, seizure, damage to the Vessel, or the interruption or cessation in or prohibition of the use of, or any requisition for hire or use of,
possession or enjoyment of the Vessel by the Lessee for any reason whatsoever;
|
(iii) |
any unavailability of the Vessel, including any lack or invalidity of title or any other defect in the title (other than any lack or invalidity of title or any other defect in the title, in each case solely caused by the Lessor’s act or
omission), seaworthiness, condition, design, merchantability, fitness for use or purpose, or lack of Crew, injury of any Crew, or the ineligibility of the Vessel for any particular use or trade, or for registration or documentation under
the laws of any relevant jurisdiction;
|
(iv) |
any failure or delay on the part of any party to any of the Operative Document, whether with or without fault on its part, in performing or complying with any of the terms of the Operative Documents;
|
(v) |
any insolvency, bankruptcy, winding-up, reorganisation, reconstruction, arrangement, readjustment of debt, dissolution or similar proceedings by or against any of the Lessor, any Relevant Party or any other party to any of the Operative
Documents;
|
(vi) |
any other cause which would, but for this Clause 44.3, have the effect of terminating or affecting the obligations of the Lessee under any of the Operative Documents; and
|
(vii) |
any invalidity, unenforceability or lack of due authorisation of, or other defect in, any of the Operative Documents.
|
(b) |
It shall be the intention of the Parties that the obligations of the Lessee under this Clause 44.3 shall survive any frustration of any of the Operative Documents, and that, except as provided for in this Charter, no amount payable or
paid by the Lessee under this Charter to the Lessor shall be repayable to the Lessee.
|
44.4 |
Manner of payment
|
(a) |
in full, without any set-off or counterclaim and, subject as provided in Clause 48.1 (Withholding Taxes), free and clear of any deductions or withholdings; and
|
(b) |
in Dollars, in same day funds before 11:00 a.m. (London time) on the due date for payment, to the Payment Account or such other account as the Lessor may notify the Lessee in writing at least five (5) Business Days before the due date
for payment.
|
44.5 |
Variable Rent periods
|
(a) |
the first Interest Period shall commence on the Delivery Date and end on the Payment Date falling at the end of such Interest Period;
|
(b) |
each subsequent Interest Period will start on the last day of the immediately preceding Interest Period and end on the Payment Date falling at the end of such Interest Period; and
|
(c) |
the final Interest Period for the determination of the Variable Rent shall end on the Expiry Date.
|
44.6 |
Unavailability of Term SOFR
|
(a) |
If no Term SOFR is available for an Interest Period, the applicable Reference Rate shall be the Interpolated Term SOFR for a period equal in length to that Interest Period.
|
(b) |
If no Term SOFR is available for an Interest Period and it is not possible to calculate the Interpolated Term SOFR, that Interest Period shall (if it is longer than the Fallback Interest Period) be shortened
to the applicable Fallback Interest Period and the applicable Reference Rate for that shortened Interest Period shall be determined pursuant to the definition of Reference Rate.
|
(c) |
If an Interest Period is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Term SOFR
is available for that Interest Period and it is not possible to calculate the Interpolated Term SOFR, the applicable Reference Rate shall be the Historic Term SOFR.
|
(d) |
If paragraph (c) above applies but no Historic Term SOFR is available for an Interest Period, the applicable Reference Rate shall be the Interpolated Historic Term SOFR for a period equal in length to that
Interest Period.
|
(e) |
If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Term SOFR, the relevant Interest Period shall, if it has been shortened pursuant to paragraph (b) above, revert to
its previous length and there shall be no Reference Rate for that Interest Period and Clause 44.8 (Cost of funds) shall apply to that Interest Period.
|
44.7 |
Market disruption
|
44.8 |
Cost of funds
|
(a) |
If this Clause 44.8 applies, the Applicable Rate for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i) |
the Margin; and
|
(ii) |
the rate notified to the Lessee by the Lessor as soon as practicable and in any event by close of business on the date falling ten Business Days after the Quotation Day (or, if earlier, on the date falling
ten Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost of funds of the Lessor in respect of the Outstanding Charter Hire
Principal (or any relevant part of it).
|
(b) |
If this Clause 44.8 applies and the Lessor or the Lessee so require, the Lessor and the Lessee shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing an
alternative basis for determining the Applicable Rate.
|
(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of the Lessor and the Lessee, be binding on all Parties.
|
(d) |
If this Clause 44.8 applies pursuant to Clause 44.7 (Market disruption) and:
|
(i) |
the Lessor’s Funding Rate is less than the Market Disruption Rate; or
|
(ii) |
the Lessor does not notify a rate by the time specified in sub-paragraph (ii) of paragraph (a) above,
|
44.9 |
Notification to the Lessee
|
44.10 |
Business Days
|
44.11 |
Default Interest
|
44.12 |
Calculation of the Variable Rent and interest
|
(a) |
Except as otherwise expressly provided in this Charter, all amounts of Variable Rent and any interest, commission or fee accruing under this Charter and any other Operative Document will accrue from day to day and shall be calculated:
|
(i) |
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 Relevant Market differs, in accordance with that market practice); and
|
(ii) |
subject to paragraph (b) below, without rounding.
|
(b) |
The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by a Relevant Party under an Operative Document shall be rounded to two decimal places.
|
44.13 |
Certificates and determinations
|
44.14 |
Changes to Reference Rates
|
(a) |
providing for the use of a Replacement Reference Rate in place of that Published Rate; and
|
(i) |
aligning any provision of any Operative Document to the use of that Replacement Reference Rate;
|
(ii) |
enabling that Replacement Reference Rate to be used for the calculation of interest under this Charter (including, without limitation, any consequential changes required to enable that Replacement Reference
Rate to be used for the purposes of this Charter);
|
(iii) |
implementing market conventions applicable to that Replacement Reference Rate;
|
(iv) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or
|
(v) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate
(and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or
recommendation),
|
(a) |
SOFR; or
|
(b) |
the Term SOFR for any Quoted Tenor.
|
(a) |
the methodology, formula or other means of determining that Published Rate has, in the opinion of the Lessor, materially changed; or
|
(i) |
either
|
(A) |
the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or
|
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or
judicial body which reasonably confirms that the administrator of that Published Rate is insolvent,
|
(ii) |
the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator
to continue to provide that Published Rate;
|
(iii) |
the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued; or
|
(iv) |
the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used; or
|
(c) |
the administrator of that Published Rate (or the administrator of an interest rate which is a constituent element of that Published Rate) determines that that Published Rate should be calculated in accordance
with its reduced submissions or other contingency or fallback policies or arrangements and either:
|
(i) |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Lessor) temporary; or
|
(ii) |
that Published Rate is calculated in accordance with any such policy or arrangement for a period of no less than 15 Business Days; or
|
(d) |
in the opinion of the Lessor, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Charter.
|
(a) |
formally designated, nominated or recommended as the replacement for a Published Rate by:
|
(i) |
the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or
|
(ii) |
any Relevant Nominating Body,
|
(b) |
in the opinion of the Lessor and the Lessee, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Published Rate; or
|
(c) |
in the opinion of the Lessor and the Lessee, an appropriate successor to a Published Rate.
|
45 |
Costs and Expenses
|
(a) |
all reasonable and documented legal and out-of-pocket expenses of the Lessor in connection with the negotiation, preparation and execution of the Operative Documents;
|
(b) |
any variation of any Operative Document or any waiver or consent required under any of them (including any amendment or waiver pursuant to Clause 44.14 (Changes
to Reference Rates));
|
(c) |
any document executed in respect of additional security provided pursuant to Clause 59.2 (Security Coverage Ratio);
|
(d) |
the early termination of the leasing of the Vessel and the sale of the Vessel to the Lessee pursuant to Clause 64 (Purchase Option and Purchase Obligation) or following the occurrence of an Early
Termination Event or a Termination Event;
|
(e) |
investigating the occurrence or alleged occurrence of a Termination Event and the enforcement or preservation of any right conferred upon a Creditor Party by any of the Operative Documents, or in respect of the repossession of the Vessel
in accordance with the Operative Documents (or any of them);
|
(f) |
a breach by a Creditor Party of its obligations under any of the Finance Documents provided that such breach is caused (whether directly or indirectly) by a breach of any of the Operative Documents by a Relevant Party; and
|
(g) |
a Total Loss or event which may result in a Total Loss.
|
46 |
Accounts
|
46.1 |
General undertakings
|
(a) |
open the Operating Account with the Account Bank and, in connection therewith, will from time to time complete all “know your customer” and other returns necessary for such process;
|
(b) |
maintain the Operating Account with the Account Bank; and
|
(c) |
not withdraw or permit withdrawal of any moneys from the Operating Account other than in accordance with the provisions of this Clause 46.
|
46.2 |
Payment of Earnings etc.
|
46.3 |
Currency
|
46.4 |
Operating Account
|
(a) |
Subject to paragraph (b) and (c) below, no withdrawals shall be permitted from the Operating Account without the prior written consent of the Lessor.
|
(b) |
The Lessee shall not be allowed to withdraw amounts standing to the credit of the Operating Account unless the amount standing to the credit of the Operating Account after such withdrawal is at least equal to
the Minimum Liquidity Amount required under paragraph (a) of Clause 53 (Financial covenants).
|
(c) |
If there is no Early Termination Event, Potential Termination Event or Termination Event has occurred and is continuing and subject always to the Lessee being in compliance with this Clause 46.4, Clause 53 (Financial Covenants), Clause 54.13 (Distributions and other payments) and Clause 59.2 (Security Coverage Ratio), the
Lessee may withdraw moneys from the Operating Account for any purpose whatsoever which is permitted (or not prohibited) by the terms of this Charter and the Operative Documents.
|
46.5 |
Other provisions
|
(a) |
The Lessee shall not close the Operating Account or alter, or permit to alter, the terms of the Operating Account from those in force at the time it is designated for the purposes of this Clause 46 or waive any of its rights in relation
to the Operating Account except with the prior written approval of the Lessor.
|
(b) |
The Lessee shall deposit with the Lessor all certificates of deposit, receipts or other instruments or securities relating to the Operating Account, notify the Lessor of any claim or notice relating to the Operating Account from any
other party and provide the Lessor with any other information it may request concerning the Operating Account.
|
47 |
Indemnities
|
47.1 |
Currency indemnity
|
(a) |
If any sum due from any Relevant Party under any Operative Document (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 any Relevant Party; or
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
The Lessee waives any right it may have in any jurisdiction to pay any amount under any relevant Operative Document in a currency or currency unit other than that in which it is expressed to be payable.
|
47.2 |
Financial indemnities
|
(a) |
any default by any Relevant Party in payment of any amount due under this Charter or any other Operative Document;
|
(b) |
Delivery having failed to occur on the Scheduled Delivery Date by reason of the operation of any one or more of the provisions of this Charter if the Delivery Notice (as defined in the Memorandum of Agreement) has been served under the
Memorandum of Agreement;
|
(c) |
any costs, charges or expenses which any Relevant Party has agreed to pay under any of the Operative Documents and which are claimed or assessed against or paid by an Indemnitee; and
|
(d) |
any voluntary termination or any Purchase Option not being exercised in accordance with the notice given by the Lessee.
|
47.3 |
Operational indemnity
|
(a) |
the condition, testing, design, manufacture, delivery, redelivery, non-delivery, purchase, export, import, registration, ownership, classification, leasing, sub-leasing, management, possession, manning, provision of bunkers and
lubricating oils, dry-docking, surveys, control, use, operation, maintenance, repair, replacement, refurbishment, modification, overhaul, insurance, sale or other disposal, return or storage of, or loss of or damage to, the Vessel, or
otherwise in connection with the Vessel, or relating to loss or destruction of, or damage to, any property, or death or injury of, or other similar loss suffered by, any person relating to any of these matters;
|
(b) |
claims which may be made on the ground that any design, article or material in the Vessel or the operation or use of such design, article or material constitutes an infringement of patent, trademark, copyright or other intellectual
property right or any other right;
|
(c) |
preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution, impounding, forfeiture or detention of the Vessel, or in securing the release of the Vessel unless such arrest, confiscation, seizure, taking in
execution, impounding, forfeiture or detention is caused solely by the Lessor’s act or omission;
|
(d) |
in addition to what is otherwise provided in Clause 24 (Wreck Removal), the Vessel becoming a wreck or obstruction to navigation, including the removal or destruction of the wreck or obstruction
under statutory or other powers;
|
(e) |
any reflagging, deletion and/or registration of the Vessel by the Lessor which may be required following the occurrence of a Termination Event;
|
(f) |
any Environmental Claim or any breach of an Environmental Law or the terms and conditions of an Environmental Authorisation; or
|
(g) |
the Lessee contesting any claim pursuant to paragraph (c) of Clause 47.4 (Conduct of claims).
|
47.4 |
Conduct of claims
|
(a) |
The Lessor shall request each Indemnitee to notify the Lessee as soon as reasonably practicable after a written claim is made against that Indemnitee with respect to any matter for which the Lessee is responsible under this Clause 47.
|
(b) |
Any notification given under paragraph (a) above shall give such details as the relevant Indemnitee then has regarding the claim and any Loss.
|
(c) |
The Lessee may (with the Lessor’s prior written consent, such consent not to be unreasonably withheld), in consultation with the Lessor and the relevant Indemnitee, assume and conduct promptly and diligently the defence of any claim of
the Lessor giving rise to an obligation on the Lessee to indemnify under this Charter (a Lessor Claim), provided that:
|
(i) |
no Potential Termination Event or Termination Event has occurred and is continuing;
|
(ii) |
the contest does not involve any risk of criminal liability to the Lessor or any material risk of the sale, forfeiture or loss of the Vessel;
|
(iii) |
independent legal counsel reasonably acceptable to the Lessor is of the opinion, confirmed in writing to the Lessor, that a reasonable basis exists for contesting the relevant Lessor Claim;
|
(iv) |
the commercial position and business reputation of the Lessor or the relevant Indemnitee will not be materially or adversely affected by contesting the relevant Lessor Claim; and
|
(v) |
the Lessee will be responsible for all Losses suffered by any Indemnitee as a consequence of the Lessee contesting the relevant Lessor Claim.
|
(d) |
The Lessor and any other relevant Indemnitee will not, by reason of the Lessee contesting a claim in accordance with paragraph (c) above, be prevented from settling or paying any claim if it is required to do so by applicable law.
|
(e) |
The Lessee and its insurers shall have the right, at the Lessee’s or its insurers’ expense, to investigate any claim for which indemnification is sought pursuant to this Charter. The Lessor shall co-operate with the Lessee and/or its
insurers with respect to such investigation.
|
47.5 |
Continuation of indemnities
|
(a) |
the termination of the leasing of the Vessel to the Lessee under this Charter; or
|
(b) |
the expiration of the Charter Period by effluxion of time or otherwise.
|
47.6 |
Indemnity payments
|
(a) |
Any payment becoming due by the Lessee to any Indemnitee under this Charter shall be paid:
|
(i) |
within five (5) Business Days of demand made by such Indemnitee; and
|
(ii) |
together with interest at the Default Rate from the date of such demand to the date of reimbursement by the Lessee to such Indemnitee (both before and after judgment).
|
(b) |
For the avoidance of doubt, it shall not be a condition to the obligation of the Lessee to make a payment under this Charter in respect of any Loss incurred by an Indemnitee to any third party that the relevant Indemnitee has paid any
amount to the third party, but only that an amount is payable by such Indemnitee.
|
(c) |
With respect to the giving of the notification under paragraph (a) of Clause 47.4 (Conduct of claims), each Indemnitee agrees that:
|
(i) |
such notification shall not limit such Indemnitee’s right to make further or additional demands on the Lessee in respect of the matter so notified, or in respect of any other matter which is, or may become, the subject of a claim by such
Indemnitee on the Lessee under this Charter; and
|
(ii) |
the failure or delay by any Indemnitee to give such notification within a reasonable period of time shall not affect or limit the rights of such Indemnitee under this Charter, or the exercise of such rights in relation to the matter in
question, or to any other matter which is, or may become, the subject of a claim by such Indemnitee on the Lessee under this Charter.
|
48 |
Taxes
|
48.1 |
Withholding Taxes
|
(a) |
the Lessee shall promptly notify the Lessor in writing after the Lessee becomes aware of such requirement;
|
(b) |
the Lessee shall pay, or shall procure the payment of, the full amount of such Tax Deduction to the appropriate entity within the time period for payment permitted by law; and
|
(c) |
the sum due from any Relevant Party in respect of such payment under an Operative Document which is subject to such Tax Deduction shall be increased to the extent necessary to ensure that, after the making of such Tax Deduction, the
Lessor or any other relevant Creditor Party receives and retains (free from any liability in respect of any such Tax Deduction) on the due date for such payment, a sum equal to the sum which the Lessor or the relevant Creditor Party would
have received and so retained had no such Tax Deduction been made or required to be made from such payment. The Lessee shall promptly deliver to the Lessor appropriate receipts evidencing any Tax Deduction so made.
|
48.2 |
Tax indemnity
|
(a) |
the purchase, title, ownership, acquisition, acceptance, rejection, delivery, non-delivery, possession, operation, use, condition, maintenance, repair, sale, remarketing, return, redelivery, storage, manufacture, charter, sub-charter,
leasing, modification, supply, replacement, importation, transfer of title, repossession, exportation or other application or disposition of, or the imposition of any Lien on, the Vessel or any interest in the Vessel; or
|
(b) |
otherwise arising with respect to the Vessel or any Operative Document, any Finance Document or the transactions contemplated by, or any amounts paid or payable under or in respect of, this Charter, the other Operative Documents and the
Finance Documents.
|
48.3 |
Grossing-up of indemnity payments
|
(a) |
If any sum payable to any Indemnitee or Tax Indemnitee by the Lessee under this Charter by way of indemnity proves to be insufficient, by reason of any Taxation imposed on such sum, for the Lessor to discharge the corresponding liability
to a third party, or to reimburse such Indemnitee or Tax Indemnitee for the cost incurred by it in discharging such corresponding liability, the Lessee shall, upon receipt of evidence showing such insufficiency, pay to the relevant
Indemnitee or Tax Indemnitee such additional sum as (after taking into account such Taxation suffered by the Lessor) shall be required to make up the relevant deficit.
