CLAUSE | HEADINGS | PAGE |
1.
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PURPOSE, DEFINITIONS AND INTERPRETATION
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1
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2.
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THE LOAN
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23
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3.
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INTEREST
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26
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4.
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REPAYMENT - PREPAYMENT
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32
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5.
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PAYMENTS, TAXES AND COMPUTATION
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34
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6.
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REPRESENTATIONS AND WARRANTIES
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37
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7.
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CONDITIONS PRECEDENT
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43
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8.
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UNDERTAKINGS
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49
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9.
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EVENTS OF DEFAULT
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65
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10.
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INDEMNITIES - EXPENSES – FEES
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70
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11.
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SECURITY, APPLICATION, SET-OFF
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76
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12.
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UNLAWFULNESS, INCREASED COST AND BAIL-IN
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79
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13.
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OPERATING ACCOUNT
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81
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14.
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ASSIGNMENT, TRANSFER, PARTICIPATION, LENDING OFFICE
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83
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15.
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MISCELLANEOUS
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86
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16.
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NOTICES AND COMMUNICATIONS
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89
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17.
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LAW AND JURISDICTION
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92
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(1)
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Form of Drawdown Notice
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(2)
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Form of Insurance Letter
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(3)
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Form of Compliance Certifcate
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(1) |
ALPHA BANK S.A., a banking société anonyme incorporated in and pursuant to the laws of the Hellenic Republic with its head office at 40 Stadiou Street, Athens, Greece, acting, except as otherwise herein provided, through its office at 93 Akti Miaouli, Piraeus, Greece, as lender (hereinafter called the “Lender”, which expression shall include its successors and assigns); and
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(2) |
ARBAR SHIPPING COMPANY INC., a corporation duly 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 (the “Borrower”, which
expression shall include its successors)
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1.1 |
Amount and Purpose
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(a)
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Amount: This Agreement sets out the terms and conditions upon and subject to which it is agreed that the Lender will make available to the Borrower a secured term loan facility in the amount of up to the lesser of
(a) Twenty two million Dollars ($22,000,000) and (b) 50% of the Purchase Price (as hereinafter defined) of the Vessel, such loan facility to be made by one (1) Advance.
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(b) |
Purpose: The proceeds of the Loan shall be used for the purpose of partly financing the acquisition cost of the Vessel pursuant to the terms of the MOA.
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1.2 |
Definitions
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(a) |
the 31st day of December, 2022 or until such later date as the Lender may agree in writing; or
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(b) |
such earlier date (if any): (i) on which the whole Commitment has been advanced by the Lender to the Borrower, or (ii) on which the Commitment is reduced to zero pursuant to Clauses 3.6 (Market
disruption), 9.2 (Consequences of Default – Acceleration), 12.1 (Unlawfulness) or any other Clause of this Agreement;
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(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the
relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
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(b) |
in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation;
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(a) |
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;
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(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
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(c) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III;
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(a) |
a day (other than a Saturday or Sunday) on which banks are open for general business in Athens and Piraeus;
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(b) |
in New York; and
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(a) |
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, supplemented or restated; and
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(b) |
any other law or regulation which implements Basel III;
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(a) |
(b) |
(a) |
all losses, liabilities, costs, charges, expenses, damages and outgoings of whatever nature, (including, without limitation, Taxes, repair costs, registration fees and insurance premiums, crew wages, repatriation expenses and seamen’s
pension fund dues) suffered, incurred, charged to or paid or committed to be paid by the Lender in connection with the exercise of the powers referred to in or granted by any of the Finance Documents or otherwise payable by the Borrower in
accordance with the terms of any of the Finance Documents;
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(b) |
the expenses referred to in Clause 10.2 (Expenses); and
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(c) |
interest on all such losses, liabilities, costs, charges, expenses, damages and outgoings from, in the case of Expenses referred to in sub-paragraph (b) above, the date on which such Expenses were demanded by the Lender from the Borrower
and in all other cases, the date on which the same were suffered, incurred or paid by the Lender until the date of receipt or recovery thereof (whether before or after judgement) at the Default Rate (as conclusively certified by the Lender)
but always absent manifest error;
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(a) |
sections 1471 to 1474 of the US Internal Revenue Code of 1986 (the “Code”) or any associated regulations or other associated official guidance;
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(b) |
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates
the implementation of paragraph (a) above; or
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(c) |
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;
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(a) |
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;
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(b) |
under any loan stock, bond, note or other security issued by the debtor;
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(c) |
under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
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(d) |
under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;
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(e) |
under any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the
debtor for the net amount; or
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(f) |
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within (a) to (e) if the references to the debtor referred to the other person;
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(a) |
all policies and contracts of insurance and reinsurance, policies or contracts, including entries of the Vessel in any protection and indemnity or war risks association, effected in respect of the Vessel, its
Earnings or otherwise in relation to it whether before, on or after the date of this Agreement; and
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(b) |
all rights (including, without limitation, any and all rights or claims which the Borrower may have under or in connection with any cut-through clause relative to any reinsurance contract relating to the aforesaid
policies or contracts of insurance) and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of
insurance or entry has expired on or before the date of this Agreement;
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(a) |
either:
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(i) |
the most recent applicable Term SOFR (as of a day which is not more than three US Government Securities Business Days before the Quotation Day) for the longest period (for which Term SOFR is available) which is less than the Interest
Period of the Loan or that part of the Loan; or
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(ii) |
if no such Term SOFR is available for a period which is less than the Interest Period of the Loan or that part of the Loan, SOFR for a day which is no more than five US Government Securities Business Days (and no less than two US
Government Securities Business Days) before the Quotation Day; and
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(b) |
the most recent applicable Term SOFR (as of a day which is not more than three US Government Securities Business Days before the Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period
of the Loan or that part of the Loan;
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(a) |
either
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(i) |
the applicable Term SOFR (as of the Quotation Date) for the longest period (for which Term SOFR is available) which is less than the Interest Period of the Loan or that part of the Loan; or
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(ii) |
if no such Term SOFR is available for a period which is less than the Interest Period of the Loan or that part of the Loan, SOFR for the day which is two (2) US Government Securities Business Days before the Quotation Day; and
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(b) |
(a) |
“The International Management Code for the Safe Operation of Ships and for Pollution Prevention”, currently known or referred to as the “ISM Code”,
adopted by the Assembly of the International Maritime Organisation by Resolution A. 741(18) on 4th November, 1993 and incorporated on 19th May, 1994 into chapter IX of the International Convention for the Safety of Life at Sea 1974 (SOLAS 1974); and
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(b) |
all further resolutions, circulars, codes, guidelines, regulations and recommendations which are now or in the future issued by or on behalf of the International Maritime Organisation or any other entity with responsibility for
implementing the ISM Code, including without limitation, the “Guidelines on implementation or administering of the International Safety Management (ISM) Code by Administrations” produced by the
International Maritime Organisation pursuant to Resolution A. 788(19) adopted on 25th November, 1995;
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(a) |
the DOC and SMC issued by a classification society in all respects acceptable to the Lender in its absolute discretion pursuant to the ISM Code in relation to the Vessel within the period specified by the ISM Code;
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(b) |
all other documents and data which are relevant to the ISM SMS and its implementation and verification which the Lender may require by request; and
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(c) |
any other documents which are prepared or which are otherwise relevant to establish and maintain the Vessel’s or the Borrower’s compliance with the ISM Code which the Lender may require by request;
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(a) |
(b) |
(c) |
(a) |
Security Interests created by the Finance Documents;
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(b) |
liens for unpaid crew’s wages in accordance with usual maritime practice;
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(c) |
liens for salvage;
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(d) |
liens arising by operation of law for not more than 2 months’ prepaid hire under any charter in relation to the Vessel not prohibited by this Agreement;
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(e) |
liens for master’s disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of the
Vessel, provided such liens do not secure amounts more than 60 days overdue (unless the overdue amount is being contested in good faith by appropriate steps) and, in the case of liens for repair or maintenance, if the Vessel is put in the
possession of any person for the purpose of work being done upon her in an amount not exceeding or likely to exceed the Major Casualty Amount or in an amount exceeding or likely to exceed the Major
Casualty Amount provided in the latter case that (i) either that person has first given to the Lender and in terms satisfactory to it a written undertaking not to exercise any lien on the Vessel or her earnings for the cost of such work or (ii) the previous consent of the Lender shall have been obtained (which consent shall not be unreasonably withheld);
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(f) |
any Security Interest created in favour of a plaintiff or defendant in any action of the court or tribunal before whom such action is brought as security for costs and expenses where the Borrower is prosecuting or defending such action in good faith by appropriate steps; and
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(g) |
Security Interests arising by operation of law in respect of taxes which are not overdue for payment other than taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves
have been made;
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(a) |
the applicable Term SOFR as of the Quotation Day and for a period equal in length to the Interest Period of the Loan or that part of the Loan; or
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(b) |
as otherwise determined pursuant to Clause 3.8 (Unavailability of Term SOFR),
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(a) |
the government of the United States of America;
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(b) |
the United Nations;
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(c) |
the European Union (or the governments of any of its member states);
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(d) |
the United Kingdom;
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(e) |
the Flag State; or
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(f) |
the respective governmental institutions and agencies of any of the foregoing including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the
United States Department of State, the United States Department of Commerce and Her Majesty’s Treasury;
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(a) |
the Accounts Pledge Agreement;
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(a) |
the Approved Manager’s Undertaking;
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(b) |
the General Assignment;
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(c) |
the Mortgage;
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(d) |
the Charterparty Assignment in respect of any Assignable Charterparty;
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(e) |
the Corporate Guarantee; and
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(g) |
any other agreement or document (whether creating a Security Interest or not) that may have been or shall from time to time after the date of this Agreement be executed
to guarantee and/or secure all or any part of the Outstanding Indebtedness and/or any and all other obligations of the Borrower to the Lender pursuant to this Agreement and any other moneys from time to time owing or payable by the
Borrower under or in connection with this Agreement and/or any of the other documents referred to in this definition, as each such document may from time to time be amended and/or supplemented, and “Security Document” means any of them as the context may require;
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(a) |
a mortgage, charge (whether fixed or floating), pledge, hypothecation, assignment or any maritime or other lien or any other security interest of any kind;
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(b) |
the security rights of a plaintiff under an action in rem; and
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(c) |
any trust arrangement or security interest or other encumbrance of any kind securing any obligation of any person or any type of preferential arrangement (including without limitation title transfer and/or retention, arrest, seizure,
garnishee order (whether nisi or absolute) or any other order or judgementarrangements having a similar effect);
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(a) |
all amounts which have become due for payment by the Borrower or any other Security Party under the Finance Documents have been paid;
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(b) |
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document; and
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(c) |
neither the Borrower nor any other Security Party has any future or contingent liability under Clauses 11 (Indemnities- Expenses-Fees) or 5 (Payments, Taxes and Computation) or any other provision of this Agreement or another Finance Document;
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(a) |
actual, constructive, compromised or arranged total loss of the Vessel; or
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(b) |
the Compulsory Acquisition of the Vessel unless it is within sixty (60) days from the date of such occurrence redelivered to the full control of the Borrower; or
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(c) |
the condemnation, capture, seizure, confiscation, arrest or detention of the Vessel (other than where the same amounts to the Compulsory Acquisition of the Vessel) by any Government Entity, or by persons
acting on behalf of any Government Entity, unless the Vessel be released and restored to the Borrower from such condemnation, capture, seizure, confiscation arrest or detention within one hundred
and twenty (120) days after the occurrence thereof; and
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(d) |
the hijacking, capture, seizure or confiscation of the Vessel arising as a result of a piracy or related incident unless the Vessel be released and restored to the Borrower from such hijacking, capture, seizure or confiscation within one hundred fifty (150) days after the occurrence thereof;
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(a) |
in the case of an actual loss of the Vessel, the date on which it occurred or, if that is unknown, the date when the Vessel was last heard of;
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(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Vessel, the earliest of:
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(i) |
the date on which a notice of abandonment is given to the insurers; and
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(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower with the Vessel’s insurers in which the insurers agree to treat the Vessel as
a total loss;
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(c) |
in the case of the Compulsory Acquisition of the Vessel, on the date upon which the relevant requisition of title or other compulsory acquisition occurs;
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(d) |
in the case of, any condemnation, capture, seizure, confiscation, arrest, or detention of the Vessel (other than where the same amounts to Compulsory Acquisition of the Vessel) by any Government Entity, or
by persons acting on behalf of any Government Entity, which deprives Borrower of the use of the Vessel for more than ninety (90) days, upon the expiry of the period of ninety (90) days after the date
upon which the relevant, condemnation, capture, seizure or confiscation, arrest or detention occurred; and
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(e) |
in the case of hijacking, capture, seizure or confiscation of the Vessel arising as a result of a piracy or related incident upon the expiry of the period of one hundred fifty (150) days after the occurrence
thereof;
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(a) |
a Saturday or a Sunday; and
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(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;
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(a) |
a Borrower which is resident for tax purposes in the US; or
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(b) |
a Security Party some or all whose payments under the Finance Documents are from sources within the US for US federal income tax purposes;
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
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(b) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or Affiliate of a bank, investment firm or other financial institution, to
cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any
other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are
related to or ancillary to any of those powers; and
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(ii) |
any similar or analogous powers under that Bail-In Legislation; and
|
(c) |
in relation to any UK Bail-In Legislation:
|
(i) |
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or Affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or
any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation
that are related to or ancillary to any of those powers; and
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(ii) |
any similar or analogous powers under that UK Bail-In Legislation.
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1.3 |
Interpretation
|
(a) |
Clause headings and the table of contents are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement;
|
(b) |
subject to any specific provision of this Agreement or of any assignment and/or participation or syndication agreement of any nature whatsoever, reference to each of the parties hereto and to the other Finance Documents shall be deemed
to be reference to and/or to include, as appropriate, their respective successors and permitted assigns;
|
(c) |
where the context so admits, words in the singular include the plural and vice versa;
|
(d) |
the words “including” and “in particular” shall not be construed as limiting the generality of any foregoing words;
|
(e) |
references to (or to any specified provisions of) a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as it may from time to time be amended, restated, novated
or replaced, however fundamentally, whether before the date of this Agreement or otherwise;
|
(f) |
references to Clauses and Schedules are to be construed as references to the Clauses of, and the Schedules to, the relevant Finance Document and references to a Finance Document include all the terms of that Finance Document and any
Schedules, Annexes or Appendices thereto, which form an integral part of same;
|
(g) |
references to the opinion of the Lender or a determination or acceptance by the Lender or to documents, acts, or persons acceptable or satisfactory to the Lender or the like shall be construed as reference to opinion, determination,
acceptance or satisfaction of the Lender at the sole discretion of the Lender, and such opinion, determination, acceptance or satisfaction of the Lender shall be conclusive and binding on the Borrower;
|
(h) |
references to a “regulation” include any present or future regulation, rule, directive,
requirement, request or guideline (whether or not having the force of law) of any governmental or intergovernmental body, agency, authority, central bank or government department or any self-regulatory or other national or supra-national
authority or organisation and includes (without limitation) any Basel II Regulation or Basel III Regulation;
|
(i) |
references to any person include such person’s assignees and successors in title; and
|
(j) |
references to or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise.
|
1.4 |
Construction of certain terms
|
(a) |
(i) |
(ii) |
(iii) |
1.5 |
Same meaning
|
1.6 |
Inconsistency
|
1.7 |
Finance Documents
|
2.1 |
Commitment to lend
|
2.2 |
Drawdown Notice irrevocable
|
2.3 |
Drawdown Notice and commitment to borrow
|
2.4 |
Number of Advances agreed
|
2.5 |
Disbursement
|
2.6 |
Application of proceeds
|
2.7 |
Termination date of the Commitment
|
2.8 |
Evidence
|
2.9 |
Cancellation
|
2.10 |
No security or lien from other person
|
2.11 |
Disbursement of the Commitment to Seller’s Bank or to the Escrow Agent’s Bank (as applicable)
|
(a) |
Notwithstanding the foregoing provisions of this Clause 2, in the event that any part of the Commitment is required to be drawn down prior to the satisfaction of the requirements of Clause 7 (Conditions
precedent) and remitted to the Seller’s Bank or to the Escrow Agent’s Bank (as applicable) in accordance with the relevant clause of the MOA (both hereinafter the “Seller’s Bank”), the Lender may in its absolute discretion agree to remit such amount to the Seller’s Bank prior to the satisfaction of the
requirements of Clause 7 (Conditions precedent) expressly subject to the following conditions:
|
(i) |
such amount is remitted to the Seller’s Bank to be held by it in an account in the Lender’s name and/or to the order of the Lender or to the Escrow Agent, as applicable, to be held in a separate account which shall be operated pursuant
to the terms and conditions of an Escrow Agreement to be approved by the Lender (the “deposit account”);
|
(ii) |
the principal amount (the “deposited amount”) of such funds will only be released to the
Seller strictly in accordance with the Lender’s instructions set out in the SWIFT payment instructions or in the relevant Escrow Agreement, as applicable (together herein, the “SWIFT Instructions”) of the Lender to the Seller’s Bank (or to the Escrow Agent, as applicable);
|
(iii) |
the deposited amount so released may be used only for payment to the account of the Seller in satisfaction of the balance of the purchase price of the Vessel; and
|
(iv) |
in the event that:
|
aa) |
none of the said amount so remitted is released (whether on the expected Delivery Date or thereafter) in accordance with the SWIFT instructions or any part thereof is not so released, or
|
bb) |
the Seller’s Bank (or the Escrow Agent, as applicable) fails to remit (or to order the remittance, as applicable) the said amount and any earned interest to the Operating Account and/or any other account designated by the Lender in
accordance with the SWIFT Instructions:
|
(b) |
Without prejudice to the obligations of the Borrower to indemnify the Lender on demand, the Lender shall in good faith take reasonable and proper steps diligently to seek recovery of the deposited amount from the Seller’s Bank (or the
Escrow Agent, as applicable) (provided that prior to taking such action the Borrower shall have agreed to indemnify the Lender for all costs and expenses which may be incurred in seeking recovery of such amount, including, without
limitation, all legal fees and disbursements reasonably and properly incurred) and if the Lender shall recover any part of the deposited amount (and provided that it has previously recovered full indemnification under Clause
2.11(a)(iv)) the Lender shall, so long as no Event of Default has occurred and is continuing, pay to the Borrower the amount so recovered after subtracting any tax suffered or incurred thereon or Expenses incurred by the Lender.
|
(c) |
The Lender shall have no liability whatsoever to the Borrower or any other person for any loss caused by the Seller’s Bank’s (or the Escrow Agent’s, as applicable) failure for any reason whatsoever to remit the said amount and any earned
interest to the designated account or to comply fully in accordance with the SWIFT Instructions.