|
(b) |
If and to the extent that any sum (the “indemnity sum”) constituting (directly or indirectly) an indemnity to an Indemnitee or Tax Indemnitee, but paid by the Lessee to any person other than an
Indemnitee or Tax Indemnitee, shall be treated as taxable in the hands of such Indemnitee or Tax Indemnitee, the Lessee shall pay to the Lessor such sum (the “compensating sum”) as (after taking into
account any Taxation suffered by the Lessor on the compensating sum) shall reimburse the Indemnitee or Tax Indemnitee for any Taxation suffered by it in respect of the indemnity sum.
|
48.4 |
Stamp taxes
|
(a) |
Each Relevant Party shall:
|
(i) |
pay all stamp, documentary, registration or other similar Taxes imposed on or in connection with any of the Operative Documents to which it is a party; and
|
(ii) |
provide the Lessor and if requested by the Lessor the Security Trustee, with receipts in respect of such payments, unless such receipts shall not be available, in which case such Relevant Party shall provide the Lessor and, if
applicable, the Security Trustee with satisfactory evidence of such payments.
|
(b) |
Each Relevant Party shall indemnify the Lessor and the Security Trustee on an After Tax Basis, against all Losses arising by reason of any delay or omission by the Relevant Party to pay such duties or Taxes.
|
49 |
Illegality
|
49.1 |
Consequences of illegality
|
(a) |
If, in any applicable jurisdiction, it becomes unlawful for the Lessor or the Security Trustee or any Relevant Party to perform any of its obligations or to exercise any of its rights under any of the Operative Documents or any of the
Finance Documents to which it is a party, the Lessor shall be entitled, by giving written notice to the Lessee:
|
(i) |
to cancel the Memorandum of Agreement and to cancel this Charter, if any such event occurs prior to the Delivery Date; or
|
(ii) |
to terminate this Charter if such event occurs after the Delivery Date, in each case, immediately or, if later, upon the date upon which the relevant illegality will become effective.
|
(b) |
If, in any applicable jurisdiction, it becomes unlawful for a Finance Party to perform any of its obligations or to exercise any of its rights under any of the Finance Documents to which it is a party, the Lessor will promptly notify the
Lessee of such event.
|
49.2 |
Termination
|
(a) |
On the date of the cancellation referred to in Clause 49.1(a)(i), the Lessee shall pay to the Lessor:
|
(i) |
any Remittance Interest accrued on the Purchase Price;
|
(ii) |
any relevant Break Costs;
|
(iii) |
any fee (other than a Prepayment Fee) and other amount then due and payable but unpaid by any Relevant Party to the Lessor and/or the Security Trustee under any of the Operative Documents;
|
(iv) |
any cost incurred by the Lessor and/or the Security Trustee to the Finance Parties under the Finance Documents as a result of the occurrence of the cancellation of the Memorandum of Agreement and/or this Charter; and
|
(v) |
any out of pocket costs (including legal costs) incurred by the Lessor and/or the Security Trustee in connection with the cancellation of the Memorandum of Agreement and/or this Charter.
|
(b) |
On the date of the termination referred to in Clause 49.1(a)(ii), the Lessee shall pay to the Lessor:
|
(i) |
any Rent (including, if applicable, the Balloon Rental) due or accrued but unpaid on such date;
|
(ii) |
the Outstanding Charter Hire Principal on such date;
|
(iii) |
any interest accrued on any unpaid and overdue Rent (including, if applicable. the Balloon Rental) or the Outstanding Charter Hire Principal at the Default Rate;
|
(iv) |
any relevant Break Costs;
|
(v) |
any fee (other than a Prepayment Fee) and other amount then due and payable but unpaid by any Relevant Party to the Lessor and/or the Security Trustee under any of the Operative Documents;
|
(vi) |
any cost incurred by the Lessor and/or the Security Trustee to the Finance Parties under the Finance Documents as a result of the termination of this Charter; and
|
(vii) |
any out of pocket costs (including legal costs) incurred by the Lessor and/or the Security Trustee in connection with the termination of this Charter.
|
49.3 |
Release and Transfer
|
(a) |
procure the release of all Liens created by the Lessor on the Vessel and the other security created pursuant to the Operative Documents in relation to the Vessel and this Charter (and if they relate to both the Vessel and the Associated
Vessel, and/or to both this Charter and the Associated Charter, only insofar as they relate to the Vessel and this Charter); and
|
(b) |
transfer title to the Vessel to the Lessee or its nominee pursuant to the terms set out in Clause 67 (Transfer of title) if Delivery of the Vessel under the Memorandum of Agreement has already
occurred.
|
50 |
Increased Costs
|
50.1 |
Increased Costs
|
(a) |
Subject to Clause 50.2 (Increased Costs exclusions), the Lessee shall promptly pay to the relevant Indemnitee the amount of any Increased Costs incurred by such Indemnitee as a result of:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the date of this Charter; or
|
(ii) |
compliance with any law or regulation made after the date of this Charter; or
|
(iii) |
the implementation or application of, or compliance with, Basel III, Reformed Basel III, CRR or CRR II or any law or regulation that implements or applies Basel III, Reformed Basel III, CRR or CRR II.
|
(b) |
In this Charter:
|
(i) |
the agreements on capital requirements, 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;
|
(ii) |
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
|
(iii) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”,
|
(i) |
a reduction in the rate of return from the transactions contemplated by the Operative Documents or on an Indemnitee’s overall capital (including as a result of any reduction in the rate of return on capital brought about by more capital
being required to be allocated by such Indemnitee);
|
(ii) |
an additional or increased cost; or
|
(iii) |
a reduction of any amount due and payable under any Operative Document,
|
50.2 |
Increased Costs exclusions
|
(a) |
attributable to a Tax Deduction to be made by the Lessee or any other Relevant Party;
|
(b) |
compensated for by Clause 48.2 (Tax indemnity) or 48.3 (Gross-up of indemnity payments) (or would have been compensated for under Clause 48.2 (Tax indemnity) but was not so compensated solely because the exclusions to Clause 48.2 (Tax indemnity) applied); or
|
(c) |
attributable to the wilful breach by the relevant Indemnitee of any law or regulation.
|
50.3 |
Payment of Increased Costs, indemnity sum or voluntary termination
|
(a) |
If an Indemnitee or a Tax Indemnitee other than the Lessor wishes to make a claim pursuant to paragraph (c) of Clause 48.1 (Withholding Taxes), Clause 48.2 (Tax
Indemnity) or Clause 50.1 (Increased Costs), it shall notify the Lessor of the event giving rise to the claim. The Lessor shall then promptly notify the Lessee.
|
(b) |
Upon receipt of the Lessor’s notification, the Lessee shall notify the Lessor of its intention to either:
|
(i) |
pay by means of an adjustment to the Rent, the amount which the Lessor notifies the Lessee that the relevant Indemnitee or Tax Indemnitee has determined is necessary to compensate it for the Increased Cost or indemnity sum;
|
(ii) |
if any such event occurs prior to the Delivery, to cancel the Memorandum of Agreement and this Charter; or
|
(iii) |
if any such event occurs after the Delivery, to terminate the leasing of the Vessel,
|
(c) |
If the Lessee elects to voluntarily terminate the Memorandum of Agreement, the Lessor’s obligations under the Memorandum of Agreement and this Charter shall cease either immediately or on the future specified date which is prior to the
latest date permitted by such law or regulation.
|
(d) |
If the Lessee elects to voluntarily terminate this Charter, the Charter Period shall be terminated either immediately or on the future specified date which is prior to the latest date permitted by such law or regulation.
|
(e) |
On the date of the termination referred to in paragraph (c) above, the Lessee shall pay to the Lessor any amount then due and payable but unpaid by the Lessee to the Lessor or any other Indemnitee under any of the Operative Documents or
by the Lessee to the Lessor under the Memorandum of Agreement.
|
(f) |
On the date of the termination referred to in paragraph (d) above, the Lessee shall pay to the Lessor:
|
(i) |
any Rent (including, if applicable, the Balloon Rental) due or accrued but unpaid on such date;
|
(ii) |
the Outstanding Charter Hire Principal on such date;
|
(iii) |
any interest accrued on any unpaid and overdue Rent (including, if applicable, the Balloon Rental) or the Outstanding Charter Hire Principal at the Default Rate;
|
(iv) |
the relevant Prepayment Fee;
|
(v) |
any cost incurred by the Lessor or the Security Trustee or any other Indemnitee to the Finance Parties under the Finance Documents as a result of the termination of this Charter;
|
(vi) |
any other amount then due and payable but unpaid by the Lessee to the Lessor or the Security Trustee or any other Indemnitee under any of the Operative Documents; and
|
(vii) |
any relevant Break Costs.
|
(g) |
Upon receipt by the Lessor of the sums set out in paragraph (e) or (f) above, and subject to no Termination Event or Potential Termination Event being outstanding and/or having occurred and subject to the Security Coverage Ratio
complying with the Asset Coverage Threshold (as each such term is defined in the Associated Charter) applicable at the time pursuant to Clause 59.2 (Security Coverage Ratio) of the Associated Charter
(including in each case on, before or after the release and transfer referred to below), the Lessor shall, as soon as practically possible:
|
(i) |
procure the release of all Liens created by the Lessor on the Vessel and the other security created pursuant to the Operative Documents in relation to the Vessel and this Charter (and if they relate to both the Vessel and the Associated
Vessel, and/or to both this Charter and the Associated Charter, only insofar as they relate to the Vessel and this Charter); and
|
(ii) |
transfer title to the Vessel to the Lessee or its nominee pursuant to the terms set out in Clause 67 (Transfer of title) if Delivery of the Vessel under the Memorandum of Agreement has already
occurred.
|
50.4 |
FATCA Information
|
(a) |
Subject to Clause 50.4(c), each Party shall, within ten (10) Business Days of a reasonable request by the other 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 Clause 50.4(a)(i) 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) |
Clause 50.4(a) shall not oblige the Lessor to do anything, which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraphs (a) or (b) above (including, for the avoidance of doubt, where Clause
50.4(c) applies), then such Party shall be treated for the purposes of the Operative Documents (and payments under them) as if it is not a FATCA Except Party until such time as the Party in question provided the requested confirmation,
forms, documentation or other information.
|
51 |
Representations
|
51.1 |
Lessee representations
|
(a) |
Status
|
(i) |
Each Relevant Party is a limited liability company or, as the case may be, a corporation, duly incorporated, and validly existing and, where applicable, in good standing under the laws of its jurisdiction of incorporation.
|
(ii) |
Each Relevant Party has the power and authority to own its assets and carry on its business as it is now being conducted.
|
(b) |
Binding obligations
|
(c) |
Non-conflict with other obligations
|
(i) |
any law or regulation applicable to it;
|
(ii) |
its constitutional documents; or
|
(iii) |
any agreement or instrument binding upon it or any of its assets,
|
(d) |
Power and authority
|
(i) |
Each Relevant Party has the power to enter into, perform and deliver and comply with its obligations under, and has taken all necessary action to authorise its entry into, performance and delivery of, and compliance with, the Transaction
Documents to which it is a party and the transactions contemplated by those documents and to create the Liens expressed to be created by the Security Documents to which it is or will be a party.
|
(ii) |
No limitation on any Relevant Party’s powers to borrow, create security or give guarantees will be exceeded as a result of any transaction under, or the entry into of, any Transaction Document to which such Relevant Party is, or is to
be, a party.
|
(e) |
Validity and admissibility in evidence
|
(i) |
to enable each Relevant Party lawfully to enter into, exercise its rights and comply with its obligations in, the Transaction Documents to which it is a party;
|
(ii) |
to make the Transaction Documents to which each Relevant Party is a party admissible in evidence in its jurisdiction of incorporation;
|
(iii) |
for each Relevant Party to carry on its business; and
|
(iv) |
to enable each Relevant Party to create the Liens to be created by it under any Security Document to which it is a party and to ensure that such Lien has the priority and ranking it is expressed to have,
|
(f) |
Governing law and enforcement
|
(i) |
The choice of English law as the governing law of the Transaction Documents (other than the Account Security) to which a Relevant Party is a party, and the choice of the governing law of the Account Security will be recognised and
enforced in its jurisdiction of incorporation.
|
(ii) |
Any judgment or arbitration award obtained in England in relation to an Transaction Document to which a Relevant Party is a party will be recognised and enforced in its jurisdiction of incorporation.
|
(g) |
Place of business
|
(i) |
None of the Relevant Parties has established a place of business in England.
|
(ii) |
The Lessee’s centre of main interest (as that term is used in Article 3(1) of the Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the Regulation)) is situated in its
jurisdiction of incorporation and it has no “establishment” (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
|
(h) |
No misleading information
|
(i) |
All information provided by any Relevant Party for the purposes of any Operative Document was true, complete 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.
|
(ii) |
Any financial projections provided by any Relevant Party or on its behalf and delivered to the Lessor in connection with this Charter have been prepared on the basis of recent historical information and on the basis of reasonable
assumptions.
|
(iii) |
Nothing has occurred or been omitted from the information so provided and no information has been given by any Relevant Party or withheld that results in any such information provided by such Relevant Party or on its behalf being untrue
or misleading in any material respect.
|
(i) |
Financial statements
|
(i) |
The Group’s financial statements most recently supplied to the Lessor were prepared in accordance with GAAP consistently applied save to the extent expressly disclosed in such financial statements.
|
(ii) |
The Group’s financial statements most recently supplied to the Lessor give a true and fair view and represent its financial condition and operations as at the end of the relevant financial year save to the extent expressly disclosed in
such financial statements.
|
(iii) |
There has been no material adverse change in the Group’s business or financial condition since the date of the Original Financial Statements.
|
(j) |
Pari passu ranking
|
(i) |
Each Security Document to which each Relevant Party is a party creates (or, once entered into, will create) in favour of the Security Trustee the Security which it is expressed to create with the ranking and priority it is expressed to
have.
|
(ii) |
Without limiting paragraph (i) above, each Relevant Party’s payment obligations under each Operative Document 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.
|
(k) |
Insolvency
|
(l) |
Deduction of Tax
|
(m) |
No filing or stamp taxes
|
(n) |
No Termination Event
|
(i) |
No Termination Event and no Potential Termination Event is continuing or might reasonably be expected to result from the entry into or performance of, or the transactions contemplated by, the Transaction Documents to which each Relevant
Party is a party.
|
(ii) |
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject which would have a Material Adverse Effect.
|
(o) |
No proceedings pending or threatened
|
(p) |
Authorised signatures
|
(q) |
No immunity
|
(r) |
Environmental Authorisations
|
(s) |
Environmental provisions
|
(i) |
All applicable Environmental Laws and Environmental Authorisations relating to the Vessel and her operation and management have been complied with.
|
(ii) |
No Environmental Claim has been made or threatened against the Lessee or any Manager in connection with the Vessel.
|
(iii) |
No Environmental Incident has occurred.
|
(t) |
Liens
|
(u) |
Vessel condition
|
(v) |
Tax compliance
|
(w) |
Anti-corruption law and anti-bribery law
|
(x) |
Sanctions
|
(i) |
No Relevant Party, nor any of their Subsidiaries, directors or officers, is a Restricted Person or is owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Restricted Person and none of such
persons owns or controls a Restricted Person.
|
(ii) |
Notwithstanding any other provision of this Charter or any other Operative Document to the contrary, neither the Lessor nor any Relevant Party is obliged to do or omit to do anything if it would be likely to constitute a breach of any
Sanctions or any laws and regulations relating to anti-money laundering, counter-terrorism financing or economic and trade sanctions applicable to it.
|
(iii) |
Notwithstanding any other provision of this Charter or any other Operative Document to the contrary but subject to any statutory obligations and confidentiality undertakings by which the Lessor, any Relevant Party may be bound, each of
them agrees to provide any information and documents that are within its possession, custody or control reasonably required by any other Party in order for that other Party to comply with any Sanctions, any Anti-Money Laundering Laws or any
other laws and regulations relating to anti-money laundering, counter-terrorism financing or economic and trade sanctions applicable to it.
|
(iv) |
If the Lessor or any Relevant Party is required to disclose information obtained in connection with this Charter or any other Operative Document to any person in order to comply with any Sanctions or any laws and regulations relating to
anti-money laundering, counter-terrorism financing or economic and trade sanctions applicable to it, each of them agrees that, if permitted to do so by law, it will immediately notify the other Party of the requirement to disclose such
information and that to the extent permitted by law, such disclosure will not breach any duty of confidentiality owed by any of them to any of the others.
|
(y) |
Disclosure of material facts
|
(z) |
Shares
|
(i) |
All of the shares of the Lessee are fully paid and not subject to any option to purchase or similar rights and are in registered format.
|
(ii) |
The constitutional documents of the Lessee do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Security Documents.
|
(iii) |
There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share or loan capital of the Lessee (including any option or right of pre-emption or
conversion).
|
(aa) |
Ownership of Lessee
|
(bb) |
No Change of Control
|
(cc) |
No breach of any Charter Document
|
(dd) |
Vessel’s employment
|
(ee) |
Address commission
|
(ff) |
Copies of documents
|
51.2 |
Repetition
|
52 |
General Undertakings
|
52.1 |
Lessee undertakings
|
(a) |
Status
|
(b) |
Authorisations
|
(i) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(ii) |
supply certified copies to the Lessor of,
|
(c) |
Compliance with laws
|
(d) |
Performance of obligations
|
(e) |
Pari passu
|
(f) |
Notification of default
|
(i) |
the occurrence of any Potential Termination Event or any Termination Event; or
|
(ii) |
any matter which indicates that any Potential Termination Event or any Termination Event may have occurred,
|
(g) |
Notification of litigation
|
(h) |
Provision of information
|
(i) |
Merger
|
(j) |
Change of business
|
(i) |
The Lessee shall not substantially change the general nature of its business from that carried on at the date of this Charter without the prior written consent of the Lessor.
|
(ii) |
The Guarantor shall ensure that no substantial change is made to the general nature of its business from that carried on at the date of this Charter without the prior written consent of the Lessor.
|
(k) |
Cancellation, termination and amendment of documents
|
(l) |
Taxes
|
(i) |
file or cause to be filed all tax returns required to be filed in all jurisdictions in which it is situated or carries on business or otherwise is subject to Taxation;
|
(ii) |
pay all Taxes shown to be due and payable on such returns or any assessments made against it, except to the extent these are contested in good faith and by appropriate means where such payment may be lawfully withheld and for which
adequate reserves have been established by it taking into account the amount of Taxes payable;
|
(iii) |
except as approved by the Lessor, each Relevant Party shall maintain its residence for Tax purposes in the jurisdiction in which it is currently resident for Tax purposes and ensure that it is not resident for Tax purposes in any other
jurisdiction; and
|
(iv) |
each Relevant Party shall promptly upon becoming aware of the same notify the Lessor of the imposition or the proposed levy of any taxes (by withholding or otherwise) on any payment to be made by any Relevant Party under any Operative
Document to which it is a party.
|
(m) |
Sanctions, anti-corruption law and anti-bribery law
|
(i) |
The Lessee undertakes that it shall, and it shall procure that each Relevant Party and each Group Member will, comply with all Sanctions.
|
(ii) |
The Lessee undertakes that it shall, and it will procure that no Relevant Party (but, in respect of a Third Party Manager, on a best efforts basis) nor any Group Member:
|
(A) |
is a Restricted Person;
|
(B) |
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Restricted Person;
|
(C) |
owns or controls a Restricted Person; or
|
(D) |
has a Restricted Person serving as a director, officer or, to the best of its knowledge, employee.
|
(iii) |
Each Relevant Party and each Group Member has instituted and maintains policies and/or internal procedures designed to prevent violation of Sanctions.
|
(iv) |
The Vessel is not listed on a Sanctions List or otherwise the target of Sanctions.
|
(v) |
No proceeds of the Purchase Price shall be made available, directly or indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by
Sanctions.
|
(vi) |
No Relevant Party shall become a Restricted Person or act on behalf of, or as an agent of, a Restricted Person. No Relevant Party shall and shall procure that no other Group Member and or Relevant Party shall, become a Restricted Person
or act on behalf of, or as an agent of, a Restricted Person.
|
(vii) |
The Lessee shall ensure, and it shall procure that each Relevant Party (but, in respect of a Third Party Manager, on a best efforts basis) and each Group Member shall ensure, that no proceeds from any activity or dealing with a
Restricted Person are credited to any bank account of the Lessor or any Affiliate of the Lessor.
|
(viii) |
The Lessee shall, and it shall procure that each Relevant Party (but, in respect of a Third Party Manager, on a best efforts basis) and each Group Member will, promptly upon becoming aware of
them, supply to the Lessor details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.
|
(ix) |
The Lessee shall not, and it shall procure that no Relevant Party (but, in respect of a Third Party Manager, on a best efforts basis) and no Group Member will, use any revenue or benefit derived
from any activity or dealing with a Restricted Person in discharging any obligation due or owing to the Lessor.
|
(x) |
The Lessee shall not, and it shall procure that no Relevant Party (but, in respect of a Third Party Manager, on a best efforts basis) and no other Group Member shall, directly or indirectly,
use, lend, contribute or otherwise make available any proceeds of the Purchase Price or other transaction contemplated by this Charter or the Memorandum of Agreement for the purpose of financing any trade, business or other activities with
any Restricted Person.
|
(xi) |
The Lessee shall, and it shall procure that each other Relevant Party (including procuring or as the case may be, using all reasonable endeavours to procure their respective officers and/or directors, of the relevant entity to do the
same) shall (A) comply with all Anti-Money Laundering Laws; (B) maintain systems, controls, policies and procedures designed to promote and achieve ongoing compliance with Anti-Money Laundering Laws; and (C) in respect of the Lessee, not
use, or permit or authorize any person not to directly or indirectly use, the Purchase Price for any purpose that would breach any Anti-Money Laundering Laws.
|
(xii) |
In respect of the Lessee, not lend, invest, contribute or otherwise make available the Purchase Price to or for any other person in a manner which would result in a violation of Anti-Money Laundering Laws.
|
(xiii) |
The Lessee shall, and shall procure that each other Relevant Party shall promptly notify the Lessor of any non-compliance, by itself or any such Relevant Party or their respective officers, directors, with all laws and regulations
relating to Anti-Money Laundering Laws as well as provide all information (once available) in relation to its business and operations which may be relevant for the purposes of ascertaining whether any of the aforesaid parties are in
compliance with such laws.
|
(n) |
Financial statements
|
(i) |
as soon as the same become available, but in any event within 180 days after the end of each financial year of the Guarantor, the audited consolidated financial statements of the Group for that financial year (the “Annual Financial Statements”); and
|
(ii) |
as soon as the same become available, but in any event within 90 days after the end of the first half of each financial year of the Guarantor, the unaudited consolidated financial statements of the Group for that financial half year (the
“Semi-Annual Financial Statements”).
|
(o) |
Requirements as to financial statements
|
(i) |
The Lessee shall procure that each set of Annual Financial Statements and Semi-Annual Financial Statements includes a profit and loss account, a balance sheet and a cashflow statement and that, in addition, each set of Annual Financial
Statements shall be audited by the Auditors.
|
(ii) |
Each set of financial statements delivered pursuant to paragraph (n) of this Clause 52.1 shall:
|
(A) |
be prepared in accordance with GAAP;
|
(B) |
fairly present, and be certified by a director of the relevant company as fairly presenting, its financial condition and operations as at the date as at which those financial statements were drawn up and, in the case of the Annual
Financial Statements, shall be accompanied by any letter addressed to the management of the relevant company by the Auditors and accompanying those Annual Financial Statements; and
|
(C) |
in the case of Annual Financial Statements, not be the subject of any qualification in the Auditors’ opinion.
|
(iii) |
The Lessee shall procure that each set of financial statements delivered pursuant to paragraph (n) of this Clause 52.1 shall be prepared using GAAP, accounting practices and financial reference periods consistent with those applied in
the preparation of the Original Financial Statements, unless, in relation to any set of financial statements, the Lessee notifies the Lessor that there has been a change in GAAP or the accounting practices and the Auditors deliver to the
Lessor:
|
(A) |
a description of any change necessary for those financial statements to reflect the GAAP or accounting practices and reference periods upon which corresponding Original Financial Statements were prepared; and
|
(B) |
sufficient information, in form and substance as may be reasonably required by the Lessor, to enable the Lessor to determine whether Clause 53 (Financial covenants) has been complied with and to
make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
|
(iv) |
Any reference in this Charter to any 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.
|
(p) |
Change of accounting period
|
(q) |
Financing
|
(i) |
Each of the Lessor and the Lessee acknowledges that (i) the Security Documents will be on-assigned to the Security Agent or any other Finance Party, (ii) the Lessor will assign its interest in the Vessel’s insurances to the Security
Agent or any other Finance Party and (iii) the Vessel is to be mortgaged to the Security Agent or any other Finance Party at the Lessor’s expense, each as security for the Lessor’s obligations under the Finance Documents and the Lessee
hereby consents to any such Finance Documents and any such mortgage and assignment. The Lessee agrees and undertakes to procure that each of the Relevant Parties shall cooperate with the Lessor and the Finance Parties to give effect to the
security interests contemplated in the above documents.
|
(ii) |
The Lessee further acknowledges that the Operative Documents will be subject to review by the Security Agent or any other Finance Party and their legal advisors and agrees to co-operate with the Security Agent or any other Finance Party
and such legal advisors in such review. If on the request of the Security Agent or any other Finance Party the Lessor gives notice to the Lessee to change the terms and requirements of any Operative Document, that Operative Document shall
be modified in the manner to be agreed between the Relevant Parties within fifteen (15) Business Days of the Lessor’s relevant notice, provided however that, in the event the Relevant Parties fail to reach agreement within the said period,
that Operative Document shall be modified in the manner so notified by the Lessor to the Lessee and/or any other Relevant Party at any time after such failure.
|
(r) |
Information: miscellaneous
|
(i) |
after they are dispatched, copies of all material documents dispatched by the Lessee or the Guarantor to its shareholders generally (or any class of them) or its creditors generally (or any class of them);
|
(ii) |
such information regarding the employment status and operating status of the Vessel as the Lessor may reasonably request;
|
(iii) |
such further information regarding the financial condition, business and operations of the Lessee and/or the financial condition of the Guarantor as the Lessor may reasonably request (including
but not limited to any information relating to compliance with environmental, social and governance (ESG) criteria);
|
(iv) |
such further information and records relating to the Vessel (including but not limited to any information relating to the energy efficiency of the Vessel) and the Lessee as the Lessor may reasonably request;
|
(v) |
any notice being received from any competent authority amending, terminating or suspending or threatening to amend, terminate or suspend any Authorisation where such action (or implementing the result thereof) constitutes a Material
Adverse Effect;
|
(vi) |
upon becoming aware of them, details of any circumstances which may lead to:
|
(A) |
any Authorisation not being obtained or effected or not remaining in full force and effect (other than in accordance with its terms); or
|
(B) |
any Authorisation not being obtained, renewed or effected when required,
|
(s) |
Environmental
|
(i) |
any material Environmental Claim or any Environmental Incident;
|
(ii) |
any material inspections, investigations, studies, audits, tests, reviews and other analysis carried out by it or on its behalf (but excluding any routine inspection) in relation to any environmental matters; and
|
(iii) |
details of any material non-compliance by it with any applicable Environmental Law or applicable Environmental Authorisation or any suspension, revocation or modification of any Environmental Authorisation and shall set out the action it
intends to take with respect to those matters,
|
(t) |
“Know your customer” checks
|
53 |
Financial covenants
|
(a) |
The Lessee shall ensure and procure that, at all times throughout the Charter Period, the Operating Account has a credit balance of no less than $350,000 (the “Minimum Liquidity Amount”) (for the
avoidance of doubt, not taking into account any amount of Rent paid by the Lessee on any Payment Date).
|
(b) |
In the event that the Guarantor or any other Group Member agrees to, or grants, or agrees to grant, any financial covenants or restriction to the payment or distribution of dividends, for the benefit
of, or in favour of, any lender or creditor of any indebtedness of any Group Member (the more favourable rights), which are in any
respect more favourable to such lender or creditor than paragraph (a) of this Clause 53 and/or Clause 54.13 (Distributions and other payments) are for the Lessor, the Lessee undertakes:
|
(i) |
to notify the Lessor within five (5) days after the granting of or any agreement to grant (as the case may be) such more favourable rights; and
|
(ii) |
within thirty (30) days after the date when such more favourable rights have been agreed or granted, to agree to, provide and grant, such more favourable rights also in favour of the Lessor under or in connection with this Charter, by entering into such documentation if and as the Lessor shall reasonably require, immediately after its request to the Lessee.
|
54 |
Business Restrictions
|
54.1 |
General negative pledge
|
(a) |
No Relevant Party shall create or permit any Lien (other than a Permitted Lien) to exist, arise or be created or extended over the Vessel, any shares of the Lessee or any other property assigned or charged to the Lessor or any Finance
Party.
|
(b) |
The Lessee shall not:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby that asset is or may be leased to, or re-acquired by, any other Relevant Party;
|
(ii) |
sell, transfer, factor or otherwise dispose of any of its receivables;
|
(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,
|
54.2 |
Financial Indebtedness
|
(a) |
Financial Indebtedness incurred under the Operative Documents; and
|
(b) |
Financial Indebtedness, including all inter-company loans or shareholders’ loans or loans from Affiliates of the Lessee, which is subordinated to the Lessor in accordance with Clause 54.5 (Subordination).
|
54.3 |
Guarantees
|
54.4 |
Loans and credit
|
(a) |
loans or credit to permitted under Clause 54.2 (Financial Indebtedness); or
|
(b) |
trade credit granted by it to its customers on normal commercial terms in the ordinary course of its trading activities.
|
54.5 |
Subordination
|
(a) |
are subordinated in all respects to all amounts owing and which may in future become owing by the Lessee under the Operative Documents;
|
(b) |
shall not be subject to payment of interest;
|
(c) |
are and shall remain unsecured by any Lien over the whole or any part of the assets of the Lessee; and
|
(d) |
shall not be capable of becoming subject to any right of set-off or counterclaim.
|
54.6 |
Bank accounts and other financial transactions
|
(a) |
hold cash in any account (other than the Accounts) over or in respect of which any set-off (other than the usual banker’s right of set off), combination of accounts, netting or Lien exists;
|
(b) |
maintain any current or deposit account with a bank or financial institution except for the Accounts and the deposit of money, operation of current accounts and the conduct of electronic banking operations through the Accounts;
|
(c) |
enter into any obligations under operating leases relating to assets; or
|
(d) |
be party to any banking or financial transaction, whether on or off balance sheet, that is not expressly permitted under this Clause 54.
|
54.7 |
Disposals
|
54.8 |
Contracts and arrangements with affiliates
|
54.9 |
Subsidiaries
|
54.10 |
Acquisitions and investments
|
(a) |
acquisitions of assets in the ordinary course of business (such assets not being new businesses or vessels);
|
(b) |
the incurrence of liabilities in the ordinary course of its business;
|
(c) |
any loan or credit not otherwise prohibited under this Charter; or
|
(d) |
liabilities incurred under any Operative Documents to which it is party.
|
54.11 |
Reduction of capital
|
54.12 |
Increase in capital
|
54.13 |
Distributions and other payments
|
(a) |
no Termination Event is continuing at the time;
|
(b) |
no Termination Event would result from doing so; and
|
(c) |
the Lessee is compliant with Clause 59.2 (Security Coverage Ratio) prior to such action and will continue to be so after such action.
|
54.14 |
New material contracts
|
55 |
Use and Employment
|
55.1 |
Use
|
55.2 |
Employment
|
(a) |
The Lessee shall not employ the Vessel or permit its employment:
|
(i) |
in any manner, trade or business which is forbidden by the Flag State, or international law, Sanctions or which is otherwise unlawful or illicit under the law of any relevant jurisdiction;
|
(ii) |
in carrying illicit or prohibited goods;
|
(iii) |
in any manner which may render it liable to condemnation in a prize court, or to destruction, seizure, confiscation, penalty or sanctions; and
|
(iv) |
in any way inconsistent with the provisions or warranties of, or implied in, or outside the cover provided by, any Insurance (including but not limited to the International Navigating Limits).
|
(b) |
In the event of hostilities in any part of the world (whether war be declared or not), the Lessee shall not cause or permit the Vessel to enter or trade to or in any zone which is declared a war zone by any government or by the
Vessel’s war risks insurers unless prior to entering or trading to or in any such zone, the Lessee has first (at its expense):
|
(i) |
effected any special, additional or modified insurance cover or confirmation required by the Vessel’s insurers; and
|
(ii) |
complied with the latest edition published at such time of “Best Management Practice” (BMP5) (or its successor).
|
55.3 |
Sub-Charters
|
(a) |
The Lessee shall not enter into:
|
(i) |
any demise charter for any period in respect of the Vessel; or
|
(ii) |
any other Sub-Charter,
|
(A) |
the Lessee notifies the Lessor and provides copies of any draft charter relating to the same;
|
(B) |
the Lessee executes in favour of the Lessor a specific assignment of all its rights, title and interest in and to such charter and any charter guarantee in the form required by the Lessor;
|
(C) |
the Lessee gives notice of assignment of any demise charter or, as the case may be, Sub-Charter and any related charter guarantee to the other parties to them in the
form required by the Lessor and ensures, on a best efforts basis, that the Lessor receives a copy of that notice acknowledged by each addressee in the form required by the Lessor as soon as practically possible thereafter;
|
(D) |
in the case where such charter is a demise charter, the charterer (1) complies with all of the Lessee’s undertakings with regard to the employment, insurances, operation, repairs and maintenance of the Vessel contained in this Charter
and any Finance Document and (2) provides an assignment of its interest in the insurances of the Vessel in the form required by the Lessor;
|
(E) |
the Lessee provides certified true and complete copies of the charter relating to the Vessel and of any current charter guarantee, if any, immediately after its execution; and
|
(F) |
the Lessee delivers to the Lessor in respect of such demise charter or, as the case may be, Sub-Charter such other documents (including any corporate authorities) as the Lessor may require.
|
(b) |
Except with the prior written consent of the Lessor (such approval not to be unreasonably withheld or delayed), no Sub-Charter shall be materially varied.
|
(c) |
Except with the prior written consent of the Lessor, there shall be no release by the Lessee of any material obligation of any other person under any Sub-Charter (including by way of novation or assignment), no waiver of any breach of
any such obligation and no consent to anything which would otherwise be such a breach.
|
(d) |
Except with the prior written consent of the Lessor, the Lessee shall not terminate or rescind any Sub-Charter or withdraw or substitute the Vessel from service under any Sub-Charter or take any similar action.
|
(e) |
The Lessee shall perform its obligations under any Sub-Charter and use its best endeavours to ensure that each other party to them performs its obligations under such Sub-Charter.
|
55.4 |
Sharing of Earnings
|
55.5 |
Lay up
|
56 |
Maintenance and Operation
|
56.1 |
Supply and crewing
|
56.2 |
Seaworthiness and safe operation
|
(a) |
operationally seaworthy; and
|
(b) |
operated in a proper, safe and seaman-like manner, and in the manner prescribed by all applicable laws and regulations.
|
56.3 |
Repair
|
(a) |
keep the Vessel in a good and efficient state of repair; and
|
(b) |
procure that all repairs to, or replacement of, any damaged, worn or lost parts or equipment are effected in such manner (both as regards workmanship and quality of materials) as not to diminish the value of the Vessel.
|
56.4 |
Repairers’ liens
|
56.5 |
Modification
|
(a) |
Except with the prior written consent of the Lessor, the Lessee shall not make any modification to the Vessel unless such modification is required by any law or regulation applicable to the Vessel.