|
(d) |
Save that no Event of Default exists under this Agreement, any amounts remitted by the Seller’s Bank (or the Escrow Agent, as applicable) to the Lender and returned pursuant to this Clause 2.11 will be applied as follows, and express
authority is hereby given by the Borrower to the Lender to make such application: in case the purchase of the Vessel has been canceled or delayed these amounts shall be applied in or towards prepayment of the Loan in full, and the remaining
amount (if any) shall be freely available to the Borrower;
|
3.1 |
Calculation of interest
|
(a) |
the Margin; and
|
(b) |
the Reference Rate for that day.
|
3.2 |
Selection of Interest Period
|
(a) |
Notice: The Borrower may by notice received by the Lender not later than 10:00 a.m. (New York time) on the second Business Day before the beginning of each Interest Period specify (subject to Clause 3.3 (Determination of Interest Periods) below) whether such Interest Period shall have a duration of one (1) or three (3) months (or such other period as may be requested by the Borrower and as the Lender, in its sole
discretion, may agree to).
|
3.3 |
Determination of Interest Periods
|
(a) |
Initial Interest Period: the initial Interest Period applicable to the Loan will commence on the Drawdown Date and each subsequent Interest Period will commence forthwith upon the expiry of the preceding Interest Period;
|
(b) |
Interest Period overrunning Repayment Date(s): if any Interest Period would otherwise overrun one or more Repayment Dates, then, in the case of the last Repayment Date, such Interest Period shall end on such Repayment Date, and in
the case of any other Repayment Date or Dates the Loan shall be divided into parts so that there is one part equal to the amount(s) of the Repayment Instalment(s) due on each Repayment Date falling during that Interest Period and having an
Interest Period ending on the relevant Repayment Date and another part equal to the amount of the balance of the Loan having an Interest Period determined in accordance with Clause 3.2 (Selection of
Interest Period) and the other provisions of this Clause 3.3 and the expression “Interest Period in respect of the Loan” when used in this Agreement refers to the Interest Period in respect of the balance of the Loan;
|
(c) |
Last Interest Period: the last Interest Period in respect of the Loan will terminate on the Final Maturity Date;
|
(d) |
Failure to notify: if the Borrower fails to specify the duration of an Interest Period in accordance with the provisions of Clause 3.2 (Selection of Interest Period) and this
Clause 3.3, such Interest Period shall have a duration of three (3) months unless another period shall be agreed between the Lender and the Borrower provided, always, that such period (whether of three (3) months or of different
duration) shall comply with this Clause 3.3;
|
(e) |
Interest Period not readily available: if the Lender determines that the duration of an Interest Period specified by the Borrower in accordance with Clause 3.2 (Selection of Interest Period)
is not readily available, then that Interest Period shall have such duration as the Lender, may determine;
|
(i) |
any Interest Period which commences on the last day of a calendar month, and any Interest Period which commences on the day on which there is no numerically corresponding day in the calendar month during which such Interest Period is due
to end, shall end on the last Business Day of the calendar month during which such Interest Period is due to end; and
|
(ii) |
if the last day of an Interest Period is not a Business Day the Interest Period shall be extended until the next following Business Day unless such next following Business Day falls in the next calendar month in which case such Interest
Period shall be shortened to expire on the preceding Business Day.
|
3.4 |
Default Interest
|
(b) |
If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan or that part of the Loan:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or that part of the Loan; and
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2.00% per annum higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c)
|
Payment of accrued default interest: Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was
determined.
|
(d) |
Compounding of default interest: Any such interest which is not paid at the end of the period by reference to which it was determined shall be compounded every six (6) months and shall be payable on demand.
|
3.5 |
Notification of duration of Interest Periods and interest rate
|
3.6 |
3.7 |
Cost of funds
|
(a) |
(i)
|
the Margin; and
|
(ii) |
the rate notified by Lender to the Borrower, which expresses as a percentage rate per annum the Lender’s cost of funds relating to the Loan or the relevant part thereof.
|
(b) |
If this Clause 3.7 (Cost of funds) applies and the Lender or the Borrower so requires, the Lender and the Borrower shall enter into negotiations (for a period of not
more than 20 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(c) |
Subject to Clause 3.9 (Changes to reference rates), any substitute or alternative basis agreed pursuant to paragraph (b) above shall,
with the prior consent of all the Lender and the Borrower, be binding on all Parties.
|
(d) |
If any rate notified to the Lender under sub-paragraph (ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
(e) |
(f) |
A notice under paragraph (e) above shall be irrevocable; and on the last Business Day of the interest period set by the Lender the Borrower shall prepay (without premium or penalty) the Loan,
together with accrued interest thereon at the applicable interest rate and the balance of the Outstanding Indebtedness.
|
(g) |
The provisions of Clause 4 (Repayment-Prepayment) shall apply in relation to the prepayment made hereunder.
|
3.8 |
Unavailability of Term SOFR
|
(a) |
Interpolated Term SOFR: If no Term SOFR is available for the Interest Period of the Loan or any part of the Loan, the applicable Reference Rate shall be the
Interpolated Term SOFR for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
(b) |
Historic Term SOFR: If no Term SOFR is available for the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Term SOFR, the applicable
Reference Rate shall be the Historic Term SOFR for the Loan or that part of the Loan.
|
(c) |
Interpolated Historic Term SOFR: If paragraph (b) above applies but no Historic Term SOFR is available for the Interest Period of the Loan or any
part of the Loan, the applicable Reference Rate shall be the Interpolated Historic Term SOFR for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
(d) |
Cost of funds: If paragraph (c) above applies but it is not possible to calculate the Interpolated Historic Term SOFR, there shall be no Reference Rate for the Loan
or that part of the Loan (as applicable) and Clause 3.7 (Cost of Funds) shall apply to the Loan or that part of the Loan for that Interest Period.
|
3.9 |
Changes to Reference Rates
|
(a) |
If a Published Rate Replacement Event has occurred in relation to any Published Rate, any amendment or waiver which relates to:
|
(i)
|
providing for the use of a Replacement Reference Rate; and
|
(A) |
aligning any provision of any Finance Document to the use of that Replacement Reference Rate;
|
(B) |
enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the
purposes of this Agreement);
|
(C) |
implementing market conventions applicable to that Replacement Reference Rate;
|
(D) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or
|
(E) |
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),
|
(c)
|
In this Clause 3.9 (Changes to reference rates):
|
(a)
|
SOFR; or
|
(b)
|
Term SOFR for any Quoted Tenor.
|
(a) |
Term SOFR (all Quoted Tenors), 10 US Government Securities Business Days; and
|
(b) |
SOFR, 10 US Government Securities Business Days.
|
(a) |
the methodology, formula or other means of determining that Published Rate has, in the opinion of the Lender and the Borrower, materially changed;
|
(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,
|
(i) |
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;
|
(ii) |
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
|
(iii) |
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 Lender and the Borrower) temporary; or
|
(ii) |
that Published Rate is calculated in accordance with any such policy or arrangement for a period no less than the applicable Published Rate Contingency Period; or
|
(d) |
in the opinion of the Lender and the Borrower, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
(a) |
formally designated, nominated or recommended as the replacement for a Published Rate by:
|
(i)
|
the administrator of that Published Rate; or
|
(ii)
|
any Relevant Nominating Body,
|
(b) |
in the opinion of the Lender and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor or alternative to a Published Rate; or
|
(c) |
in the opinion of the Lender and the Borrower, an appropriate successor or alternative to a Published Rate.
|
4.1 |
Repayment
|
4.2 |
Voluntary Prepayment
|
(a) |
the Lender shall have received from the Borrower not less than seven (7) Business Days’ prior notice in writing (which shall be irrevocable) of their intention to make such prepayment and specify the account and the date on which such
prepayment is to be made;
|
(b) |
any prepayment relating to the whole of the Loan may take place only on the last day of an Interest Period;
|
(c) |
each prepayment shall be equal to One hundred thousand Dollars ($100,000) or a whole multiple thereof or the balance of the Loan;
|
(d) |
any prepayment of less than the whole of the Loan will be applied in or towards pro-rata reduction of the Balloon Instalment and the remaining Repayment Instalments;
|
(e) |
every notice of prepayment shall be effective only on actual receipt by the Lender, shall be irrevocable and shall oblige the Borrower to make such prepayment on the date specified;
|
(f) |
the Borrower have provided evidence satisfactory to the Lender that any consent required by the Borrower or any Security Party in connection with the prepayment has been obtained and remains in force, and that any regulation relevant to
this Agreement which affects the Borrower or any Security Party has been complied with;
|
(g) |
no amount prepaid may be re-borrowed; and
|
(h) |
the Borrower may not prepay the Loan or any part thereof save as expressly provided in this Agreement or as otherwise agreed by the Lender;
|
4.3 |
Mandatory Prepayment in case of Total Loss or sale or refinancing of the Vessel
|
(a) |
Total Loss of Vessel: On the Vessel becoming a Total Loss:
|
(i) |
prior to the advancing of the Commitment, the obligation of the Lender to make available the Commitment shall immediately cease and the Commitment shall be reduced to zero; or
|
(ii) |
in case the Commitment (or any part thereof) has been already advanced, the Borrower shall prepay the Outstanding Indebtedness the latest on the date falling one hundred and twenty (120) days after
the Total Loss Date or, if earlier, on the date upon which the insurance proceeds in respect of such Total Loss are or Requisition Compensation is received by the Borrower (or the Lender pursuant to the Security Documents).