|
(b) |
The Lessee shall furnish the Lessor with copies of all plans in relation to such modifications, (if applicable) confirmation from the applicable Classification Society and (if applicable) valuation reports.
|
(c) |
The Lessee shall bear all risk and cost of any such modifications.
|
56.6 |
Removal of parts; equipment owned by third parties
|
(a) |
remove any part of the Vessel or any equipment unless at the same time it is replaced with equivalent parts or equipment owned by the Lessee free of any Lien except under the Operative Documents or unless the removed part or item is
not required by (i) applicable law or (ii) any governmental agency having jurisdiction over the Vessel or (iii) the Classification Society and such removal will not, in each case, cause diminishment to the value, performance or useful
life of the Vessel; or
|
(b) |
install on the Vessel any equipment owned by a third party which cannot be removed without causing damage to the structure of the Vessel.
|
56.7 |
Use of equipment
|
56.8 |
Renewal of equipment
|
(a) |
The Lessee shall, at its own expense, replace, renew or substitute such items of equipment as shall be so damaged or worn as to be unfit for use. The Lessee shall procure that all replacements, renewals or substitutions be effected in
such manner as not to materially reduce the value of the Vessel.
|
(b) |
Title to any part replaced, renewed or substituted shall remain with the Lessor until the part which replaced it or the new or substituted item of equipment becomes the property of the Lessor.
|
56.9 |
Additional equipment
|
(a) |
The Lessee may install additional equipment so as to render the Vessel available for any purpose for which the Lessee may require to use or operate the Vessel, provided that no permanent
structural damage is caused to the Vessel by reason of such installation.
|
(b) |
Any additional equipment installed shall be considered the property of the Lessee who may remove such additional equipment at any time before the end of the Charter Period.
|
(c) |
The cost of installing or removing any additional equipment, together with the cost of making good any damage caused by such installation or removal shall be payable in full by the Lessee.
|
56.10 |
Maintenance of class; compliance with Authorisations
|
(a) |
maintain the present class of the Vessel (namely C+ bulk carrier ESP - CSR - BC -A allowed combination of specified empty holds; unrestricted navigation. AUT-UMS, GRAB 20, INWATERSURVEY, MON-SHAFT) with Lloyd’s
Register, or maintain the Vessel with the equivalent classification notation of a member of the International Association of Classification Societies acceptable to the Lessor (such acceptance not to be
unreasonably withheld), in each case free from any overdue recommendations or conditions; and
|
(b) |
comply with, and ensure that the Vessel complies with, the provisions of all Authorisations from time to time applicable to a vessel registered under the laws of the Flag State or otherwise applicable to the Vessel.
|
56.11 |
Surveys
|
(a) |
submit the Vessel to continuous surveys and such periodical or other surveys as may be required for classification purposes; and
|
(b) |
supply to the Lessor copies of all related survey reports which have been issued.
|
56.12 |
Inspection
|
(a) |
The Lessee shall provide an inspection report, or permit the Lessor and/or the Security Agent or any other Finance Party (by independent surveyors or other independent persons appointed by them for that purpose) to board the Vessel at
all reasonable times during the Charter Period and after giving prior reasonable notice to the Lessee (but without interference with the normal operation, trading, loading or unloading of the Vessel), in order to inspect, examine or
survey the Vessel on board to ascertain the condition of the Vessel and satisfy itself that the Vessel is being properly repaired and maintained and to take copies of the manuals and technical records.
|
(b) |
In relation to each inspection, the Lessee shall afford all proper security, safety items and give all reasonable assistance or cooperation. The Lessee shall also give the Lessor reasonable advance notice of any intended dry-docking of
the Vessel.
|
(c) |
If the independent inspector or surveyor appointed by the Lessor or the Security Agent or any other Finance Party under this Clause 56.12 is of the opinion that there are any technical, commercial or operational actions being
undertaken or omitted to be undertaken by the Lessee or any Manager which adversely affect the operation or value of the Vessel or are required to ensure that the Vessel is maintained with the Classification Society and/or to comply with
the terms of this Charter, the Lessee shall forthwith (at its expense) on the Lessor’s demand remedy such action or inaction and provide the Lessor with evidence that it has taken such remedial action.
|
(d) |
The Lessee shall bear, and reimburse to the Lessor where incurred by the Lessor, all costs and expenses of any inspection or survey carried out pursuant to and in accordance with paragraph (a) above not
more than once per calendar year unless a Termination Event has occurred or following any casualty to the Vessel which is or is likely to be or to become a Major Casualty.
|
56.13 |
Manuals and Technical Records
|
(a) |
all certified true copies of records, logs, manuals, handbooks, technical data, drawings and other materials and documents which are required to be maintained in respect of the Vessel to comply with any applicable laws and regulations,
or the requirements of the Vessel’s approved classification society are maintained;
|
(b) |
accurate, complete and up-to-date records and logs of all voyages made by the Vessel, and of all maintenance, repairs and modifications to the Vessel are kept; and
|
(c) |
the Lessor and its representatives are permitted to examine and take copies of all such records and logs and other documents.
|
56.14 |
Manager and Designated Person Ashore
|
(a) |
a company to be appointed as manager of the Ship unless:
|
(i) |
that manager and the terms of its appointment have first been approved by the Lessor (such approval being deemed given in respect of Fidelity Marine Inc. of the Republic of the Marshall Islands, Seanergy
Management Corp. of the Republic of the Marshall Islands and United Management as commercial manager and Seanergy, V.Ships of Cyprus, V.Ships Greece Ltd. of Bermuda and Global Seaways of the Republic of the Marshall Islands as technical
manager); and
|
(ii) |
such manager has delivered a duly executed Manager’s Undertaking to the Lessor before its appointment;
|
(b) |
a company to be the technical manager of the Vessel unless it is in possession of an appropriate and valid Document of Compliance under the ISM Code; or
|
(c) |
any change to the Designated Person Ashore (as defined in the Guidelines on application of the ISM Code issued by the International Chamber of Shipping and the International Shipping Federation) or the company responsible for
compliance with the ISM Code.
|
56.15 |
Compliance with laws
|
56.16 |
Information relating to the Vessel
|
56.17 |
Prevention of and release from arrest
|
(a) |
The Lessee shall promptly pay and discharge all debts, damages, liabilities and outgoings (other than Permitted Liens which may subsist on a temporary basis) which have given or may give rise to any maritime, statutory or possessory
liens on, or claims enforceable against, the whole or any part of the Vessel, its Earnings or the Insurances.
|
(b) |
In the event of:
|
(i) |
a writ or libel being filed against the whole or any part of the Vessel, its Earnings or the Insurances, or of any of the same being arrested, attached or levied upon pursuant to legal process or purported legal process; or
|
(ii) |
detention of the Vessel in exercise or purported exercise of any lien or claim referred to in paragraph (i) above,
|
56.18 |
Payment of outgoings and evidence of payments
|
(a) |
pay all tolls, dues and other outgoings in respect of the Vessel, its Earnings and the Insurances when due and payable;
|
(b) |
keep proper books of account in respect of the Vessel and its Earnings and as and when the Lessor may require, make such books available for inspection on behalf of the Lessor; and
|
(c) |
furnish satisfactory evidence at the request of the Lessor that:
|
(i) |
the wages, allotments and the insurance and pension contributions of the master and crew are being promptly and regularly paid;
|
(ii) |
all deductions from crew’s wages in respect of any tax liability are being properly accounted for; and
|
(iii) |
the master has no claim for disbursements, other than those incurred by him in the ordinary course of trading.
|
56.19 |
No pledging of credit
|
56.20 |
Notification of certain events
|
(a) |
any damage to the Vessel requiring repairs the cost of which will or might exceed the Major Casualty Amount (or the equivalent in any other currency);
|
(b) |
any occurrence in consequence of which the Vessel has become or may become a Total Loss;
|
(c) |
any requisition of the Vessel for hire;
|
(d) |
any requirement or recommendation made by any insurer or classification society or by any competent authority which is not complied with within any time limit presented by any insurer, society or authority;
|
(e) |
any arrest or detention of the Vessel or any exercise or purported exercise of a lien or other claim on the whole or any part of the Vessel, its Earnings or the Insurances;
|
(f) |
any petition or notice of meeting to consider any resolution to wind-up the Lessee or the Guarantor (or any analogous event under the laws of the place of its incorporation);
|
(g) |
the occurrence of any Potential Termination Event or Termination Event;
|
(h) |
the occurrence of any collision or damage involving the Vessel in consequence of which the Lessee has notified any insurer or classification society of such occurrence;
|
(i) |
the occurrence of any Environmental Claim involving the Vessel; and
|
(j) |
any withdrawal of any certificate issued pursuant to the ISM Code and ISPS Code.
|
56.21 |
Inventory of Hazardous Materials
|
56.22 |
Sustainable and socially responsible dismantling of vessels
|
57 |
Title and Registration
|
57.1 |
Title and ownership
|
(a) |
The Vessel shall belong to the Lessor and title to, and ownership of, the Vessel shall remain vested in the Lessor.
|
(b) |
The Lessee shall have no right, title or interest in or to any part of the Vessel except the rights expressly set out in this Charter.
|
57.2 |
Registration
|
(a) |
The Lessee shall keep the Vessel registered as a Marshall Islands ship, and shall not do or permit to be done anything, or omit to do anything which could or might result in:
|
(i) |
such registration being forfeited or imperilled; or
|
(ii) |
the Vessel being required to be registered under any other flag.
|
(b) |
The Lessee shall not register the Vessel or permit her registration under any other laws and flag without the prior written consent of the Lessor (such consent not to be unreasonably withheld). The Lessee shall bear the cost (including
but not limited to the cost incurred by any Finance Party) of any change in flag as requested by the Lessee or as required by law.
|
57.3 |
Vessel’s name and colours
|
(a) |
The Lessee shall notify the Lessor in writing of any intended change to the name of the Vessel. Except with the prior written consent of the Lessor (such consent not to be unreasonably withheld), the Lessee shall not change the name
or any particulars of the Vessel. The Lessor shall, at the Lessee’s expense, co-operate in respect of any formalities required in connection with a change of name of the Vessel.
|
(b) |
The Lessee may, at its own expense, paint the Vessel in its own colours and install and display its insignia on board.
|
57.4 |
Disposal
|
57.5 |
Copy of Mortgage
|
(i) |
any person having business with the Vessel which might give rise to any lien on the Vessel other than a lien for crew’s wages and salvage; and
|
(ii) |
any representative of the Lessor or the Security Agent (or any other Finance Party).
|
57.6 |
Mortgage and Letter of Quiet Enjoyment
|
57.7 |
Sanctions and Vessel trading
|
(a) |
the Vessel shall not be used by or for the benefit of a Restricted Person;
|
(b) |
the Vessel 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 Relevant Party);
|
(c) |
the Vessel shall not make a voyage to or from any Sanctioned Country;
|
(d) |
the Vessel 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
|
(e) |
each Sub-Charter shall contain, for the benefit of the Lessee, language which gives effect to the provisions of this Clause 57.7 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 Relevant Party).
|
58 |
Insurance
|
58.1 |
Maintenance of obligatory insurances
|
(a) |
all perils of the seas and usual marine risks (including hull and machinery and excess risks) and hull war risks including piracy, hijacking theft and terrorism;
|
(b) |
protection and indemnity risks and war risks (including excess war risks including (but not limited to) crew, cargo liability, pollution liability, removal of wreck and contractual liability); and
|
(c) |
any other risks against which the Lessor considers, having regard to practices and other circumstances prevailing at the relevant time, it would be reasonable for the Lessee to insure and which are specified by the Lessor by notice to
the Lessee.
|
58.2 |
Terms of obligatory insurances
|
(a) |
in dollars;
|
(b) |
in the case of all 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 Outstanding Charter Hire Principal; and
|
(ii) |
the Fair Market Value of the Vessel for the time being (as determined by the Lessor on the basis of a valuation obtained from an Approved Valuer);
|
(c) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international
marine insurance market;
|
(d) |
in the case of protection and indemnity risks, in respect of the full tonnage of the Vessel (but, in relation to liability for oil pollution, for an amount of not less than $1,000,000,000);
|
(e) |
on terms approved by the Lessor; and
|
(f) |
through Approved Brokers and with approved insurance companies and/or underwriters (which, for the avoidance of doubt, are in good standing and of recognised responsibility and reputation and having a credit rating of not less than
BBB+ by Standard and Poor’s or its equivalent by another credit rating agency acceptable to the Lessee) or, in the case of war risks and protection and indemnity risks, in approved war risks and
protection and indemnity risks associations (which, for the avoidance of doubt, shall in any event be a member of the International Group of P&I Clubs).
|
58.3 |
Further protections for the Lessor
|
(a) |
subject always to paragraph (b), name the Lessee and, if required by the Lessor, the Lessor and/or the Security Trustee as named assureds as well as any Manager or any other person approved by the Lessor provided that such Manager or
other person has an interest which is limited:
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b) |
whenever the Security Agent requires to be endorsed as an additional assured, name (or be amended to name) the Security Agent (or any other Finance Party) as additional assured for its rights and interests, warranted no operational
interest and with full waiver of rights of subrogation against the Security Agent (or any other Finance Party);
|
(c) |
name the Lessor, the Security Trustee and the Security Agent (or any other Finance Party) as loss payee with such directions for payment as the Lessor may specify;
|
(d) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Lessor, the Security Trustee or 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 Lessor and/or Security Trustee and/or the Security Agent may make proof of loss if the Lessee fails to do so.
|
58.4 |
Renewal of obligatory insurances
|
(a) |
at least seven (7) Business Days (or such shorter period acceptable to the Lessor) before the expiry of any obligatory insurance:
|
(i) |
notify the Lessor of the Approved Brokers (or other insurers) and any protection and indemnity or war risks association through or with which the Lessee proposes to renew that obligatory insurance and of the proposed terms of renewal;
and
|
(ii) |
obtain the Lessor’s approval to the matters referred to in sub-paragraph (i) above;
|
(b) |
at least three (3) days (or such shorter period acceptable to the Lessor) before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Lessor’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 at least two (2) days before such expiry notify the Lessor in writing of the terms
and conditions of the renewal.
|
58.5 |
Copies of policies; letters of undertaking
|
(a) |
pro forma copies of all policies when requested, certificate of insurance and/or cover note relating to the obligatory insurances which they are to effect or renew in a form required by the Lessor; and
|
(b) |
a letter or letters or undertaking in a form required by the Lessor 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 58.3 (Further protections for the Lessor);
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with such loss payable clause;
|
(iii) |
they will advise the Lessor immediately of any material change to the terms of the obligatory insurances and provide as soon as reasonably practicable but no later than seven (7) days prior to the notice of cancellation;
|
(iv) |
they will, if they have not received notice of renewal instructions from the Lessee or its agents, notify the Lessor as soon as reasonably practicable but no later than seven (7) days before the expiry of the obligatory insurances;
|
(v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Lessor of the terms of the instructions;
|
(vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Vessel under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of the Vessel 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;
|
(vii) |
they will arrange for a separate policy to be issued in respect of the Vessel forthwith upon being so requested by the Lessor; and
|
(viii) |
they will immediately notify the Lessor if they receive from the Lessee any insurance company or any underwriter notice of cancellation of the obligatory insurances.
|
58.6 |
Copies of certificates of entry
|
(a) |
a copy of the certificate of entry for the Vessel;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Lessor; and
|
(c) |
the endorsement referred to in paragraph (b) of Clause 58.3 (Further protections for the Lessor).
|
58.7 |
Deposit of original policies
|
58.8 |
Payment of premiums
|
58.9 |
Guarantees
|
58.10 |
Compliance with terms of insurances
|
(a) |
The Lessee shall not do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an
obligatory insurance repayable in whole or in part.
|
(b) |
Without limiting paragraph (a) above, the Lessee 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 58.5 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Lessor has not given its prior approval;
|
(ii) |
not make any changes relating to the classification or classification society or manager or operator of the Vessel approved by the underwriters of the obligatory insurances;
|
(iii) |
make (and promptly supply copies to the Lessor of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Vessel is entered to maintain cover for trading to the
United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
|
(iv) |
not employ the Vessel, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to
extra premium or otherwise) which the insurers specify.
|
58.11 |
Alteration to terms of insurances
|
58.12 |
Settlement of claims
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Lessor or the Security Trustee to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
58.13 |
Provision of copies of communications
|
(a) |
the Approved Brokers;
|
(b) |
the approved protection and indemnity and/or war risks associations; and
|
(c) |
the approved insurance companies and/or underwriters,
|
(i) |
the Lessee’s obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
(ii) |
any credit arrangements made between the Lessee 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.
|
58.14 |
Provision of information
|
(a) |
if requested by the Lessor, obtain or prepare any report from an independent marine insurance broker appointed by the Lessor, 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 58.17 (Mortgagee’s Insurance Interest Policies) or dealing with or considering any matters relating to any
such insurances,
|
58.15 |
Innocent Owner’s interest insurance
|
(a) |
The Lessee shall promptly following the Lessor’s demand reimburse to the Lessor all costs, premiums and expenses the Lessor has incurred in connection with:
|
(i) |
an innocent owner’s interest insurance in relation to the Vessel’s hull insurances in an amount which shall equal to or exceed one hundred and twenty per cent (120%) of the Outstanding Charter Hire Principal from time to time; and
|
(ii) |
a contingency insurance against third party liabilities for an innocent owner,
|
(b) |
The Lessor shall also have the option to request for the Lessee to pay directly the costs, premiums and expenses referred to in paragraph (a) of this Clause 58.15 and the Lessee shall comply with such request.
|
58.16 |
Modification to Insurance
|
58.17 |
Mortgagee’s Insurance Interest Policies
|
58.18 |
Insurance Proceeds
|
(a) |
each sum receivable in respect of a Major Casualty, other than in respect of protection and indemnity risk insurances, shall be paid to the Security Trustee or, as the case may be, the Security Agent (or any other Finance Party);
|
(b) |
the insurance moneys received by the Security Trustee or, as the case may be, the Security Agent (or any other Finance Party) in respect of any such Major Casualty shall be paid:
|
(i) |
to the person to whom the relevant liability shall have been incurred; or
|
(ii) |
upon the Lessee furnishing evidence satisfactory to the Lessor or the Security Agent (or any other Finance Party) that all loss and damage resulting from the casualty has been properly made good and repaired and paid for by the Lessee,
to the Lessee or, at the option of the Lessor or, as the case may be, the Security Agent (or any other Finance Party) where the repairs have not yet been paid for, to the person by whom any repairs have been or are to be effected;
|
(c) |
the receipt by any such person referred to in paragraphs (i) and (ii) of paragraph (b) above shall be a full and sufficient discharge of the same to the Security Trustee or, as the case may be, the Security Agent (or any other Finance
Party); and
|
(d) |
subject to the foregoing:
|
(i) |
each sum receivable in respect of the Insurances (insofar as the same are hull and machinery or war risks insurances) which does not exceed the Major Casualty Amount shall be paid in full to the Lessee or to its order and shall be
applied by it for the purpose of making good the loss and fully repairing all damage in respect of which the receivable shall have been collected; and
|
(ii) |
each sum receivable in respect of protection and indemnity risk Insurances shall be paid direct to the person to whom the liability, to which that sum relates, was incurred, or to the Lessee in reimbursement to it of moneys expended in
satisfaction of such liability.
|
58.19 |
Financing
|
59 |
Asset Coverage Threshold
|
59.1 |
Valuations
|
(a) |
The Lessor shall be entitled to require the Fair Market Value of the Financed Vessels, to be determined (i) not earlier than thirty (30) days before the Scheduled Delivery Date (the “Fair Market Value
at Closing”) and (ii) at any time during the Charter Period. Prior to the Delivery Date, the Lessee shall bear the cost of all valuations of the Financed Vessels to be delivered pursuant to item 7 (Valuation Reports) of Part II of Schedule 1 (Conditions Precedent) and for the purposes of determining the Fair Market Value at Closing.
|
(b) |
After the Delivery Date, the Lessee shall only bear the cost of valuations of the Financed Vessels so obtained twice per year in accordance with paragraph (c) below, unless there is a breach of Clause 59.2 (Security Coverage Ratio) or a Potential Termination Event occurs which is continuing or the Lessor reasonably believes that the market value of any Financed Vessel has decreased, in which event the Lessee shall bear the
cost of all such valuations.
|
(c) |
Subject to paragraph (a) above, the Fair Market Value of each Financed Vessel shall be tested on or around 30 June and 31 December during each year within
the Charter Period (each a “Testing Date”).
|
(d) |
Each valuation of a Financed Vessel shall be:
|
(i) |
provided in Dollars;
|
(ii) |
issued on a date not earlier than thirty (30) days prior to the Testing Date;
|
(iii) |
be made with or without physical inspection of the relevant Financed Vessel (as the Lessor may require) and on a charter free basis; and
|
(iv) |
be on the basis of a sale for prompt delivery for cash at arm’s length on normal commercial terms as between a willing seller and a willing buyer.
|
(e) |
The Lessee shall promptly provide to the Lessor and any Approved Valuer any information which they reasonably require for the purposes of providing such a valuation.
|
59.2 |
Security Coverage Ratio
|
(a) |
on or after a Testing Date; or
|
(b) |
after the Lessor has obtained valuations of a Financed Vessel in accordance with paragraph (a) of Clause 59.1 (due to the Lessor reasonably believing that the market value of any Financed Vessel has decreased),
|
(i) |
from the first (1st) to the twelfth (12th) month (inclusive) of the
Charter Period, less than one hundred and twenty per cent (120%); or
|
(ii) |
at any time thereafter, less than one hundred and thirty per cent (130%),
|
(i) |
prepay such part of the Outstanding Charter Hire Principal and/or procure that the Associated Lessee prepays such part of the Outstanding Charter Hire Principal (as defined in the Associated Charter), as may be necessary in order to
restore the Security Coverage Ratio to comply with the relevant Asset Coverage Threshold; or
|
(ii) |
provide (and/or procure that the Associated Lessee provides) additional security in form and amount acceptable to the Lessor (included but not limited in the form of a blocked Dollar cash deposit in
an Account over which Account Security exists).
|
60 |
Risk, Total Loss and Damage
|
60.1 |
Risk
|
(a) |
any Total Loss of, or any other damage to, the Vessel; and
|
(b) |
any other occurrence which shall deprive the Lessee of the use, possession or enjoyment of the Vessel.
|
60.2 |
Notification
|
60.3 |
Total Loss
|
(a) |
All sums receivable in respect of the Insurances of the Vessel after occurrence of a Total Loss shall be paid to the Lessor and the Lessor shall apply them in accordance with Clause 66.2 (Payments on
Termination Event or Total Loss), provided that if such insurance proceeds are in excess of all sums payable to the Lessor thereunder, any excess shall be payable to (i) first the Security Trustee for the account of the
Associated Lessor, and/or to the Associated Lessor directly, in each case in payment of the sum expressed to be payable by the Associated Lessee to the Associated Lessor under the last sentence of paragraph (a) or (as the case may be)
paragraph (b) of Clause 66.2 (Payments on Termination Event or Total Loss) and (ii) secondly, as to any balance and provided that no Termination Event is outstanding, to the Lessee or to whoever
else may be entitled to it.
|
(b) |
The Lessee shall pay to the Lessor on the Total Loss Payment Date all sums due to the Lessor under Clause 66.2 (Payments on Termination Event or Total Loss), less any amount which has been
applied by the Lessor pursuant to paragraph (a) above.
|
(c) |
The Lessee shall procure that the Associated Lessee shall pay to the Associated Lessor on the Total Loss Payment Date all sums due to the Associated Lessor under the last sentence of paragraph (a) or (as the case may be) paragraph (b)
of Clause 66.2 (Payments on Termination Event or Total Loss), less any amount which has already been paid to the Security Trustee and/or the Associated Lessor for the Associated Lessor’s account
pursuant to paragraph (a) above.
|
60.4 |
Payment of Rent
|
61 |
Requisition
|
61.1 |
Continuation of charter
|
(a) |
the Lessee shall promptly inform the Lessor of such requisition;
|
(b) |
unless and until the Vessel becomes a Total Loss following such requisition and the Lessee shall have paid all sums due pursuant to Clause 66.2 (Payments on Termination Event or Total Loss), the
chartering of the Vessel under this Charter shall continue for the remainder of the Charter Period (subject to the provisions of Clause 66 (Rights following a Termination Event)) and the Lessee
shall remain fully responsible for complying with all its obligations under this Charter, other than such obligations (not being obligations to make payment) which the Lessee is unable to comply with solely by virtue of such requisition;
|
(c) |
if there is no Termination Event, save as mentioned in paragraph (d) below, the Lessee shall during the Charter Period be entitled to all requisition hire paid to the Lessor or to the Lessee by such Government Agency or other competent
authority on account of such requisition;
|
(d) |
the Lessor shall (subject to any right of set-off which the Lessor may have in respect of any amounts due and unpaid under the terms hereof) pay any requisition hire to the Lessee immediately upon receipt;
|
(e) |
the Lessee shall as soon as practicable after the end of any requisition for hire, cause the Vessel to be put into the condition required by this Charter, and where that requisition shall end after the expiry or termination of the
Charter Period, the Lessee shall, as soon as practicable, cause the Vessel to be put into the redelivery condition required by Clause 62.2 (Redelivery conditions), allowance being made for fair
wear and tear in respect of the period from the expiry or termination of the Charter Period; and
|
(f) |
the Lessor shall be entitled to all compensation payable in respect of any change in the structure, state or condition of the Vessel arising during the period of requisition for hire. The Lessor shall apply such compensation in
reimbursing the Lessee for the cost of complying with its obligations under this Charter (and otherwise, to the extent that there remains an excess, against any other amounts that become due and payable by the Lessee under the Operative
Documents), provided always that if a Potential Termination Event or a Termination Event or an Early Termination Event has occurred and is continuing, the Lessor shall be entitled to apply such compensation in or towards settlement of any
amounts owing by the Lessee under this Charter or any of the other Operative Documents to which the Lessee is a party.
|
61.2 |
Requisition at end of Charter Period
|
(a) |
the leasing of the Vessel under this Charter shall (unless otherwise agreed between the Parties) be terminated at the end of the Charter Period, but without prejudice to the accrued rights of the Parties, including the obligation of
the Lessee contained in Clause 62 (Redelivery) (as modified by sub‑paragraph 62.1(a)), and the Lessor shall be entitled to any requisition hire payable for the period from the expiry of the Charter
Period; and
|
(b) |
if the Lessor is prevented by reason of the requisition for use or hire from transferring title to the Vessel at the end of the Charter Period, the Lessor shall be temporarily relieved from its obligations to do so. However, the Lessor
shall be obliged immediately upon the release of the Vessel from such requisition, if requested by the Lessee to transfer title to the Vessel to the Lessee in accordance with Clause 67 (Transfer of title).
|
62 |
Redelivery
|
62.1 |
Redelivery
|
(a) |
The Vessel will be deemed to have been redelivered by the Lessee to the Lessor in accordance with the redelivery conditions set out in Clause 62.2 (Redelivery conditions) immediately before
completion of the sale of the Vessel pursuant to Clause 65 (Purchase of Vessel by Lessee).
|
(b) |
If for any reason the Vessel is not sold as a result of the exercise, pursuant to paragraph (a) of Clause 65, of a Purchase Option or the Purchase Obligation (and provided it is not a Total Loss), at the end of the Charter Period the
Lessee shall, at its own expense, redeliver the Vessel to the Lessor in accordance with the redelivery conditions set out in Clause 62.2 (Redelivery conditions).
|
62.2 |
Redelivery conditions
|
(a) |
safely afloat at an easily accessible, recognised and safe port or anchorage approved by the Lessor (which is not subject to Sanctions);
|
(b) |
free of any class notation, statutory recommendations and any other standard certificates or statements applied in this industry affecting her trading certificates, and with all trading and class certificates valid and without
qualification, and in the event of redelivery occurs prior to the five-year renewal of any class or statutory certificate, all costs of the renewal survey shall be borne or reimbursed by the Lessee;
|
(c) |
without any overdue condition;
|
(d) |
in the same structure, state and condition as at the Delivery Date (fair wear and tear excepted) and having installed all equipment, spares and replacements installed on the Delivery Date (provided that any equipment installed by the
Lessee that replaced and improved the equipment existing on the Delivery Date shall be taken over by the Lessor free of charge);
|
(e) |
with all Manuals and Technical Records with at least 3 months’ validity remaining as at the redelivery date and all the original copies of certificates, documentation and drawings delivered to the Lessee at the Delivery Date;
|
(f) |
free of crew and officers (unless otherwise agreed by the Lessor) and with all arrears of wages of the master and crew of the Vessel fully paid;
|
(g) |
with all machinery fluid reservoirs and tanks, such as unused lubricating oils, hydraulic oils and bunkers on board the Vessel as would be sufficient to enable the Vessel to sail to the nearest
bunker port in compliance with all bunkering fuel content regulations then applicable in such place of redelivery;
|
(h) |
free and clear of all Liens (other than the Liens created pursuant to the Operative Documents or the Finance Documents) and free of charter (unless otherwise agreed by the Lessor); and
|
(i) |
without prejudice to the above, being in generally good condition, tight, staunch, strong and well and sufficiently tackled, apparelled, furnished, equipped and in every respect seaworthy (ordinary wear and tear excepted).
|
62.3 |
Payment of Rent
|
63 |
Termination Events
|
63.1 |
The Lessor and the Lessee agree that from the date of this Charter:
|
(a) |
it is a fundamental term and condition of this Charter and any other Operative Document that none of the events set out in this Clause 63 shall occur after the date of this Charter or at any time during the Charter Period; and
|
(b) |
the occurrence of any such event shall constitute a repudiatory breach of this Charter by the Lessee, entitling the Lessor to accept such repudiation and to exercise any of its rights under Clause 66 (Rights
following a Termination Event).
|
63.2 |
Non-payment
|
(a) |
its failure to pay is caused by administrative or technical error; and
|
(b) |
payment is received within three (3) Business Days of its due date.
|
63.3 |
Value of security, failure to agree terms of an Operative Document upon request of the Security Agent; Conditions subsequent
|
63.4 |
Financial covenants
|
63.5 |
Insurance
|
(a) |
The Insurances of the Vessel are not placed and kept in force in the manner required by Clause 58 (Insurance).
|
(b) |
Any insurer either:
|
(i) |
cancels any such Insurances; or
|
(ii) |
disclaims liability under them or asserts that its liability under them is or should be reduced by reason of any mis-statement or failure or default by any person.
|
63.6 |
Sanctions
|
63.7 |
Other obligations
|
63.8 |
Misrepresentation
|
63.9 |
Cross default
|
(a) |
Any Financial Indebtedness of a Relevant Party (other than a Third Party Manager) is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of a Relevant Party (other than a Third Party Manager) 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 a Relevant Party (other than a Third Party Manager) is cancelled or suspended by a creditor of such Relevant Party as a result of an event of default (however described).
|
(d) |
Any creditor of a Relevant Party (other than a Third Party Manager) becomes entitled to declare any Financial Indebtedness of such Relevant Party due and payable prior to its specified maturity as a result of an event of default
(however described).
|
(e) |
No Termination Event will occur under this Clause 63.9 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to
(d) above is, at any relevant time, less than $5,000,000 in aggregate (or the equivalent in any other currency) in the case of the Guarantor or a Manager.
|
63.10 |
Insolvency
|
(a) |
is unable or admits inability to pay its debts as they fall due;
|
(b) |
is declared to be unable to pay its debts under applicable law;
|
(c) |
suspends or threatens to suspend making payments on any of its debts or agrees with any of its creditors to any standstill period in respect thereof; or
|
(d) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding the Lessor in its capacity as such) with a view to rescheduling any of its indebtedness.
|
63.11 |
Insolvency proceedings
|
(a) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, bankruptcy, administration, provisional supervision or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any
Relevant Party;
|
(b) |
a composition, assignment or arrangement with any creditor of any Relevant Party;
|
(c) |
the appointment of a liquidator, receiver, administrator or other similar officer in respect of any Relevant Party or any of its assets; or
|
(d) |
enforcement of any Liens over any assets of any Relevant Party,
|
63.12 |
Creditors’ process
|
63.13 |
Cessation of business
|
63.14 |
Failure to pay final judgment
|
63.15 |
Repudiation
|
(a) |
repudiates any Transaction Document to which it is a party; or
|
(b) |
evidences an intention to repudiate any Transaction Document to which it is a party.
|
63.16 |
Liens
|
63.17 |
Arrest of the Vessel
|
63.18 |
Management Agreements
|
63.19 |
Material Adverse Change
|
63.20 |
Change of Control
|
63.21 |
Modification, revocation, termination and expiry of Authorisation, etc.
|
63.22 |
Unlawfulness, invalidity and unenforceability
|
63.23 |
Security Documents
|
63.24 |
Litigation, arbitration or administrative proceedings
|
63.25 |
Associated Charter
|
63.26 |
De-listing
|
63.27 |
Replacement of Manager
|
64 |
Purchase Option and Purchase Obligation
|
64.1 |
Purchase Option
|
(a) |
If no Termination Event or Potential Termination Event has occurred and is continuing, the Lessee shall have the option (the “Purchase Option”) to purchase the Vessel on the basis set out in
paragraph (b) of Clause 65 (Purchase of Vessel by Lessee) on any Payment Date (the date on which a Purchase Option is to be exercised is herein referred to as the “Purchase
Option Date”).
|
(b) |
The Purchase Option shall be exercisable by the Lessee by giving irrevocable written notice to the Lessor at least thirty (30) days prior to the proposed Purchase Option Date.
|
64.2 |
Purchase Option Price
|
(a) |
any Rent due or accrued but unpaid;
|
(b) |
the Outstanding Charter Hire Principal;
|
(c) |
any interest accrued due on the unpaid and overdue Rent or the Outstanding Charter Hire Principal at the Default Rate;
|
(d) |
the relevant Prepayment Fee;
|
(e) |
any reasonable and documented costs incurred by the Lessor or any other Creditor Party to the Finance Parties under the Finance Documents as a result of or in connection with the Purchase Option being exercised (and this Charter being
terminated early and/or cancelled hereunder);
|
(f) |
any documented fees or other amounts due and payable but unpaid by any Relevant Party to the Lessor or any other Creditor Party under any of the Operative Documents; and
|
(g) |
any out of pocket costs (including legal costs) incurred by the Lessor or any other Creditor Party as a result of or in connection with the termination of the Charter and the sale and purchase hereunder,
|
64.3 |
Purchase Obligation
|
(a) |
any Rent due or accrued but unpaid;
|
(b) |
the Outstanding Charter Hire Principal;
|
(c) |
any interest accrued due on the unpaid and overdue Rent or the Outstanding Charter Hire Principal at the Default Rate;
|
(d) |
any relevant Break Costs;
|
(e) |
any costs incurred by the Lessor or any other Creditor Party to the Finance Parties under the Finance Documents as a result of or in connection with this Charter being terminated early and/or cancelled hereunder;
|
(f) |
any other amounts due and payable but unpaid by any Relevant Party to the Lessor or any other Creditor Party under any of the Operative Documents; and
|
(g) |
any out of pocket costs (including legal costs) incurred by the Lessor or any other Creditor Party as a result of or in connection with the sale and purchase hereunder,
|
65 |
Purchase of Vessel by Lessee
|
(a) |
Immediately upon receipt by the Lessor of the sums set out in Clause 64.2 (Purchase Option Price) or Clause 64.3 (Purchase Obligation), as the case may
be, and upon receipt by the Associated Lessor of any applicable sums payable to it by the Associated Lessee as set out in any such clause, and subject to no Termination Event or Potential Termination Event being outstanding and/or having
occurred and subject to the Security Coverage Ratio complying with the Asset Coverage Threshold (as each such term is defined in the Associated Charter) applicable at the time pursuant to Clause 59.2 (Security
Coverage Ratio) of the Associated Charter (including in each case on, before or after the said transfer of title and the sale, transfer other actions referred to in paragraph (b) below), the Lessor shall transfer title to the
Vessel to the Lessee or its nominee on the terms set out in Clause 67 (Transfer of title).