|
(b) |
Sale or refinancing of the Vessel: In the event of a sale or other disposal of the Vessel, or in case of refinancing by another bank or a financial institution or if the Borrower requests the
Lender’s consent for the discharge of the Mortgage on the Vessel, the Borrower shall prepay the Outstanding Indebtedness in full on or before the date on which such refinancing is effected or the sale is completed by delivery of the
Vessel to the buyer thereof;
|
4.4 |
Amounts payable on prepayment
|
(a) |
accrued interest on the amount of the Loan to the date of such prepayment (calculated, in the case of a prepayment pursuant to Clause 3.6 (Market disruption) at a rate equal to the
aggregate of the Margin and the cost to the Lender of funding the Loan);
|
(b) |
any additional amount payable under Clause 5.3 (Gross Up);
|
(c) |
all other sums payable by the Borrower to the Lender under this Agreement or any of the other Finance Documents including, without limitation, any amounts payable under Clause 10 (Indemnities -
Expenses – Fees); and
|
5.1 |
Payments - No set-off or Counterclaims
|
5.2 |
Payments on Business Days
|
5.3 |
Gross Up
|
5.4 |
Mitigation
|
(a) |
have an adverse effect on its business, operations or financial condition on the Lender; or
|
(b) |
involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent, with any regulation of the Lender; or
|
(c) |
involve the Lender in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
5.5 |
Claw-back of Tax benefit
|
(a) |
the Lender shall not be obliged to allocate this transaction any part of a tax repayment or credit which is referable to a number of transactions;
|
(b) |
nothing in this Clause shall oblige the Lender to rearrange its tax affairs in any particular manner, to claim any type of relief, credit, allowance or deduction instead of, or in priority to, another or to make
any such claim within any particular time or to disclose any information regarding its tax affairs and computations;
|
(c) |
nothing in this Clause shall oblige the Lender to make a payment which exceeds any repayment or credit in respect of tax on account of which the Borrower has made an increased payment under this Clause;
|
(d) |
any allocation or determination made by the Lender under or in connection with this Clause shall be binding on the Borrower; and
|
(e) |
without prejudice to the generality of the foregoing, the Borrower shall not, by virtue of this Clause 5.5, be entitled to enquire about the Lender’s tax affairs.
|
5.6 |
Loan Account
|
5.7 |
Computation
|
6.1 |
Continuing representations and warranties
|
(a) |
Due Incorporation/Valid Existence: Each of the Borrower and the other corporate Security Parties is duly incorporated and validly existing and in good standing under the laws of their respective countries of incorporation, and
have power to own their respective property and assets, to carry on their respective business as the same are now being lawfully conducted and to purchase, own, finance and operate the Vessel, or, as the case may be, manage the Vessel, as
well as to undertake the obligations which such Security Party has undertaken or shall undertake pursuant to the Finance Documents and does not have a place of business in the United Kingdom or the United States of America;
|
(b) |
Due Corporate Authority: Each of the Borrower and the other corporate Security Parties has power to execute, deliver and perform its obligations under the Finance Documents and each of the
Underlying Documents to which is or is to be a party and for the Borrower to borrow the Commitment and each of the Security Parties has power to execute and deliver and perform its/his obligations under the Finance Documents to
which it/he is or is to be a party; all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same and no limitation on the powers of the Borrower to borrow will be
exceeded as a result of borrowing the Loan;
|
(c) |
No litigation etc.: no litigation or arbitration, tax claim or administrative proceeding (including action relating to any alleged or actual breach of the ISM Code and the ISPS Code in relation to sums exceeding Five hundred
thousand Dollars ($500,000) involving a potential liability of the Borrower or any other Security Party (and in the case of the Corporate Guarantor exceeding $5,000,000) is current or pending or (to its or its officers’ knowledge)
threatened against the Borrower or any other Security Party, which, if adversely determined, would have a Material Adverse Effect on any of them;
|
(d) |
No conflict with other obligations: the execution and delivery by the Borrower and each other Security Party of, the performance of its obligations under, and compliance with the provisions of, the Finance Documents and each of the Underlying Documents to which it is a party will not (i) contravene any existing applicable law, statute, rule or regulation or any judgment, decree or permit to which the Borrower or any
other Security Party is subject, (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which the Borrower or any other Security Party is a party or is subject
to or by which it or any of its property is bound, (iii) contravene or conflict with any provision of the memorandum and articles of association/articles of incorporation/by-laws/statutes or other constitutional documents of the Borrower or
any other Security Party or (iv) result in the creation or imposition of or oblige the Borrower or any other Security Party to create any Security Interest (other than a Permitted Security Interest) on any of the undertakings, assets,
rights or revenues of the Borrower or any other Security Party;
|
(e) |
Financial Condition: the financial condition of the Borrower and of the other Security Parties has not suffered any material deterioration since that condition was last disclosed to the Lender;
|
(f) |
No Immunity: neither the Borrower nor any other Security Party nor any of their respective assets are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceeding (which shall include,
without limitation, suit, attachment prior to judgement, execution or other enforcement);
|
(g) |
Shipping Company: each of the Borrower and the Approved Manager is a shipping company involved in the owning or, as the case may be, managing of ships engaged in international voyages and earning profits in free foreign currency;
|
(h) |
Licences/Authorisation: every consent, authorisation, license or approval of, or registration with or declaration to, governmental or public bodies or authorities or courts required by any Security Party to authorise, or required
by any Security Party in connection with, the execution, delivery, validity, enforceability or admissibility in evidence of each of the Finance Documents or the performance by each Security Party of its obligations under the Finance
Documents to which such Security Party is or is to be a party has been obtained or made and is in full force and effect and there has been no default in the observance of any of the conditions or restrictions (if any) imposed in, or in
connection with, any of the same so far as the Borrower is aware;
|
(i) |
Perfected Securities: the Finance Documents and each of the Underlying Documents do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the
Finance Documents):
|
(i) |
(ii) |
create legal, valid and binding Security Interests (having the priority specified in the relevant Finance Document) enforceable in accordance with their respective terms over all the assets and revenues intended
to be covered to which they, by their terms, relate, subject to any relevant insolvency laws affecting creditors’ rights generally;
|
(j) |
(i) |
(ii) |
no third party will have any Security Interests (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its
terms, relates;
|
(k) |
No Notarisation/Filing/Recording: save for the registration of the Mortgage in the appropriate shipping Registry, it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement
or any of the other Finance Documents that it or they or any other instrument be notarised, filed, recorded, registered or enrolled in any court, public office or elsewhere or that any stamp, registration or similar tax or charge be paid on
or in relation to this Agreement or the other Finance Documents;
|
(l) |
No conflict: there are no other agreements or arrangements which may adversely affect or conflict with the Finance Documents or the security thereby created;
|
(m) |
Taxes paid: the Borrower has paid all taxes applicable to, or imposed on or in relation to the Borrower, its business or the Vessel; and
|
(n) |
Valid Choice of Law: the choice of law agreed to govern this Agreement and/or any other Finance Document and the submission to the jurisdiction of the courts agreed in each of the Finance Documents are or will be, on execution of
the respective Finance Documents, valid and binding on the Borrower and any other Security Party which is or is to be a party thereto.