|
(b) |
The Vessel shall be sold or transferred by the Lessor to the Lessee on the following terms:
|
(i) |
for a consideration of $1;
|
(ii) |
the sale will be on an “as is, where is” basis;
|
(iii) |
the Lessor shall pass to the Lessee such title to the Vessel as the Lessor has acquired pursuant to the Memorandum of Agreement, warranted free of all Liens created by the Lessor;
|
(iv) |
the sale shall exclude all liability of the Lessor, to the same extent as such liability is excluded by Clause 43 (Extent of Lessor’s liability), except for the warranty given by the Lessor in
paragraph (iii) above;
|
(v) |
if the Vessel is, at the date of sale, subject to any requisition for hire, the sale will be subject to such requisition;
|
(vi) |
the Lessor will transfer to the Lessee or its nominee the benefit of all Vessel rights which it then holds;
|
(vii) |
any terms implied to such sale by any applicable statute or law are hereby excluded to the extent such exclusion can legally be made and without limiting the generality of the foregoing, this sale of the Vessel shall be specifically
outside the terms of the UK Sale of Goods Act 1979 or any statutory modification or re-enactment thereof for the time being in force; and
|
(viii) |
all costs, expenses, Taxes and any payment of a similar nature arising in connection with the sale of the Vessel by the Lessor shall be for the account of the Lessee.
|
66 |
Rights following a Termination Event
|
66.1 |
Rights on Termination Event
|
(a) |
by written notice to the Lessee:
|
(i) |
effect compliance on the Lessee’s behalf with any requirements in respect of which the Lessee is in default and if the Lessor incurs any expense in effecting such compliance, the Lessor shall be entitled (without prejudice to Clause
66.2 (Payments on Termination Event or Total Loss)) to recover such expense from the Lessee together with interest on it at the Default Rate from the date on which such expenditure is incurred by
the Lessor until the date of reimbursement by the Lessee (both before and after judgment); and/or
|
(ii) |
proceed by appropriate court action or actions to enforce performance of this Charter, or to recover damages for the breach of this Charter; and/or
|
(iii) |
accept the repudiation of this Charter by the Lessee, and cancel the Memorandum of Agreement and/or terminate the leasing of the Vessel under this Charter with immediate effect (following which all rights of the Lessee under this
Charter will cease, but without prejudice to the continuing obligations of the Lessee under this Charter and the other Operative Documents) and/or require the Lessee to purchase the Vessel or redeliver the Vessel to the Lessor in
accordance with Clause 62 (Redelivery); and/or
|
(iv) |
inspect the Vessel and/or, subject to applicable law, take possession of the Vessel, for which purposes the Lessor may enter any premises belonging to or in the occupation or control of the Lessee where the Vessel may be located;
and/or
|
(v) |
notify the Lessee of the occurrence of the same and demand the payment of the Termination Sum by the Lessee, whereupon the Lessee shall immediately pay the Termination Sum to the Lessor (and upon receipt of the Termination Sum in full,
and subject to no Termination Event or Potential Termination Event being outstanding and/or having occurred and further subject to the Security Coverage Ratio complying with the Asset Coverage Threshold (as each such term is defined in
the Associated Charter) applicable at the time pursuant to clause 59.2 (Security Coverage Ratio) of the Associated Charter (including in each case on, before or after the sale, transfer and
redelivery referred to below), the Lessor shall sell, transfer and redeliver, at the cost and expense of the Lessee, the Vessel to the Lessee in accordance with Clause 67 (Transfer of title)); and
|
(b) |
exercise any or all of its rights, remedies, powers or discretions under the Security Documents.
|
66.2 |
Payments on Termination Event or Total Loss
|
(a) |
in case of the occurrence of a Total Loss Payment Date, the aggregate of the following amounts:
|
(i) |
any Rent (including, if applicable, the Balloon Rental) due or accrued but unpaid;
|
(ii) |
the Outstanding Charter Hire Principal;
|
(iii) |
any interest accrued and unpaid on the unpaid Rent (including, if applicable, the Balloon Rental) or the Outstanding Charter Hire Principal at the Default Rate;
|
(iv) |
any relevant Break Costs;
|
(v) |
the relevant Prepayment Fee;
|
(vi) |
any costs incurred by the Lessor or any other Creditor Party to the Finance Parties under the Finance Documents as a result of or in connection with the early termination and/or cancellation hereunder;
|
(vii) |
any fee or other amount due and payable but unpaid by any Relevant Party to the Lessor or any other Creditor Party under any of the Operative Documents; and
|
(viii) |
any out of pocket costs (including legal costs) incurred by the Lessor or any other Creditor Party as a result of or in connection with the early termination and/or cancellation hereunder,
|
(b) |
in case of a termination due to the occurrence of a Termination Event, the aggregate of the following amounts on the Termination Sum Payment Date:
|
(i) |
any Rent (including, if applicable, the Balloon Rental) due or accrued but unpaid;
|
(ii) |
the Outstanding Charter Hire Principal;
|
(iii) |
any interest accrued on any unpaid and overdue Rent or on the Outstanding Charter Hire Principal at the Default Rate;
|
(iv) |
any relevant Break Costs;
|
(v) |
the relevant Prepayment Fee;
|
(vi) |
any costs incurred by the Lessor or any other Creditor Party to the Finance Parties under the Finance Documents in connection with the early termination and/or cancellation hereunder;
|
(vii) |
any fee or other amount due and payable but unpaid by any Relevant Party to the Lessor or any other Creditor Party under any of the Operative Documents; and
|
(viii) |
any out-of-pocket costs (including legal costs) incurred by the Lessor or any other Creditor Party in connection with the early termination hereunder,
|
66.3 |
Lessor’s obligations upon receipt of payment
|
(a) |
procure the release of the Mortgage and all other Liens created by the Lessor on the Vessel and the other security created pursuant to the Operative Documents in relation to the Vessel and this Charter (and if they relate to both the
Vessel and the Associated Vessel, and/or to both this Charter and the Associated Charter, only insofar as they relate to the Vessel and this Charter); and
|
(b) |
save where the Vessel is a Total Loss, transfer title to the Vessel to the Lessee or its nominee pursuant to Clause 67 (Transfer of title).
|
66.4 |
Failure to pay Termination Sum at all or within a given period
|
67 |
Application of proceeds
|
67.1 |
Partial payments
|
(a) |
If the Lessor receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Operative Documents, the Lessor shall apply that payment towards the obligations of that Obligor under the
Operative Documents in the following order:
|
(i) |
first, in or towards payment pro rata of any unpaid amount owing to any Creditor Party under the Operative Documents (other than as provided in paragraphs (a)(ii) and (a)(iii) below);
|
(ii) |
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under the Operative Documents; and
|
(iii) |
thirdly, in or towards payment pro rata of any principal due but unpaid under this Charter.
|
67.2 |
Currency Conversion
|
(a) |
For the purpose of, or pending the discharge of, any of the Outstanding Indebtedness the Lessor may convert any moneys received or recovered by the Lessor from one currency to another, at the spot rate at which the Lessor is able to
purchase the currency in which the Outstanding Indebtedness are due with the amount received.
|
(b) |
The obligations of any Relevant Party 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.
|
67.3 |
Permitted Deductions
|
68 |
Transfer of title
|
(a) |
irrevocably and unconditionally procure the release of the Mortgage and all other Liens created by the Lessor on the Vessel and the other security created pursuant to the Operative Documents in relation to the Vessel and this Charter
(and if they relate to both the Vessel and the Associated Vessel, and/or to both this Charter and the Associated Charter, only insofar as they relate to the Vessel and this Charter);
|
(b) |
transfer all its right, title and interest in the Vessel to the Lessee or its nominee on the terms set out in paragraph (b) of Clause 65(b);
|
(c) |
at the Lessee’s expense, execute in favour of, and deliver to, the Lessee:
|
(i) |
a bill of sale in respect of the Vessel conveying the same title as was transferred to the Lessor pursuant to the Memorandum of Agreement; and
|
(ii) |
any further documentation required by the Flag State so as to enable the Lessee to register title over the Vessel in its name; and
|
(d) |
transfer to the Lessee or its nominee the benefit of all Vessel rights which it then holds.
|
69 |
Substitute Performance
|
69.1 |
Lessor’s right
|
(a) |
If the Lessee fails to:
|
(i) |
do, or cause to be done, anything which it is obliged to do, or cause to be done, under any of the Operative Documents; or
|
(ii) |
make any payment which it is obliged to make under any of the Operative Documents (other than a payment to the Lessor),
|
(b) |
The Lessee shall not cease to be in breach of any of its obligations under any of the Operative Documents by reason of anything done, or caused to be done, or any payment made, or caused to be made, by the Lessor pursuant to paragraph
(a) above.
|
69.2 |
Costs
|
(a) |
pay to the Lessor all reasonable and duly documented expenses incurred by the Lessor in connection with its doing, or causing to be done, anything pursuant to paragraph (a) of Clause 69.1 (Lessor’s
right); and
|
(b) |
reimburse the Lessor for any such documented payment made, or caused to be made, by the Lessor together with interest at the Default Rate for the period starting on (and including) the date on which the demand was given by the Lessor
and ending on (but excluding) the date on which the same is paid or reimbursed to the Lessor.
|
70 |
Further Assurances
|
(a) |
establish, maintain and protect the rights and remedies of the Lessor or the Lessee; and
|
(b) |
carry out and effect the intent and purpose of the Operative Documents.
|
71 |
Assignment
|
(a) |
Except in accordance with the terms of the Operative Documents, no Party may assign or transfer any of its rights or obligations under this Charter without the prior written consent of the other Party.
|
(b) |
The Lessee hereby consents to any assignment and/or transfer by the Lessor and/or the Security Trustee of any of its rights under this Charter and under the other Operative Documents to the Security Agent (or any other Finance Party)
pursuant to the Finance Documents and to the exercise of any of the rights of the Security Agent (or any other Finance Party).
|
(c) |
Subject to paragraph (e) below, the Lessee further hereby consents to any assignment by the Lessor of any of its rights and/or transfer of any of its obligations under this Charter to any Affiliate of the Lessor provided that (i) any
such assignment or transfer shall not result in any increased cost or liability for the Lessee under this Charter as a result of circumstances existing at the time of such assignment or transfer (as applicable) and (ii) the Lessor shall
promptly notify the Lessee of such assignment and/or transfer.
|
(d) |
Subject to paragraph (e) below, the Lessor may, with the prior written consent of the Lessee (such consent not to be unreasonably withheld or delayed), assign any of its rights and/or transfer any of its obligations under this Charter
and/or under any other Operative Document to another person, provided that (i) any such assignment or transfer shall not result in any increased cost or liability for the Lessee under this Charter as a result of circumstances existing at
the time of such assignment or transfer (as applicable) and (ii) the Lessor shall promptly notify the Lessee of such assignment and/or transfer.
|
(e) |
At any time after the occurrence of a Termination Event, the Lessor may assign any of its rights and/or transfer any of its obligations under any Operative Document to any person without the consent of, and without notice to, the
Lessee.
|
72 |
Disclosure of Information
|
(a) |
the financial details of, or the transactions contemplated by, the Operative Documents; or
|
(b) |
any information provided pursuant to any of the Operative Documents,
|
(i) |
to any person to the extent required for the purpose of any litigation, arbitration or regulatory proceedings or procedure;
|
(ii) |
to any person (including but not limited to any investor and potential investor of the Relevant Party or any party entitled under the Operative Documents or Finance Document) to whom, and to the extent
that, information is required to be disclosed by any applicable law, regulation, decree or rule of any jurisdiction, governmental order or stock exchange and/or securities and exchange
commission (including, but not limited to, the US Securities and Exchange Commission Rule or the Nasdaq Rules);
|
(iii) |
to any Governmental Agency;
|
(iv) |
to the Finance Parties, to the Creditor Parties or any other party to any of the Operative Documents;
|
(v) |
to the auditors, legal or insurance advisors, underwriters or brokers or any professional service provider of the Lessor, the Lessee or of any of the persons listed in paragraph (iv) above who shall be instructed to maintain the
confidentiality of any information supplied to them;
|
(vi) |
to the Lessor Account Bank or the Account Bank;
|
(vii) |
to any employee, officer or shareholder of the Lessor, any other Creditor Party, the Lessee or any Relevant Party; or
|
(viii) |
in any manner contemplated by any of the Operative Documents.
|
73 |
Notices
|
73.1 |
Communications in writing
|
73.2 |
Addresses
|
(a) |
If to the Lessor at:
|
(b) |
If to the Lessee at:
|
73.3 |
Delivery
|
(a) |
if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or
|
(b) |
if by way of email, if it complies with the rules under Clause 73.4 (Electronic communication),
|
73.4 |
Electronic communication
|
(a) |
Any communication to be made between the Parties under or in connection with this Charter may be made by electronic mail or other electronic means, and the Parties hereby agree:
|
(i) |
that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(ii) |
to notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(iii) |
to notify each other of any change to their address or any other such information supplied by them.
|
(b) |
Any electronic communication made by one Party to another Party will be effective when it is sent by the sender Party unless the sender Party receives a message indicating failed delivery.
|
(c) |
A Party shall notify the other Party promptly upon becoming aware that its electronic mail system or other electronic means of communication cannot be used due to technical failure (and that failure is or is likely to be continuing for
more than 24 hours). Until that Party has notified the other Party that the failure has been remedied, all notices between the Parties shall be sent by letter in accordance with this Clause 73.
|
73.5 |
English language
|
(a) |
Any notice given under or in connection with this Charter must be in English.
|
(b) |
All other documents provided under or in connection with this Charter must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Lessor accompanied by a certified (by an attorney-at-law) English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or
other official document.
|
74 |
Partial Invalidity
|
75 |
Remedies and Waivers
|
76 |
Amendments and Waivers
|
77 |
Contractual Recognition of Bail-In
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Operative Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
(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;
|
(b) |
in relation to the United Kingdom, the UK Bail-In Legislation; and
|
(c) |
in relation to any other state other than such an EEA Member Country and 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.
|
(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 other than the UK 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, 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.
|
78 |
Counterparts
|
79 |
Time of the Essence
|
80 |
Governing Law
|
81 |
Survival of Terms
|
82 |
Enforcement
|
82.1 |
Jurisdiction of English courts
|
(a) |
Subject to paragraph (c) below, the courts of England and Wales have exclusive jurisdiction to settle any dispute arising out of or in connection with this Charter (including any dispute relating to any non-contractual obligation
arising from or in connection with this Charter and any dispute regarding the existence, validity or termination of this Charter) (a “Dispute”).
|
(b) |
The parties to this Charter agree that the courts of England and Wales are the most appropriate and convenient courts to settle Disputes and accordingly no party to this Charter will argue to the contrary.
|
(c) |
This Clause 82.1 is for the benefit of the Lessor only. As a result, the Lessor shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lessor may
take concurrent proceedings in any number of jurisdictions.
|
82.2 |
Appointment of process agent
|
82.3 |
Waiver of immunities
|
(a) |
suit;
|
(b) |
jurisdiction of any court;
|
(c) |
relief by way of injunction or order for specific performance or recovery of property;
|
(d) |
attachment of its assets (whether before or after judgment); and
|
(e) |
execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it
will not claim any immunity in any such proceedings),
|
1 |
Relevant Parties
|
(a) |
A copy, certified as true copy by a director or an officer of each Relevant Party (other than a Third Party Manager) and each Subordinated Creditor, of the constitutional documents of each such Relevant Party and each Subordinated
Creditor and its register of directors, register of members and register of mortgages and charges.
|
(b) |
A copy, certified as true copy by a director or an officer of each Relevant Party (other than a Third Party Manager) and each Subordinated Creditor, of a resolution of the board of directors or a unanimous written resolution of the
board of directors of each such Relevant Party and each Subordinated Creditor:
|
(i) |
approving the terms of, and the transactions contemplated by, the Operative Documents to which it is a party and resolving that it executes, delivers and performs the Operative Documents to which it is a party;
|
(ii) |
authorising a specified person or persons to execute the Operative Documents to which it is a party on its behalf;
|
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Operative Documents to which it is a party; and
|
(iv) |
in the case of the Guarantor or any other Relevant Party (other than a Third Party Manager) providing third party security, resolving that it is in its best interests to enter into the transactions contemplated by the Operative
Documents to which it is a party.
|
(c) |
A certificate of the Guarantor and the Associated Lessee (signed by a director) confirming that guaranteeing or securing, as appropriate, the obligations of any Relevant Party (other than a Third Party Manager) under the Operative
Documents to which such Relevant Party is a party, would not cause any borrowing, guarantee, security or similar limit binding on any such Relevant Party to be exceeded.
|
(d) |
If relevant, a copy, certified as true copy by a director or an officer of each Relevant Party (other than a Third Party Manager), of a resolutions signed by all the holders of the issued shares in each such Relevant Party (other than
the Guarantor), approving the terms of, and the transactions contemplated by, the Operative Documents to which such Relevant Party is a party.
|
(e) |
If relevant, a copy, certified as a true copy by a director or an officer of each Relevant Party (other than a Third Party Manager) and each Subordinated Creditor, of a power of attorney of each Relevant Party and each Subordinated
Creditor.
|
(f) |
A certificate of an authorised signatory of each Relevant Party (other than a Third Party Manager) and each Subordinated Creditor certifying that each copy document relating to it specified in this Schedule 1 is correct, complete and
in full force and effect as at a date no earlier than the date of this Charter.
|
2 |
Operative Documents
|
3 |
Legal Opinions
|
(a) |
A draft legal opinion in relation to English law from Norton Rose Fulbright Greece satisfactory to the Lessor.
|
(b) |
A draft legal opinion in relation to Marshall Islands law from Hill Dickinson International satisfactory to the Lessor.
|
(c) |
Draft of any other legal opinion satisfactory to the Lessor as required by the Lessor.
|
4 |
“Know your customer” information
|
5 |
Copies of documents
|
6 |
Other documents and evidence
|
1 |
Corporate documents
|
2 |
Operative Documents
|
3 |
Other documents and evidence
|
(a) |
Copies, certified as true copies by a director of the Lessee, of all documents which the Lessor may reasonably require evidencing that all Authorisations with respect to or in connection with the registration of the Vessel under the
laws of the Flag State have been taken or obtained.
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Lessor considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Operative
Document or for the validity and enforceability of any Operative Document.
|
(c) |
Evidence satisfactory to the Lessor that the Operating Account has been opened with the Account Bank and that the amount of $350,000 has been deposited in the Operating Account (or that the Lessee and the Lessor
have agreed that such amount will be remitted by the Lessor to the Operating Account as part of the payment of the Purchase Price to the Lessee).
|
(d) |
Documentary evidence showing that the Lessee is a wholly owned direct Subsidiary of the Guarantor.
|
(e) |
Documentary evidence that:
|
(i) |
prior to Delivery, there will be no Lien of any kind whatsoever on the Vessel, her earnings or insurance; and
|
(ii) |
the required insurances for the Vessel with effect from the Delivery Date have been arranged through acceptable brokers and/or with acceptable underwriters.
|
4 |
Insurance
|
5 |
Fees
|
6 |
Manager
|
7 |
Valuation Reports
|
8 |
Legal Opinion
|
(a) |
A draft legal opinion in relation to English law from Norton Rose Fulbright Greece satisfactory to the Lessor.
|
(b) |
A draft legal opinion in relation to Marshall Islands law from Hill Dickinson International satisfactory to the Lessor.
|
(c) |
A draft legal opinion in relation to German law from Norton Rose Fulbright Germany satisfactory to the Lessor.
|
(d) |
Draft of any other legal opinion satisfactory to the Lessor as required by the Lessor.
|
1 |
Vessel requirements
|
(a) |
An original of the Bills of Sale and an original Protocol of Delivery and Acceptance, as evidence that the Vessel has been delivered to, and accepted by, the Lessor under the Memorandum of Agreement.
|
(b) |
An original Acceptance Certificate.
|
(c) |
Evidence that the Vessel:
|
(i) |
is (or will be, simultaneously with the release of the Purchase Price in accordance with clause 4.2 (Payment) of the Memorandum of Agreement) registered in the name of the Lessor under the laws
of the Flag State free of Liens;
|
(ii) |
is classed in accordance with Clause 56.10 (Maintenance of class; compliance with Authorisations);
|
(iii) |
is insured in accordance with the provisions of Clause 58 (Insurance), and all requirements of Clause 58 (Insurance) in respect of such insurance have
been complied with;
|
(iv) |
is in possession of (or evidence satisfactory to the Lessor that the Lessee has duly applied to the relevant authorities for the issuance of) a valid International Air Pollution Prevention Certificate (IAPPC) under Annex VI
(Regulations for the Prevention of Air Pollution from Ships) to MARPOL;
|
(v) |
is in possession of (or evidence satisfactory to the Lessor that the Lessee has duly applied to the relevant authorities for the issuance of) a valid Safety Management Certificate under the ISM Code and a valid International Ship
Security (ISS) Certificate; and
|
(vi) |
is in possession of (or evidence satisfactory to the Lessor that the Lessee has duly applied to the relevant authorities for the issuance of) a certificate issued pursuant to Article 7 of the International Convention on Civil Liability
for Bunker Oil Pollution Damage 2001.
|
2 |
Insurance
|
3 |
Legal Opinions
|
(a) |
A draft legal opinion in relation to English law from Norton Rose Fulbright Greece satisfactory to the Lessor.
|
(b) |
A legal opinion in relation to Marshall Islands law from Hill Dickinson International satisfactory to the Lessor.
|
(c) |
Any other legal opinion satisfactory to the Lessor as required by the Lessor.
|
1 |
We refer to the Charter. This is the Acceptance Certificate. Terms defined in the Charter shall have the same meaning in this Acceptance Certificate.
|
2 |
We confirm that today as at [•] hours ([•] time), is the Delivery Date.
|
3 |
We further confirm that, as at the date hereof:
|
(a) |
the Purchase Price is $[•];
|
(b) |
the Purchase Obligation Price is [•] and any other amount payable to the Lessee in accordance with Clause 64.3 (Purchase Obligation);
|
(c) |
the Fixed Rent payable by the Lessee on each of the 60 Payment Dates is, $[●]; and
|
(d) |
the Balloon Rental payable on the last Payment Date is $[•].
|
4 |
The Lessee further confirms that:
|
(a) |
the Vessel was duly accepted by the Lessee in accordance with, and subject to the provisions of, the Charter. The execution and delivery of this Acceptance Certificate confirms the acceptance of the Vessel by the Lessee for all
purposes of the Charter;
|
(b) |
the Lessee became obliged to pay to the Lessor the amounts provided for in the Charter with respect to the Vessel;
|
(c) |
the Vessel is insured in accordance with the Charter;
|
(d) |
the representations and warranties contained in Clause 51.1 (Lessee representations) of the Charter are true by reference to the facts and circumstances existing at the date of this Acceptance
Certificate;
|
(e) |
[there has been affixed to the Vessel the notice required by Clause 57.5 (Copy of Mortgage) of the Charter;] and
|
(f) |
no Potential Termination Event or Termination Event has occurred and is continuing.
|
The Lessor
|
The Lessee
|
For and on behalf of
|
For and on behalf of
|
NML Oasea LLC
|
Oasea Maritime Co.
|
By:
|
By:
|
|
Name:
|
Name:
|
|
|
Title:
|
Title:
|
|
The Lessor
|
/s/ Athanasios Voudris
|
|
For and on behalf of
|
)
|
|
NML OASEA LLC
|
)
|
Attorney-in-fact
|
and SIGNED by
|
)
|
ATHANASIOS VOUDRIS
|
as attorney-in-fact
|
)
|
The Lessee
|
/s/ Stavros Gyftakis
|
|
EXECUTED as a DEED
|
)
|
|
for and on behalf of
|
)
|
Attorney-in-fact
|
OASEA MARITIME CO.
|
)
|
|
and SIGNED by Stavros Gyftakis
|
)
|
|
as attorney-in-fact
|
)
|
CONTENTS
|
||
Clause
|
Page
|
|
1
|
Definitions and Interpretation
|
1
|
2
|
Guarantee
|
2
|
3
|
Representations and Warranties
|
4
|
4
|
Undertakings
|
8
|
5
|
Payments, calculations and interest
|
13
|
6
|
Expenses
|
13
|
7
|
Currency Indemnity
|
13
|
8
|
Notices
|
14
|
9
|
Assignments
|
15
|
10
|
Miscellaneous
|
16
|
11
|
Law and Jurisdiction
|
16
|
(1) |
UNITED MARITIME CORPORATION, a corporation organised and existing under the laws of the Republic of the Marshall Islands with its registered address at
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “Guarantor”); and
|
(2) |
NML TRUSTEE LLC a limited liability company formed and existing under the laws of the Republic of the Marshall Islands having its registered address at Trust Company Complex, Ajeltake Road Island,
Majuro, Marshall Islands MH 96960 as security trustee for the Creditor Parties (as such term is defined below) (the Security Trustee).
|
(A) |
NML OASEA LLC (the “Lessor”) is the owner of the 82,217 dwt Kamsarmax bulk carrier vessel Oasea registered under the laws and flag of the Republic of the
Marshall Islands with IMO No. 9494101 on the Delivery Date (the “Vessel”).
|
(B) |
By a bareboat charterparty dated 31 March 2023 made between the Lessor and Oasea Maritime Co., a corporation organised and existing under the laws of the Republic of the Marshall Islands, having its registered address at Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “Lessee”), as the same may from time to time be amended, varied or supplemented (together the “Charter”), the Lessor has agreed to let and the Lessee has agreed to take the Vessel on bareboat charter upon the terms therein described.
|
(C) |
By a security trust dated 31 March 2023 made between inter alios, the Guarantor, the Lessor, NML Cretansea LLC, the Lessee, Seanergy Shipmanagement Corp. and the Security Trustee (“Security Trust Deed”),
the Lessor has appointed the Security Trustee to hold the Secured Property (as defined in the Security Trust Deed) on trust for the benefit of the Creditor Parties, including the Lessor.
|
(D) |
It is a condition precedent to, among others, the Lessor making or continuing to make the Vessel available to the Lessee pursuant to the terms of the Charter that the Guarantor shall execute and deliver to the Security Trustee this
Guarantee.
|
1 |
Definitions and Interpretation
|
1.1 |
Expressions defined in the Charter shall, unless the context otherwise requires, have the same meanings when used in this Guarantee.
|
1.2 |
In this Guarantee, unless there is something in the subject or context inconsistent therewith, the following expressions shall have the following meanings:
|
1.3 |
In this Guarantee:
|
(a) |
clause headings are inserted for ease of reference only and shall not affect the construction of this Guarantee and unless otherwise specified, all references to Clauses and Schedules are to be construed as references to clauses and
schedules of this Guarantee;
|
(b) |
unless the context otherwise requires, words importing the plural include the singular and vice versa, and words importing a gender include every gender;
|
(c) |
references to persons include any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(d) |
references to assets include present and future properties, revenues and rights of every description;
|
(e) |
references to any document are to be construed as references to such document as amended, novated, supplemented, extended or restated from time to time; and
|
(f) |
references to any enactment include re-enactments, amendments and extensions thereof.
|
2 |
Guarantee
|
2.1 |
The Guarantor hereby irrevocably and unconditionally:
|
(a) |
guarantees to the Security Trustee the due and punctual performance by each Relevant Party of all its obligations, duties and liabilities under or in connection with the Operative Documents to which it is a party, payment on the due date
of all sums payable now or in the future to the Creditor Parties by each Relevant Party thereunder or in connection therewith (including, without limitation, any amount payable by way of liquidated and/or unliquidated damages for breach of
any of the terms and conditions of the Operative Documents) when and as the same shall become due or as the case may be, liable, for the performance by each Relevant Party according to the terms of the Operative Documents to which it is a
party;
|
(b) |
undertakes with the Security Trustee that, if and whenever any Relevant Party does not pay any amount when due under or in connection with any Operative Document, it shall immediately on demand pay that
amount as if it was the principal obligor (taking into account any taken grace period for such payment before it has become due as and if it may be applicable under the terms of the Operative Documents);
|
(c) |
undertakes with the Security Trustee that if and whenever any Relevant Party shall be in default in the performance of any of its obligations whatsoever under or in connection with the Operative Documents to which it is a party, the
Guarantor will perform such obligations on written demand; and
|
(d) |
undertakes with the Security Trustee that if any obligation under an Operative Document is or becomes unenforceable, invalid or illegal it will, as an independent and primary obligation, indemnify the Creditor Parties immediately on
demand against any cost, loss or liability it incurs as a result of any Relevant Party not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it 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 2.1 if the amount claimed had been recoverable on the basis of this Guarantee.
|
2.2 |
It is declared and agreed that:
|
(a) |
this Guarantee shall be held by the Security Trustee as a continuing security and shall not be satisfied by any intermediate payment or satisfaction of any part of the moneys and liabilities hereby guaranteed;
|
(b) |
the security so created shall be in addition to and shall not in any way be prejudiced or affected by any other security given in respect of the Operative Documents;
|
(c) |
the Security Trustee shall not be bound to enforce the Operative Documents provided it must serve a written demand on the Lessee and the Associated Lessee for payment under the Charter and the Associated Charter, respectively, before
enforcing its rights under this Guarantee;
|
(d) |
no delay or omission on the part of the Security Trustee in exercising any right, power or remedy under this Guarantee shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise
of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights powers and remedies provided in this Guarantee are cumulative and not exclusive of any rights, powers
and remedies provided by law and may be exercised from time to time and as often as the Security Trustee may deem expedient; and
|
(e) |
any waiver by the Security Trustee of any terms of this Guarantee or any consent given by the Security Trustee under this Guarantee shall only be effective if given in writing and then only for the purpose and upon the terms for which it
is given.
|
2.3 |
Any settlement or discharge under this Guarantee between the Security Trustee and the Guarantor shall be conditional upon no security or payment to the Security Trustee by any Relevant Party or any other person being avoided or set aside
or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency or liquidation for the time being in force, and if such condition is not satisfied, the Security Trustee shall be entitled to
recover from the Guarantor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.
|
2.4 |
The obligations of the Guarantor under this Guarantee shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to release or otherwise exonerate the Guarantor from its obligations hereunder
in whole or in part, including without limitation, and whether or not known to or discoverable by the Guarantor, the Lessee any other Relevant Party, the Lessor, the Security Trustee, any other Creditor Party or any other person:
|
(a) |
any time or waiver granted to or composition with any Relevant Party or any other person; or
|
(b) |
the release of any Relevant Party or any other person under the terms of any composition or arrangement with any creditor of any Relevant Party; or
|
(c) |
the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against any Relevant Party or any other person; or
|
(d) |
any legal limitation, disability, incapacity or other circumstances relating to any Relevant Party or any other person; or
|
(e) |
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of any Operative Document or any
other document or security; or
|
(f) |
the dissolution, liquidation, amalgamation, reconstruction, reorganisation or similar proceedings of any Relevant Party or any other person; or
|
(g) |
the unenforceability or invalidity of any obligations of any Relevant Party or any other person under the Operative Documents or any other document or security.
|
2.5 |
Until all amounts which may be or become payable by any Relevant Party under or in connection with the Operative Documents have been irrevocably paid in full, the Guarantor will not, without the prior written consent of the Security
Trustee , exercise any rights which it may have by reason of performance by it of its obligations under the Operative Documents or by reason of any amount being payable, or liability arising, under this Guarantee:
|
(a) |
to be indemnified by any Relevant Party;
|
(b) |
to claim any contribution from any other guarantor of obligations of any Relevant Party under the Operative Documents;
|
(c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Creditor Parties under the Operative Documents or of any other guarantee or security taken pursuant to, or in connection with,
the Operative Documents by the Creditor Parties;
|
(d) |
to bring legal or other proceedings for an order requiring any Relevant Party to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 2.1;
|
(e) |
to exercise any right of set-off against any Relevant Party; and
|
(f) |
to claim or prove as a creditor of any Relevant Party in competition with any Creditor Party.
|
2.6 |
Until all moneys and liabilities hereby guaranteed have been unconditionally and irrevocably paid in full to the satisfaction of the Security Trustee and, for this purpose, the Security Trustee may keep in a separate account for as long
as it may think fit, any moneys received, recovered or realised under this Guarantee or under any other guarantee, security or agreement relating in whole or in part to the moneys and liabilities hereby guaranteed without being under any
intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
|
2.7 |
The Guarantor waives any right it may have of first requiring the Security Trustee or any other Creditor 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 before claiming from the Guarantor under this Guarantee. This waiver applies irrespective of any law or any provision of any document to the contrary.
|
3 |
Representations and Warranties
|
3.1 |
The Guarantor hereby represents and warrants to the Security Trustee as at the date of this Guarantee that:
|
(a) |
Status
|
(i) |
it is a corporation, duly incorporated, validly existing and in good standing under the laws of the Republic of the Marshall Islands; and
|
(ii) |
it has the power and authority to own its assets and carry on its business as it is now being conducted.
|
(b) |
Binding obligations
|
(c) |
Non-conflict with other obligations
|
(i) |
any law or regulation applicable to it;
|
(ii) |
its constitutional documents; or
|
(iii) |
any agreement or instrument binding upon it or any of its assets,
|
(d) |
Power and authority
|
(i) |
it has the power to enter into, perform and deliver and comply with its obligations under, and has taken all necessary action to authorise its entry into, performance and delivery of, and compliance with, the Operative Documents to which
it is a party and the transactions contemplated by those documents and to create the Liens expressed to be created by the Security Documents to which it is or will be a party; and
|
(ii) |
no limitation on its powers to borrow, create security or give guarantees will be exceeded as a result of any transaction under, or the entry into of, any Operative Document to which it is, or is to be, a party;
|
(e) |
Validity and admissibility in evidence
|
(i) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in, the Operative Documents to which it is a party;
|
(ii) |
to make the Operative Documents to which it is a party admissible in evidence in its jurisdiction of incorporation;
|
(iii) |
for it to carry on its business; and
|
(iv) |
to enable it to create the Liens to be created by it under any Operative Document to which it is a party and to ensure that such Lien has the priority and ranking it is expressed to have,
|
(f) |
Governing law and enforcement
|
(i) |
the choice of English law as the governing law of the Operative Documents to which it is a party will be recognised and enforced in its jurisdiction of incorporation; and
|
(ii) |
any judgment or arbitration award obtained in England in relation to an Operative Document to which it is a party will be recognised and enforced in its jurisdiction of incorporation;
|
(g) |
Place of business
|
(i) |
it has not established a place of business in England; and
|
(ii) |
its centre of main interest (as that term is used in Article 3(1) for the purposes of the Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the Regulation)) is situated
in Greece and it has no “establishment” (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
|
(h) |
No misleading information
|
(i) |
all information provided by it for the purposes of any Operative Document to which it is a party was true, complete 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;
|
(ii) |
any financial projections provided by it or on its behalf and delivered to the Security Trustee in connection with this Guarantee or any other Operative Document have been prepared on the basis of recent historical information and on the
basis of reasonable assumptions; and
|
(iii) |
nothing has occurred or been omitted from the information so provided and no information has been given by it or withheld that results in any such information provided by it or on its behalf being untrue or misleading in any material
respect;
|
(i) |
Financial statements
|
(i) |
the Group’s financial statements most recently supplied to the Security Trustee under any Operative Document were prepared in accordance with GAAP consistently applied save to the extent expressly disclosed
in such financial statements;
|
(ii) |
the Group’s financial statements most recently supplied to the Security Trustee under any Operative Document give a true and fair view and represent its financial condition and operations as at the end of the
relevant financial year save to the extent expressly disclosed in such financial statements; and
|
(iii) |
there has been no material adverse change in the Group’s business or financial condition since the date of the Original Financial Statements;
|
(j) |
Pari passu ranking
|
(i) |
each Operative Document to which it is a party creates (or, once entered into, will create) in favour of the Security Trustee the security which it is expressed to create with the ranking and priority it is expressed to have; and
|
(ii) |
without limiting paragraph (i) above, its payment obligations under each Operative Document 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;
|
(k) |
No insolvency
|
(l) |
Deduction of Tax
|
(m) |
No filing or stamp taxes
|
(n) |
No Potential Termination Event
|
(i) |
No Potential Termination Event or Termination Event is continuing or might reasonably be expected to result from the entry into or performance of, or the transactions contemplated by, the Operative Documents to which it is a party; and
|
(ii) |
no other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject which would have a Material Adverse Effect;
|
(o) |
No proceedings pending or threatened
|
(p) |
Authorised signatures
|
(q) |
No immunity
|
(r) |
Environmental Authorisations
|
(s) |
Environmental provisions
|
(i) |
all applicable Environmental Laws and Environmental Authorisations relating to the Vessel and her operation and management have been complied with;
|
(ii) |
no Environmental Claim has been made or threatened against the Lessee or any Manager in connection with the Vessel; and
|
(iii) |
no Environmental Incident has occurred;
|
(t) |
Liens
|
(u) |
Vessel condition
|
(v) |
Tax compliance
|
(w) |
Disclosure of material facts
|
3.2 |
Each of the representations and warranties set out in Clause 3.1 are deemed to be made by the Guarantor by reference to the facts and circumstances then existing on the Delivery Date and on each Payment Date.