|
6.2 |
Initial representations and warranties
|
(a) |
Direct obligations - Pari Passu: the obligations of the Borrower under this Agreement are direct, general and unconditional obligations of the Borrower and rank at least pari passu with all other present and future unsecured and
unsubordinated Financial Indebtedness of the Borrower with the exception of any obligations which are mandatorily preferred by law;
|
(b) |
Information: all information, accounts, statements of financial position, exhibits and reports furnished by or on behalf of any Security Party to the Lender in connection with the negotiation and preparation of this Agreement and
each of the other Finance Documents are true and accurate in all material respects and not misleading, do not omit material facts and all reasonable enquiries have been made to verify the facts and statements contained therein; to the best
knowledge of the Directors/Officers or shareholders of the Borrower there are no other facts the omission of which would make any fact or statement therein misleading and, in the case of accounts and statements of financial position, they
have been prepared in accordance with generally accepted international accounting principles, standards and practices which have been consistently applied;
|
(c) |
No Event of Default: no Event of Default has occurred and is continuing;
|
(d) |
No Taxes: no Taxes are imposed by deduction, withholding or otherwise on any payment to be made by the Borrower under this Agreement and/or any other of the Finance Documents or are imposed on or by virtue of the execution or
delivery of this Agreement and/or any other of the Finance Documents or any document or instrument to be executed or delivered hereunder or thereunder. In case that any Tax exists now or will be imposed in the future, it will be borne by
the Borrower;
|
(e) |
No Default under other Financial Indebtedness: none of the Borrower and the Corporate Guarantor is in default under any agreement relating to Financial Indebtedness in relation to sums exceeding, in the case of the Borrower, Five
hundred thousand Dollars ($500,000) and in the case of the Corporate Guarantor exceeding $5,000,000, to which it is a party or by which it is or may be bound;
|
(f) |
Ownership/Flag/Seaworthiness/Class/Insurance of the Vessel: the Vessel on the Delivery Date will be:
|
(i) |
in the absolute and free from Security Interests (other than Permitted Security Interests) ownership of the Borrower who will on and after the Delivery Date be the sole legal and beneficial owner of the Vessel;
|
(ii) |
registered in the name of the Borrower through the relevant Registry of the port of registry of the Flag State under the laws and flag of the Flag State;
|
(iii) |
operationally seaworthy and in every way fit for service;
|
(iv) |
classed with a Classification Society member of IACS, which has been approved by the Lender in writing and such classification is and will be free of any overdue recommendations of such Classification Society;
|
(v) |
insured in accordance with the provisions of this Agreement and the Mortgage;
|
(vi) |
managed by the Approved Manager; and
|
(vii) |
in full compliance with the ISM and the ISPS Code;
|
(g) |
No Charter: save for any Assignable Charterparty and unless otherwise permitted in writing by the Lender, the Vessel will not on or before the Delivery Date be subject to any charter or contract nor to any agreement to enter into
any charter or contract which, if entered into after the Delivery Date would have required the consent of the Lender under any of the Finance Documents and there will not on or before the Delivery Date be any agreement or arrangement
whereby the Earnings of the Vessel may be shared with any other person;
|
(h) |
No Security Interests: neither the Vessel, nor its Earnings, Requisition Compensation or Insurances nor any other properties or rights which are, or are to be, the subject of any of the Security
Documents nor any part thereof will, on the Drawdown Date, be subject to any Security Interests other than Permitted Security Interests or otherwise permitted by the Finance Documents;
|
(i) |
Compliance with Environmental Laws and Approvals: except as may already have been disclosed by the Borrower in writing to, and acknowledged in writing by, the Lender:
|
(i) |
the Borrower and its Related Companies have complied with the provisions of all Environmental Laws;
|
(ii) |
the Borrower and its Related Companies have obtained all Environmental Approvals and are in compliance with all such Environmental Approvals; and
|
(iii) |
neither the Borrower nor any of its Related Companies have received notice of any Environmental Claim in excess of $500,000 that the Borrower or any of its Related Companies are not in compliance with any
Environmental Law or any Environmental Approval;
|
(j) |
No Environmental Claims: except as may already have been disclosed by the Borrower in writing to, and acknowledged in writing by, the Lender:
|
(i) |
there is no Environmental Claim in excess of $500,000 pending or, to the best of the Borrower’s knowledge and belief, threatened against the Borrower or the Vessel or the Borrower’s Related Companies or any other Relevant Ship; and
|
(ii) |
there has been no emission, spill, release or discharge of a Material of Environmental Concern from the Vessel or any other Relevant Ship or the Vessel owned by, managed or crewed by or chartered to the Borrower
which could give rise to an Environmental Claim in excess of $500,000;
|
(l) |
Application made for DOC and SMC: in relation to the Vessel, the DOC applicable to the Approved Manager is presently in full effect, and the Operator has applied or, as the case may be, prior to her Delivery shall apply, to the
appropriate Regulatory Agency for a DOC for itself and an SMC in respect of the Vessel to be issued pursuant to the ISM Code within any time limit required or recommended by such Regulatory Agency and that neither the Borrower nor any
Operator is aware of any reason why such application may be refused;
|
(m) |
Compliance with ISM Code: the Vessel will comply on the Delivery Date and the Operator complies with the requirements of the ISM Code and the SMC which has been or, as the case may be, shall be issued in respect of the Vessel
shall remain valid on the Delivery Date and thereafter throughout the Security Period;
|
(n) |
Compliance with ISPS Code: the Borrower on the Delivery Date shall have a valid and current ISSC in respect thereof and will comply on the Delivery Date and the Operator complies, with the requirements of the ISPS Code and the
ISSC which shall be issued in respect of the Vessel shall remain valid on the Delivery Date and thereafter throughout the Security Period;
|
(o) |
Shareholdings:
|
(i) |
all of the issued shares in the Borrower are held directly by the Parent Company (being as of the date of this Agreement the sole shareholder of the Borrower);
|
(ii) |
the Parent Company is a company listed in the Nasdaq Capital Market and the Corporate Guarantor is and will continue to be managed by the Chief Executive Officer disclosed to the Lender at the negotiation
of this Agreement ;
|
(iii) |
no change of control has been made directly or indirectly in the ownership of the Borrower as a Subsidiary of the Parent Company or the management of the Borrower or
any share therein or of the Vessel and 100% of the shares and voting rights in the Borrower will remain throughout the Security Period in the legal ownership of the Parent Company;
|
(p) |
No US Tax Obligor: (other than as disclosed to the Lender) none of the Security Parties is a US Tax Obligor;
|
(q) |
Sanctions: none of the Security Parties:
|
(i) |
(ii) |
owns or controls directly or indirectly a Sanctions Restricted Person; or
|
(iii) |
(iv) |
no proceeds of the Loan shall be made available, directly or to the knowledge of the Borrower indirectly, to or for the benefit of a Sanctions Restricted Person contrary to Sanctions or for transactions in a
Sanctions Restricted Jurisdiction nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions;
|
(r) |
Taxes paid: the Borrower has paid all taxes applicable to, or imposed on or in relation to itself, its business or the Vessel;
|
(s) |
No default under MOA: the Borrower is not in default under any of its obligations under the MOA;
|
(t) |
MOA Valid: the copy of the MOA to be delivered to the Lender shall be a true and complete copy of such document constituting valid and binding obligations of the parties thereto enforceable in accordance with its terms and no
amendments thereto or variations thereof shall have been (or will be) agreed nor shall any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable; and
|
(u) |
No Rebates: there will be no commissions, rebates premiums or other payments by or to or on account of the Borrower or any other Security Party or, to the knowledge of the Borrower, any other person in connection with the MOA
other than as shall be disclosed to the Lender by the Borrower in writing.
|
(v) |
Compliance with laws and regulations: the Borrower is in compliance in all material respects with any law or regulation applicable to it and pertaining to the labor and employment conditions, the occupational health and safety and
the public health, safety and security.
|
6.3 |
Money laundering - acting for own account
|
6.4 |
Representations Correct
|
6.5 |
Repetition of Representations and Warranties
|
(a) |
on the date of service of the Drawdown Notice;
|
(b) |
on the Drawdown Date; and
|
(c) |
on each Interest Payment Date throughout the Security Period,
|
7.1 |
Conditions precedent to the execution of this Agreement
|
(a) |
Constitutional Documents: a duly certified true copy of the Articles of Incorporation and By-Laws or the Memorandum and Articles of Association, or of any other constitutional documents, as the case may be, of each corporate
Security Party;
|
(b) |
Certificates of incumbency: a recent certificate of incumbency of each corporate Security Party issued by the appropriate authority or, as appropriate, signed by the secretary or a director thereof:
|
(i) |
certifying that each copy document relating to it referred to in paragraph (a) of this Clause 7.1 is correct, complete and in full force and effect;
|
(ii) |
setting out the names of (A) the directors and officers of that Security Party and (B) the shareholders of that Security Party (other than the Parent Company) and the proportion of shares held by each shareholder thereof; and
|
(iii) |
confirming that borrowing or guaranteeing or securing, as appropriate, the Loan would not cause any borrowing, guarantee, security or similar limit binding on that Security Party to be exceeded;
|
(c) |
Shareholding: such documentation and other evidence, including the Side Letter, as is reasonably requested by the Lender in order for the Lender to comply with all necessary “know your customer”
or similar identification procedures in relation to the transactions contemplated in the Finance Documents;
|
(d) |
Resolutions: minutes of separate meetings of (i) the directors of each corporate Security Party and (ii) the shareholders of each corporate Security Party (other than the Parent Company) at which there was approved (inter alia)
the entry into, execution, delivery and performance of this Agreement, the other Finance Documents and any other documents executed or to be executed pursuant hereto or thereto to which the relevant corporate Security Party is or is to be a
party;
|
(e) |
Powers of Attorney: the original of any power(s) of attorney and any further evidence of the due authority of any person signing this Agreement, the other Finance Documents, and any other documents executed or to be executed
pursuant hereto or thereto on behalf of any corporate person;
|
(f) |
Consents: evidence that all necessary licences, consents, permits and authorisations (including exchange control ones) have been obtained by any Security Party for the execution, delivery, validity, enforceability, admissibility
in evidence and the due performance of the respective obligations under or pursuant to this Agreement and the other Finance Documents;
|
(g) |
DOC: a copy of the DOC applicable to the Approved Manager certified as true and in effect;
|
(h) |
Other documents: any other documents or recent certificates or other evidence which would be required by the Lender in relation to each Security Party evidencing that the relevant Security Party has been properly established,
continues to exist validly and is in good standing;
|
(i) |
MOA, Management Agreement - Assignable Charterparty: a copy of each of the following documents certified as true and complete by the legal counsel of the Borrower:
|
(i) |
The MOA;
|
(ii) |
the Management Agreement evidencing that the Vessel is managed by the Approved Manager on terms acceptable to the Lender; and
|
(iii) |
any Assignable Charterparty; and
|
(j) |
Operating Account: evidence that the Operating Account has been duly opened and all mandate forms and other legal documents required for the opening of an account under any applicable law, as well as signature cards and properly
adopted authorizations have been duly delivered to and have been accepted by the compliance department of the Lender.