|
4 |
Undertakings
|
4.1 |
Status
|
4.2 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Security Trustee of,
|
4.3 |
Compliance with laws
|
4.4 |
Performance of obligations
|
4.5 |
Pari passu
|
4.6 |
Notification of default
|
(a) |
the occurrence of any Potential Termination Event or any Termination Event; or
|
(b) |
any matter which indicates that any Potential Termination Event or any Termination Event may have occurred,
|
4.7 |
Notification of litigation
|
4.8 |
Provision of information
|
4.9 |
Change of business
|
4.10 |
Cancellation, termination and amendment of documents
|
4.11 |
Taxes
|
(a) |
file or cause to be filed all tax returns required to be filed in all jurisdictions in which it is situated or carries on business or otherwise is subject to Taxation;
|
(b) |
pay all Taxes shown to be due and payable on such returns or any assessments made against it, except to the extent these are contested in good faith and by appropriate means where such payment may be lawfully withheld and for which
adequate reserves have been established by the Guarantor taking into account the amount of Taxes payable;
|
(c) |
except as approved by the Security Trustee, maintain its residence for Tax purposes in the jurisdiction in which it is currently resident for Tax purposes and ensure that it is not resident for Tax purposes in any other jurisdiction; and
|
(d) |
promptly upon becoming aware of the same notify the Security Trustee of the imposition or the proposed levy of any taxes (by withholding or otherwise) on any payment to be made by the Guarantor under any Operative Document to which it is
a party.
|
4.12 |
Sanctions, anti-corruption law and anti-bribery law
|
(a) |
The Guarantor undertakes that it, and shall procure that each Group Member and each Relevant Party will (in the case of a Third Party Manager on a best efforts basis), comply with all Sanctions.
|
(b) |
The Guarantor shall not become a Restricted Person or act on behalf of, or as an agent of, a Restricted Person. The Guarantor shall procure that no other Group Member and no Relevant Party shall (in the case of a Third Party Manager on a
best efforts basis), become a Restricted Person or act on behalf of, or as an agent of, a Restricted Person.
|
(c) |
The Guarantor shall procure that no proceeds from any activity or dealing with a Restricted Person are credited to any bank account of any Creditor Party or any Affiliate of any Creditor Party.
|
(d) |
The Guarantor shall, and it shall procure that each Group Member and each Relevant Party will (in the case of a Third Party Manager on a best efforts basis), promptly upon becoming aware of them
supply to the Security Trustee details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.
|
(e) |
The Guarantor shall not, and it shall procure that no Group Member nor any Relevant Party will (in the case of a Third Party Manager on a best efforts basis), use any revenue or benefit derived
from any activity or dealing with a Restricted Person in discharging any obligation due or owing to the Creditor Parties or any of them.
|
(f) |
The Guarantor shall not, and it shall procure that no other Group Member nor any Relevant Party shall (in the case of a Third Party Manager on a best efforts basis), directly or indirectly, use,
lend, contribute or otherwise make available any proceeds of the Purchase Price or other transaction contemplated by this Charter or the Memorandum of Agreement for the purpose of financing any trade, business or other activities with any
Restricted Person.
|
(g) |
The Guarantor shall, and shall procure that each Relevant Party (using all reasonable endeavours to procure the respective officers and/or directors, of the relevant entity to do the same) shall, (A) comply with all Anti-Money Laundering
Laws; (B) maintain systems, controls, policies and procedures designed to promote and achieve ongoing compliance with Anti-Money Laundering Laws; and (C) in respect of the Lessee, procure that it shall not use, or permit or authorize any
person not to directly or indirectly use, the Purchase Price for any purpose that would breach any Anti-Money Laundering Laws;
|
(h) |
The Guarantor shall procure that the Lessee shall not lend, invest, contribute or otherwise make available the Purchase Price to or for any other person in a manner which would result in a violation of Anti-Money Laundering Laws.
|
(i) |
The Guarantor shall promptly notify the Security Trustee of any non-compliance by any Relevant Party (in the case of a Third Party Manager on a best efforts basis) or its respective officers,
directors, with all laws and regulations relating to Anti-Money Laundering Laws as well as provide all information (once available) in relation to its business and operations which may be relevant for the purposes of ascertaining whether
any of the aforesaid parties are in compliance with such laws.
|
4.13 |
Financial statements and Compliance Certificate
|
(a) |
as soon as the same become available, but in any event within 180 days after the end of each financial year of the Guarantor, the audited consolidated financial statements of the Group for that financial year
(the “Annual Financial Statements”); and
|
(b) |
as soon as the same become available, but in any event within 90 days after the first half of each financial year of the Guarantor, the unaudited consolidated financial statements of the Group for that
financial half year (the “Semi-Annual Financial Statements”).
|
4.14 |
Requirements as to financial statements
|
(a) |
The Guarantor shall arrange that each set of Annual Financial Statements and Semi-Annual Financial Statements shall include a profit and loss account, a balance sheet and a cashflow statement and, in
addition, that each set of Annual Financial Statements shall be audited by the Auditors.
|
(b) |
The Guarantor shall arrange that each set of financial statements delivered by it pursuant to Clause 4.13 (Financial statements and Compliance Certificate) shall:
|
(i) |
be prepared in accordance with GAAP;
|
(ii) |
fairly present, and be certified by a director of the relevant company as fairly presenting, its financial condition and operations as at the date as at which those financial statements were drawn up and, in
the case of the Annual Financial Statements, shall be accompanied by any letter addressed to the management of the relevant company by the Auditors and accompanying those Annual Financial Statements; and
|
(iii) |
in the case of Annual Financial Statements, not be the subject of any qualification in the Auditors’ opinion.
|
(c) |
The Guarantor shall ensure that each set of financial statements delivered pursuant to Clause 4.13 (Financial statements and Compliance Certificate) shall be prepared
using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements, unless, in relation to any set of financial statements, the Guarantor notifies the
Security Trustee that there has been a change in GAAP or the accounting practices and the Auditors deliver to the Security Trustee:
|
(i) |
a description of any change necessary for those financial statements to reflect the GAAP or accounting practices and reference periods upon which corresponding Original Financial Statements were prepared; and
|
(ii) |
sufficient information, in form and substance as may be reasonably required by the Security Trustee, to enable the Lessor and/or the Security Trustee to determine whether Clause 4.17 (Financial covenants) and clause 53 (Financial covenants) of the Charter have been complied with and to make an accurate comparison between
the financial position indicated in those financial statements and the Original Financial Statements.
|
(d) |
Any reference in this Guarantee to any 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.
|
4.15 |
Change of accounting period
|
4.16 |
Information: miscellaneous
|
(a) |
at the same time as they are dispatched, copies of all material documents dispatched by it to its shareholders generally (or any class of them) or its creditors generally (or any class of them);
|
(b) |
such information regarding the employment status and operating status of the Vessel as the Security Trustee may reasonably request;
|
(c) |
such further information regarding the financial condition, business and operations of the Lessee and/or the financial condition of the Guarantor, as the Security Trustee may reasonably request;
|
(d) |
such further information and records relating to the Vessel and/or the Associated Vessel and/or the Lessee as the Security Trustee may reasonably request;
|
(e) |
any notice being received from any competent authority amending, terminating or suspending or threatening to amend, terminate or suspend any Authorisation where such action (or implementing the result thereof) constitutes a Material
Adverse Effect; and
|
(f) |
upon becoming aware of them, details of any circumstances which may lead to:
|
(i) |
any Authorisation not being obtained or effected or not remaining in full force and effect (other than in accordance with its terms); or
|
(ii) |
any Authorisation not being obtained, renewed or effected when required,
|
4.17 |
Financial covenants
|
(a) |
The Guarantor shall ensure and procure that, at all times throughout the Charter Period, the Operating Account has a credit balance of no less than $350,000 (for the avoidance of doubt, not taking into
account any amount of Rent paid by the Lessee on any Payment Date).
|
(b) |
In the event that the Guarantor or any other Group Member agrees to, or grants, or agrees to grant, any financial covenants or restriction to the payment or distribution of dividends, for the benefit of, or
in favour of, any lender or creditor of any indebtedness of any Group Member (the more favourable rights), which are in any respect more
favourable to such lender or creditor than paragraph (a) of this Clause 4.17 and/or Clause 54.13 (Distributions and other payments) of the Charter are for the Lessor, the Guarantor
undertakes:
|
(i) |
to notify the Lessor within five (5) days after the granting of or any agreement to grant (as the case may be) such more favourable rights; and
|
(ii) |
within thirty (30) days after the date when such more favourable rights have been agreed or granted, to agree to, provide and grant, such more favourable rights also in favour of the Lessor under or in
connection with this Guarantee, by entering into such documentation as the Lessor shall reasonably require, immediately after its request to the Guarantor.
|
4.18 |
Subordination
|
(a) |
are subordinated in all respects to all amounts owing and which may in future become owing by the Lessee under the Operative Documents;
|
(b) |
shall not be subject to payment of interest;
|
(c) |
are and shall remain unsecured by any Lien over the whole or any part of the assets of the Lessee; and
|
(d) |
shall not be capable of becoming subject to any right of set-off or counterclaim.
|
5 |
Payments, calculations and interest
|
5.1 |
All payments to be made by the Guarantor to the Security Trustee under this Guarantee shall be made:
|
(a) |
in full, without any set-off or counterclaim and, subject as provided in Clause 48.1 (Withholding Taxes) of the Charter, free and clear of any deductions or withholdings; and
|
(b) |
in Dollars, in same day funds before 11:00 a.m. (London time) on the due date for payment, to the Payment Account or such other account as the Security Trustee may notify the Guarantor in writing at least five (5) Business Days before
the due date for payment.
|
5.2 |
Any payment which is due to be made under this Guarantee on a day which is not a Business Day shall be made on the next Business Day, unless such Business Day falls in the next calendar month or after the Expiry Date, in which case the
due date shall be the preceding Business Day.
|
5.3 |
Without prejudice to the other rights and remedies of the Security Trustee hereunder, if any amount due and payable by the Guarantor hereunder is not received by the Security Trustee on the due date for payment thereof in the manner
herein stipulated, the Guarantor shall pay interest on the same for the period starting on (and including) the due date for payment thereof and ending on (but excluding) the date on which the same is received or recovered by the Security
Trustee in full (after as well as before judgment) at the rate(s) from time to time determined under this Clause 5.3. The period between the due date for payment of any sum due and payable hereunder or thereunder and the date upon which the
obligation to pay such sum is discharged shall be divided into successive periods, the duration of which shall be selected by the Security Trustee. During each such period (as well after as before judgment) the outstanding balance of the
unpaid sum shall bear interest which shall accrue from day to day and on the basis of actual days elapsed and shall be calculated at a rate per annum which is equal to the Default Rate calculated on the basis of a year of three hundred and
sixty (360) days and actual days elapsed. Any such interest shall be due and payable when the relevant unpaid sum is paid or, if earlier, at the end of each period by reference to which it is calculated.
|
6 |
Expenses
|
7 |
Currency Indemnity
|
7.1 |
If any sum due from the Guarantor under any Operative Document to which it is a party (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:
|
(a) |
making or filing a claim or proof against the Guarantor; or
|
(b) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
7.2 |
The Guarantor waives any right it may have in any jurisdiction to pay any amount under any relevant Operative Document to which it is a party in a currency or currency unit other than that in which it is expressed to be payable
|
8 |
Notices
|
8.1 |
Communications in writing
|
8.2 |
Addresses
|
(a) |
If to the Guarantor at:
|
(b) |
If to the Security Trustee at:
|
8.3 |
Delivery
|
(a) |
if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or
|
(b) |
if by way of email, if it complies with the rules under Clause 8.4 (Electronic communication),
|
8.4 |
Electronic communication
|
(a) |
Any communication to be made between the parties to this Guarantee under or in connection with this Guarantee may be made by electronic mail or other electronic means, and the parties to this Guarantee hereby agree:
|
(i) |
that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(ii) |
to notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(iii) |
to notify each other of any change to their address or any other such information supplied by them.
|
(b) |
Any electronic communication made by one party to this Guarantee to the other party will be effective when it is sent by the sender party unless the sender party receives a message indicating failed delivery.
|
(c) |
A party to this Guarantee shall notify the other party promptly upon becoming aware that its electronic mail system or other electronic means of communication cannot be used due to technical failure (and that failure is or is likely to
be continuing for more than 24 hours). Until that party has notified the other party that the failure has been remedied, all notices between the parties to this Guarantee shall be sent by letter in accordance with this Clause 8.
|
8.5 |
English language
|
(a) |
Any notice given under or in connection with this Guarantee must be in English.
|
(b) |
All other documents provided under or in connection with this Guarantee must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Security Trustee accompanied by a certified by an attorney-at-law English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory
or other official document.
|
9 |
Assignments
|
10 |
Miscellaneous
|
10.1 |
Time shall be of the essence of this Guarantee.
|
10.2 |
If at any time anyone or more of the provisions in this Guarantee is or becomes invalid, illegal or unenforceable in any respect under any law or regulation, the validity, legality and enforceability of the remaining provisions of this
Guarantee shall not be in any way affected or impaired thereby.
|
10.3 |
The obligations of the Guarantor under this Guarantee shall remain in full force and effect until the Security Trustee shall have received all amounts due or to become due to it hereunder in accordance with the terms hereof, following
which the Security Trustee shall, at the written request and cost of the Guarantor, execute and deliver promptly to the Guarantor a discharge of this Guarantee. Without prejudice to the foregoing, the obligations of the Guarantor under
Clauses 2.3, 5.3, 6 (Expenses) and 7 (Currency Indemnity) shall survive the termination of the Charter.
|
10.4 |
If the Security Trustee considers that any amount paid or credited to it is capable of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Guarantor under this Guarantee
will continue and such amount will not be considered to have been irrevocably discharged.
|
11 |
Law and Jurisdiction
|
11.1 |
Law
|
11.2 |
Jurisdiction of English courts
|
(a) |
Subject to paragraph (c) below, the courts of England and Wales have exclusive jurisdiction to settle any dispute arising out of or in connection with this Guarantee (including any dispute relating to any non-contractual obligation
arising from or in connection with this Guarantee and any dispute regarding the existence, validity or termination of this Guarantee) (a “Dispute”).
|
(b) |
The parties to this Guarantee agree that the courts of England and Wales are the most appropriate and convenient courts to settle Disputes and accordingly no party to this Guarantee will argue to the contrary.
|
(c) |
This Clause 11.2 is for the benefit of the Security Trustee only. As a result, the Security Trustee shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by
law, the Security Trustee may take concurrent proceedings in any number of jurisdictions.
|
11.3 |
Appointment of process agent
|
11.4 |
Waiver of immunities
|
(a) |
suit;
|
(b) |
jurisdiction of any court;
|
(c) |
relief by way of injunction or order for specific performance or recovery of property;
|
(d) |
attachment of its assets (whether before or after judgment); and
|
(e) |
execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it
will not claim any immunity in any such proceedings),
|
EXECUTED as a DEED
|
)
|
||
By Stavros Gyftakis
|
)
|
/s/ Stavros Gyftakis
|
|
for and on behalf of
|
)
|
|
|
UNITED MARITIME CORPORATION
|
)
|
||
as attorney-in-fact
|
)
|
Name:
|
Maria Moschopoulou
|
Title:
|
Attorney–in-fact
|
Address:
|
154 Vouliagmenis Avenue 16674
|
Glyfada, Athens Greece
|
EXECUTED as a DEED
|
)
|
||
by
|
)
|
/s/ Athanasios Voudris
|
|
for and on behalf of
|
)
|
|
|
NML TRUSTEE LLC
|
)
|
ATHANASIOS VOUDRIS
|
|
as attorney-in-fact
|
)
|
Authorized signatory
|
Subsidiary
|
Jurisdiction of incorporation
|
|||
Sea Glorius Shipping Co.
|
Republic of the Marshall Islands
|
|||
Epanastasea Maritime Co.
|
Republic of the Marshall Islands
|
|||
Minoansea Maritime Co.
|
Republic of the Marshall Islands
|
|||
Parosea Shipping Co.
|
Republic of the Marshall Islands
|
|||
Bluesea Shipping Co.
|
Republic of the Marshall Islands
|
|||
United Management Corp.
|
Republic of the Marshall Islands
|
|||
Traders Maritime Co.
|
Republic of the Marshall Islands
|
|||
Oasea Maritime Co.
|
Republic of the Marshall Islands
|
|||
Cretansea Maritime Co.
|
Republic of the Marshall Islands
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Chrisea Maritime Co.
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Republic of the Marshall Islands
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Good Maritime Co.
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Republic of Liberia
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