|
7.2 |
Conditions precedent to the making of the Commitment
|
(a) |
Conditions precedent: evidence that the conditions precedent set out in Clause 7.1 (Conditions precedent to the execution of this Agreement) remain fully
satisfied;
|
(b) |
(c) |
Finance Documents: the originals of the Accounts Pledge Agreement, Guarantee, Mortgage,
General Assignment, Approved Manager’s Undertaking, Charterparty Assignment, Side Letter, any Compliance Certificate and Insurance Letter (and of each document to be delivered by each of them) and each duly executed and where appropriate duly registered with the Registry or any other competent authority (as required);
|
(d) |
Title and no Security Interests: evidence that the Vessel is and on the Drawdown Date will be duly registered in the ownership of the Borrower with the Registry and under the laws and flag
of the Flag State free from any Security Interests save for those in favour of the Lender and otherwise as contemplated herein;
|
(e) |
Insurances: evidence in form and substance satisfactory to the Lender that the Vessel will be insured in accordance with the insurance requirements provided for in this Agreement and the Security Documents, including a MII and a MAPI, together with an opinion from insurance consultants (appointed by the Lender at the Borrower’s expense) as to the adequacy of the insurances effected or to be effected in respect of the Vessel, to be followed by full copies of cover notes, policies, certificates of entry or other contracts of insurance and irrevocable authority is hereby given to the Lender at any time at its discretion to obtain
copies of the policies, certificates of entry or other contracts of insurance from the insurers and/or obtain any information in relation to the Insurances relating to the Vessel;
|
(f) |
Insurers’ confirmations - Letters of Undertaking: all necessary confirmations by insurers of the Vessel that they will issue letters of undertaking and endorse notice of assignment and loss payable
clauses on the Insurances, in market standard form and - in the event of fleet cover - accompanied by waivers for liens for unpaid premium of other Vessel managed by the Approved Manager and
which are not subject to any mortgage in favour of the Lender;
|
(g) |
MII: the MII and the MAPI shall have been reimbursed by the Borrower as provided in Clause 10.9 (MII and MAPI costs);
|
(h) |
Access to class records: due authorisation in form and substance satisfactory to the Lender authorising the Lender to have access and/or obtain any copies of class records or other information at its discretion from the
Classification Society of the Vessel, provided however, that the Lender shall not exercise such right unless and until an Event of Default has occurred and is continuing;
|
(i) |
(j) |
(k) |
Trading certificates: copies of the trading certificates of the Vessel evidencing the same to be valid and in force;
|
(m) |
Trim and stability booklet: an extract of the trim and stability booklet certifying the lightweight of the Vessel;
|
(n) |
(o) |
ISM Code Documentation: copies of all ISM Code Documentation certified as true and complete in all material respects by the Borrower and the Approved Manager;
|
(p) |
ISPS Code compliance:
|
(ii) |
(q) |
Valuation: charter free valuation of the Vessel satisfactory to the Lender, to be obtained by the Lender, at the Borrower’s expense, made on the basis and in the manner specified in Clause
8.5(b) (Valuation of Vessel);
|
(r) |
Security Parties’ process agent: a letter from each Security Party’s agent for receipt of service of proceedings referred to in each Security Document to which the relevant Security Party is a party, accepting its appointment
under each of the relevant Security Documents;
|
(s) |
No Security Interests: evidence that no Security Interests are registered against the Vessel on her previous register;
|
(v) |
(w) |
Pledged Deposit: deposit in the Operating Account the Pledged Deposit referred to in Clause 8.1(k) (Pledged Deposit)on or prior to the Drawdown Date;
|
(x) |
Fees: evidence that the fees referred to in Clause 10.15 (Arrangement Fee) have been paid in full;
|
(y) |
Condition survey report: if the Lender so requires, a satisfactory to the Lender physical condition survey report on the Vessel together with a comprehensive record inspection from a surveyor appointed by the Lender, at the
Borrower’s expense;
|
(z) |
Financial covenants: evidence satisfactory to the Lender in the form of annual audited financial statements of the Parent Company for the period ending on December 31, 2021, including, without limitation the Compliance
Certificate, that the Parent Company complies fully with the requirements of Clause 8.10 (Financial Covenants);
|
(aa) |
Seller’s title: evidence to the full satisfaction of the Lender, proving the Seller’s title to the Vessel free of any Security Interests, debts or claims of any nature whatsoever;
|
(bb) |
Seller’s documents: duly certified copy of the Bill of Sale, the protocol of delivery and acceptance of the Vessel, as well as of all other Seller’s documents, upon her Delivery;
|
(cc) |
No Security Interests on previous register: evidence that no Security Interests are registered on Delivery against the Vessel on her previous register; and
|
(dd) |
Purchase Price paid: evidence that the purchase price of the Vessel has been (or upon her delivery will have been) paid in full in accordance with the provisions of the MOA.
|
7.3 |
No change of circumstances
|
(a) |
Representations and warranties: the representations and warranties set out in Clause 6 (Representations and warranties) and in each of the other Finance Documents are true and
correct on and as of each such time as if each was made with respect to the facts and circumstances existing at such time;
|
(b) |
No Event of Default: no Event of Default shall have occurred and be continuing or would result from the drawdown;
|
(c) |
No change of control: the Lender shall be satisfied that:
|
(i) |
the Corporate Guarantor remains listed in the NASDAQ Capital Market;
|
(ii) |
there has been no change in control directly or indirectly in the legal ownership, or management of the Borrower or any share in the Borrower or of the Vessel; and
|
(iii) |
there has been no Material Adverse Change in the financial condition of any Security Party which (change) might, in the reasonable opinion of the Lender, be detrimental to the interests of the Lender; and
|
(d) |
No Market Disruption Event: none of the circumstances contemplated by Clause 3.6 (Market disruption) has occurred and is continuing.
|
7.4 |
Know your customer and money laundering compliance
|
7.5 |
Further documents
|
7.6 |
Waiver of conditions precedent
|
8.1 |
General
|
(a) |
Notice on Material Adverse Change or Event of Default: promptly inform the Lender upon becoming aware of any occurrence which might have a Material Adverse Effect on the ability of any Security Party to perform its obligations
under any of the Finance Documents and, without limiting the generality of the foregoing, will inform the Lender of any Event of Default forthwith upon becoming aware thereof and will from time to time, if so requested by the Lender,
confirm to the Lender in writing that, save as otherwise stated in such confirmation, no Event of Default has occurred and is continuing;
|
(b) |
Notification of litigation: provide the Lender with details of any legal or administrative action relating to an amount exceeding Five hundred thousand Dollars ($500,000) involving the Borrower, the Vessel, the Earnings or the
Insurances in respect of the Vessel or the Corporate Guarantor relating to an amount exceeding Five million Dollars ($5,000,000) , as soon as such action is instituted, unless it is clear that the legal or administrative action cannot be
considered material in the context of any Finance Document, and the Borrower shall procure that all appropriate measures are taken to defend any such legal or administrative action;
|
(c) |
Consents and licenses: without prejudice to Clauses 6 (Representations and warranties) and 7 (Conditions precedent), obtain or
cause to be obtained, maintain in full force and effect and comply in all material respects with the conditions and restrictions (if any) imposed in, or in connection with, every consent, authorisation, license or approval of governmental
or public bodies or authorities or courts and do or cause to be done, all other acts and things which may from time to time be necessary or desirable under applicable law for the continued due performance of all the obligations of the
Security Parties under each of the Finance Documents and the Underlying Documents to which it is a party;
|
(d) |
Use of Loan proceeds: use the Loan exclusively for the purposes specified in Clause 1.1 (Amount and Purpose);
|
(e) |
Pari passu: ensure that its obligations under this Agreement shall, without prejudice to the provisions of this Clause 8.1, at all times rank at least pari passu with all its other present and future unsecured and unsubordinated
Financial Indebtedness with the exception of any obligations which are mandatorily preferred by law and not by contract;
|
(f) |
Financial statements:
|
(iii) |
promptly, after each request by the Lender, such further financial or other information and accounts relating to the business, undertaking, assets, liabilities, revenues, financial condition or affairs in respect
of the Borrower, the Vessel, the Parent Company, the other Security Parties and the Group as the Lender from time to time may reasonably require;
|
(g) |
Compliance Certificate: procure that the Parent Company supplies to the Lender with each set of financial statements delivered pursuant to sub-paragraph (i) of Clause 8.1(f) (Financial
statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 8.10 (Financial Covenants) as at the date as at which those
financial statements were drawn up, such Compliance Certificate shall be signed by the chief executive officer or the chief financial officer of the Parent Company;
|
(h) |
(i) |
(ii) |
(iii) |
fully disclose or provide for all significant liabilities of the Borrower, the Parent Company and the Group;
|
(h) |
Provision of further information: promptly, when requested, provide the Lender with such financial and other information and accounts relating to the business, undertaking, assets, liabilities, revenues, financial condition or
affairs of the Borrower and each Security Party as the Lender from time to time may reasonably require;
|
(i) |
Financial Information: provide the Lender from time to time as the Lender may reasonably request with information on the financial conditions, cash flow position, commitments and operations of the
Borrower including cash flow analysis and voyage accounts of the Vessel with a breakdown of income and running expenses showing net trading profit, trade payables and trade receivables, such financial
details to be certified by an authorized signatory of the Borrower as to their correctness;
|
(j) |
Information on the employment of the Vessel: provide the Lender from time to time as the Lender may request with information on the employment of the Vessel, as well as on the terms and conditions of any charterparty, contract of
affreightment, agreement or related document in respect of the employment of the Vessel, such information to be certified by one of the directors of the Borrower as to their correctness;
|
(l) |
Banking operations: ensure that all banking operations in connection with the Vessel are carried out through the Lending Office of the Lender;
|
(m) |
Subordination: ensure that all Financial Indebtedness of the Borrower to its shareholders is fully subordinated to the rights of the Lender under the Finance Documents, all in a form
acceptable to the Lender, and to subordinate to the rights of the Lender under the Finance Documents any Financial Indebtedness issued to it by its shareholders, all in a form acceptable to the Lender;
|
(n) |
Obligations under Finance Documents: duly and punctually perform each of the obligations expressed to be assumed by it under the Finance Documents;
|
(o) |
Payment on demand: pay to the Lender on demand any sum of money which is due and payable by the Borrower to the Lender under this Agreement but in respect of which it is not specified in any other Clause when it is due and
payable;
|
(p) |
Compliance with Laws and Regulations: comply, or procure compliance with all laws or regulations relating to it and/or the Vessel, its ownership, operation and management or to the business of the
Borrower and cause this Agreement and the other Finance Documents to comply with and satisfy all the requirements and formalities established by the applicable laws to perfect this Agreement and the other
Finance Documents as valid and enforceable Finance Documents;
|
(r) |
(i) |
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and
|
(ii) |
without limiting the generality of paragraph (p)) above, at its own cost, promptly register, file, record or enrol any Finance Document with any court or authority in all Relevant Jurisdictions, pay any stamp, registration or similar tax
in all Relevant Jurisdictions in respect of any Finance Document, give any notice or take any other step which may be or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to
ensure or protect the priority of any Security Interest which it creates;
|
(s) |
Registered Office: maintain its registered office at the address referred to in the Recitals; and will not establish, or do anything as a result of which it would be deemed to have, a place of
business in the United Kingdom or the United States of America;
|
(t) |
Parent Company’s CEO: procure that the CEO of the Parent Company to be a person acceptable to the Lender throughout the Security Period; and
|
(u) |
Compliance with Covenants: duly and punctually perform all obligations under this Agreement and the other Finance Documents.
|
8.2 |
Negative undertakings
|
(a) |
Negative pledge:
|
(i) |
create or permit any Security Interest (other than a Permitted Security Interest) to subsist, arise or be created or extended over all or any part of its present or future undertakings, assets, rights or revenues to secure or prefer any
present or future Financial Indebtedness or other liability or obligation of the Borrower other than in the normal course of its business of owning, financing, maintaining and operating the Vessel and owning or acquiring ship-owning
companies; and
|
(ii) |
cease to hold the legal title to, and own the entire beneficial interest in the Vessel, its Insurances and Earnings, free from all Security Interests (other than a Permitted Security Interest) and other interests and rights of every
kind, except for those created by the Finance Documents and the effect of the assignments contained in the General Assignment and any other Finance Documents;
|
(b) |
No further Financial Indebtedness: incur any further Financial Indebtedness in excess of $500,000 nor authorise or accept any capital commitments (other than that normally associated with the day to day operations of the Borrower
and the Vessel, and the operation, maintenance and trading of the Vessel) nor enter into any agreement for payment on deferred terms or hire agreement;
|
(c) |
No merger: merge or consolidate with any other person;
|
(d) |
No disposals:
|
(i) |
sell, transfer, abandon, lend, lease or otherwise dispose of or cease to exercise direct control over any part (being either alone or when aggregated with all other disposals falling to be taken into account pursuant to this Clause
8.2(d) material in the reasonable opinion of the Lender in relation to the undertakings, assets, rights and revenues of the Borrower) of its present or future undertaking, assets, rights or revenues (otherwise than by transfers, sales or
disposals for full consideration in the ordinary course of operations and trading) whether by one or a series of transactions related or not; and
|
(ii) |
transfer, lease or otherwise dispose of any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation;
|
(aa) |
any charter of the Vessel; and
|
(bb) |
any sale of the Vessel to a bona fide third party on arm’s length terms, otherwise than as provided in Clause 4.3(b) (Sale or refinancing of the Vessel);
|
(e) |
No acquisitions: not acquire any further assets other than the Vessel and rights arising under contracts entered into by or on behalf of the Borrower other than in the ordinary course of its business of owning, operating and
chartering the Vessel;
|
(f) |
No other business: not undertake any type of business other than its current business of owning, financing and operating the Vessel and the chartering of the Vessel to third parties;
|
(g) |
No investments: make any investments in any person, asset, firm, corporation, joint venture or other entity;
|
(h) |
(i) |
(ii) |
liabilities or obligations reasonably incurred in the normal course of its business of trading, operating and chartering, maintaining and repairing the Vessel owned by it (and for the purposes of this Clause 8.2(h) fees to be paid
pursuant to the Management Agreement in respect of the Vessel shall be considered as permitted obligations under the Finance Documents) (including, without limitation, any Financial Indebtedness owing to its shareholder(s) or the Approved
Manager, subject to the Borrower ensuring on or prior to the Drawdown Date, that the rights of the Lender thereunder are fully subordinated in writing pursuant to a subordination agreement acceptable to the Lender);
|
(i) |
No borrowing: incur any Financial Indebtedness except for Financial Indebtedness pursuant to the Finance Documents or in the ordinary course of business of operating, maintaining and repairing the Vessel;
|
(j) |
No repayment of borrowings: repay the principal of, or pay interest on or any other sum in connection with, any of Financial Indebtedness except for Financial Indebtedness pursuant to the Finance Documents or in the ordinary
course of business of operating, maintaining and repairing the Vessel;
|
(k) |
No Payments: unless otherwise provided in this Agreement and the other Finance Documents (and then only to the extent expressly permitted by the same) not pay out any funds (whether out of the Earnings or out of moneys collected
under the General Assignment and/or the other Finance Documents or not) to any person except in connection with the administration of the Borrower and the operation and/or maintenance and/or repair and/or trading of the Vessel;
|
(l) |
No guarantees: issue any guarantees or indemnities or otherwise become directly or contingently liable for the obligations of any person, firm, or corporation except pursuant to the Finance Documents and except for, in the case of
the Borrower, guarantees or indemnities from time to time required in the ordinary course of its business, the operation, maintenance and repair of the Vessel or by any protection and indemnity or war risks association with which the Vessel
is entered, guarantees required to procure the release of the Vessel from any arrest, detention, attachment or levy or guarantees or undertakings required for the salvage of the Vessel;
|
(m) |
No loans: make any loans or advances to, including (without limitation) any loan or advance or grant any credit (save for normal trade credit in the ordinary course of business) to any officer, director, stockholder or employee
or any other company managed by the Approved Manager directly or through the Approved Manager of the Vessel or agree to do so, provided, always, that any loans of its shareholders to the Borrower shall be fully subordinated to the
Borrower’s obligations under this Agreement and the other Finance Documents;
|
(n) |
No securities: permit any Financial Indebtedness of the Borrower to any person (other than the Lender) to be guaranteed by any person (save, in the case of the Borrower, for guarantees or indemnities from time to time required in
the ordinary course of business, the operation, maintenance and repair of the Vessel or by any protection and indemnity or war risks association with which the Vessel is entered, guarantees required to procure the release of the Vessel from
any arrest, detention, attachment or levy or guarantees or undertakings required for the salvage of the Vessel);
|
(o) |
No dividends or distributions: if an Event of Default has occurred and is continuing declare or pay any dividends or make other distribution under any name or description or effect any form of redemption, purchase or return of
share capital or otherwise dispose any of the issued shares or otherwise dispose of any of its present or future assets, undertakings, rights or revenues (which are all assigned to the Lender) to any of the shareholders of the Borrower
without the prior written consent of the Lender, such consent not to be unreasonably withheld;
|
(p) |
No Subsidiaries: form or acquire any Subsidiaries;
|
(q) |
No change of business structure: change the nature, organisation and conduct of the business of the Borrower as owner of the Vessel, or carry on any business other than the business carried on at the date of this Agreement;
|
(r) |
No change of legal structure: (such consent not be unreasonably withheld) ensure that none of the documents defining the constitution of the Borrower shall be materially (in the Lender’s reasonable opinion) altered in any manner
whatsoever;
|
(s) |
No Security Interest on assets: other than Permitted Security Interests, not allow any part of its undertaking, property, assets or rights, whether present or future, to be mortgaged, charged, pledged, used as a lien or otherwise
encumbered without the prior written consent of the Lender;
|
(t) |
No amendment to Assignable Charterparty: not waive or fail to enforce, any Assignable Charterparty to which it is a party or any of its provisions, unless that waiver or failure to enforce
does not create a Material Adverse Effect, and will promptly notify the Lender of any amendment or supplement to any Assignable Charterparty;
|
(u) |
Change of control: ensure that:
|
(i) |
no change shall be made directly or indirectly in the ownership, and management of the Borrower or any share in the Borrower or the Vessel;
|
(ii) |
the Guarantor shall remain listed in the NASDAQ Capital Market;
|
(iii) |
the Borrower shall remain wholly owned and controlled Subsidiary of the Guarantor;
|
(iv) |
the Guarantor shall remain holding company of shipowning, all being engaged in activities acceptable to the Lender; and
|
(v) |
each of the Relevant Executives holds such executive position within the management structure of the Parent Company as more particularly described in the Side Letter.
|
(w) |
No US Tax Obligor: procure that, unless otherwise agreed by the Lender, no Security Party shall become a US Tax Obligor; and
|
(x) |
8.3 |
Undertakings concerning the Vessel
|
(a) |
Conveyance on default: where the Vessel is (or is to be) sold in exercise of any power conferred on the Lender, execute, forthwith upon request by the Lender, such form of conveyance of the Vessel as the Lender may require;
|
(b) |
Mortgage: it will execute, and procure the registration of the Mortgage over the Vessel under the laws and flag of the Flag State immediately upon registration of the Vessel in the ownership of the Borrower following her Delivery;
|
(c) |
Chartering: not without the prior written consent of the Lender which shall not be unreasonably withheld (and then only subject to such conditions as the Lender may impose) let or agree to let the Vessel:
|
(i) |
on demise charter for any period; or
|
(ii) |
by any Assignable Charterparty; or
|
(iii) |
other than on an arms’ length basis;
|
(d) |
Laid-up: not de-activate or lay up the Vessel;
|
(e) |
Approved Manager: not without the prior written consent of the Lender (such consent not to be unreasonably withheld) agree or appoint a manager of the Vessel other than the Approved Manager;
|
(f) |
Ownership/Management/Control: ensure that the Vessel will be registered on the Delivery Date in the ownership of the Borrower under the laws of the Flag State and thereafter ensure that the Vessel will maintain her registration,
ownership, management, control and beneficial ownership;
|
(g) |
Class: ensure that the Vessel will remain in class free of overdue recommendations or average damage affecting class or permitted by the Classification Society and provide the Lender on demand with copies of all class and trading
certificates of the Vessel;
|
(h) |
Insurances:
|
(i) |
ensure that all Insurances (as defined in the Mortgage/General Assignment) of the Vessel is maintained and comply with all insurance requirements specified in this Agreement and in the Mortgage and in case
of failure to maintain the Vessel so insured, authorise the Lender (and such authorisation is hereby expressly given to the Lender) to have the right but not the obligation to effect such Insurances
on behalf of the Borrower (and in case that the Vessel remains in port for an extended period) to effect port risks insurances at the cost of the Borrower which,
if paid by the Lender, shall be Expenses;
|
(ii) |
if (aa) an Event of Default has occurred and is continuing or (bb) there has been any change in the insurance placement within such year or (cc) there has been a Material Adverse Change of the financial
condition of any of the insurers of any of the Vessel at the Lender’s reasonable opinion, the Lender shall be entitled to obtain once per year at Borrower’s expense such opinion from such insurance consultants (appointed by the Lender at
the Borrower’s expense) as to the adequacy of the insurances effected or to be effected in respect of the Vessel;
|
(i) |
Transfer/Security Interests: not without the prior written consent of the Lender agrees the Vessel or any share therein to be sold or otherwise disposed of or create or agree to create or permit to subsist any Security Interest
over the Vessel (or any of them) (or any share or interest therein) other than Permitted Security Interests;
|
(j) |
Not imperil Flag, Ownership, Insurances: ensure that the Vessel is maintained and trades in conformity with the laws of the Flag State, of its owning company or of the nationality of the officers, the requirements of the
Insurances and nothing is done or permitted to be done which could endanger the flag of the Vessel or its unencumbered (other than Security Interests in favour of the Lender and other Permitted Security Interests) ownership or its
Insurances;
|
(k) |
Mortgage Covenants: ensure that the Borrower always comply with all the covenants provided for in the Mortgage registered over the Vessel;
|
(l) |
No assignment of Earnings: ensure that the Borrower will not assign or agree to assign otherwise than to the Lender the Earnings or any part thereof;
|
(m) |
No sharing of Earnings: ensure that the Borrower:
|
(i) |
will not enter into any agreement or arrangement for the sharing of any Earnings; and/or
|
(ii) |
will not enter into any agreement or arrangement for the postponement of any date on which any Earnings are due or the reduction of the amount of any Earnings or otherwise for the release or adverse alteration of any right of the
Borrower to any Earnings; and/or
|
(iii) |
will not enter into any agreement or arrangement for the release of, or adverse alteration to, any guarantee or Security Interest relating to any Earnings.
|
(n) |
No amendment to Assignable Charterparty: not waive or fail to enforce, any Assignable Charterparty to which it is a party or any of its provisions, and will promptly
notify the Lender of any material, in the reasonable opinion of the Lender, amendment or supplement to any Assignable Charterparty;
|
(o) |
Assignable Charterparty: ensure and procure that in the event of the Vessel being employed under an Assignable Charterparty:
|
(i) |
execute and deliver to the Lender within fifteen (15) days from the Lender’s relevant request a specific assignment of all its rights, title and interest in and to such charter in the form of a Charterparty
Assignment and a notice of such assignment addressed to the relevant charterer;
|
(ii) |
in case an Event of Default has occurred and is continuing, ensure (on a best effort basis) that the relevant charterer agree to acknowledge to the Lender the specific assignment of such charter and charter
guarantee by executing an acknowledgement substantially in the form included in the relevant Charterparty Assignment;
|
(iii) |
in the case where such charter is a demise charter, ensure (on a best effort basis) that the relevant charterer shall (1) comply with all of the Borrower’s undertakings with regard to the employment,
insurances, operation, repairs and maintenance of the Vessel contained in this Agreement, the Mortgage and the General Assignment and (2) provide (inter alia) an assignment of its interest in the insurances of the Vessel in the form of a tripartite agreement in form and substance acceptable to the Lender, to be made between the Lender, the Borrower and such charterer;
|
(r) |
Trading: use the Vessel only for civil merchant trading;
|
(s) |
Compliance with ISM Code: procure that the Approved Manager and any Operator will:
|
(i) |
will comply with and ensure that the Vessel and any Operator by no later than the Delivery Date in respect of the Vessel complies with the requirements of the ISM Code, including (but not limited to) the maintenance and renewal of valid
certificates pursuant thereto throughout the Security Period;
|
(ii) |
immediately inform the Lender if there is any threatened or actual withdrawal of the Borrower’s, the Approved Manager’s or an Operator’s DOC or the SMC in respect of the Vessel; and
|
(iii) |
promptly inform the Lender upon the issue to the Borrower, the Approved Manager or any Operator of a DOC and to the Vessel of an SMC or the receipt by the Borrower, the Approved Manager or any Operator of notification that its
application for the same has been realised;
|
(t) |
Compliance with ISPS Code: procure that the Approved Manager or any Operator will:
|
(i) |
maintain at all times a valid and current ISSC in respect of the Vessel;
|
(ii) |
immediately notify the Lender in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC in respect of the Vessel; and
|
(iii) |
procure that the Vessel will comply at all times with the ISPS Code;
|
(u) |
Compliance with Environmental Laws: comply with, and procure that all Environmental Affiliates of any Relevant Party comply with, all Environmental Laws including without limitation, requirements relating to manning and
establishment of financial responsibility and to obtain and comply with, and procure that all Environmental Affiliates of such Relevant Party obtain and comply with, all Environmental Approvals and to notify the Lender forthwith:
|
(i) |
of any Environmental Claim for an amount exceeding Five hundred thousand Dollars ($500,000) per incident made against the Vessel, any Relevant Ship and/or their respective owners; and
|
(ii) |
upon becoming aware of any incident which may give rise to an Environmental Claim for an amount exceeding Five hundred thousand Dollars ($500,000) and to keep the Lender advised in writing of the Borrower’s response to such Environmental
Claim on such regular basis and in such detail as the Lender shall require.
|
(v) |
War Risk Insurance cover: in the event of hostilities in any part of the world (whether war is declared or
not), it will not cause or permit the Vessel to enter or trade to any zone which is declared a war zone by any government or by the Vessel’s war risks insurers unless first obtaining the consent to such employment or trade of the
insurers and complying with such requirements as to extra premium or otherwise as the insurers may prescribe.
|
8.4 |
Validity of Securities – Earnings – Taxes etc.
|
(a) |
Validity: ensure and procure that all governmental or other consents required by law and/or any other steps required for the validity, enforceability and legality of this Agreement and the other Finance Documents are maintained in
full force and effect and/or appropriately taken;
|
(b) |
Earnings: ensure and procure that, unless and until directed by the Lender otherwise (i) all the Earnings of the Vessel shall be paid to the Operating Account and (ii) the persons from whom
the Earnings are from time to time due are irrevocably instructed to pay them to the Operating Account or to such account in the name of the Borrower as shall be from time to time determined by the Lender in accordance with the provisions
hereof and of the relevant Security Documents;
|
(c) |
Taxes: pay all Taxes, assessments and other governmental charges imposed on the Borrower when the same fall due, except to the extent that the same are being contested in good faith by appropriate proceedings and adequate
reserves have been set aside for their payment if such proceedings fail;
|
(d) |
Additional Documents: from time to time and within fifteen (15) days after the request of the Lender, execute and deliver to the Lender or procure the execution and delivery to the Lender of all such documents as shall be deemed
desirable at the discretion of the Lender for giving full effect to this Agreement, and for perfecting, protecting the value of or enforcing any rights or securities granted to the Lender under any one or more of this Agreement, the other
Finance Documents and any other documents executed pursuant hereto or thereto and in case that any conditions precedent (with the Lender’s consent) have not been fulfilled prior to the Drawdown Date, such conditions shall be complied with
within fifteen (15) days after the Lender’s written request (unless the Lender agrees otherwise in writing) and failure to comply with this covenant shall be an Event of Default.
|
8.5 |
Secured Value to Security Requirement ratio – Valuation of the Vessel
|
(a) |
Security shortfall – Additional Security: If at any time during the Security Period, the Security Value shall be less than the Security Requirement, the Lender may give notice to the Borrower requiring that such deficiency be
remedied and then the Borrower shall (unless the sole cause of such deficiency is the Total Loss of the Vessel and the Borrower in full compliance with its obligations in relation to such Total Loss) either:
|
(i) |
prepay (in accordance with Clause 4.2 (Voluntary prepayment) (but without regard to the requirement for five (5) days’ notice) within a period of thirty (30) days of the date of receipt
by the Borrower of the Lender’s said notice (the “Prepayment Date”) such sum in Dollars as will result in the Security Requirement after such prepayment (taking into account any
other repayment of the Loan made between the date of the notice and the date of such prepayment) being at least equal to the Security Value; or
|
(ii) |
on or before the Prepayment Date constitute to the satisfaction of the Lender such further security for the Loan as shall be acceptable to the Lender having a value for security purposes (as determined by the Lender in its absolute
discretion) at the date upon which such further security shall be constituted which, when added to the Security Value, shall not be less than the Security Requirement as at such date. Such additional security shall be constituted by:
|
aa) |
additional pledged cash deposits in favor of the Lender in an amount equal to such shortfall with the Lender and in an account and manner to be determined by the Lender; and/or
|
bb) |
any other security acceptable to the Lender at its absolute discretion to be provided in a manner determined by the Lender.
|
(b) |
Valuation of Vessel: The Vessel shall, for the purposes of this Clause 8.5, be valued in Dollars once a year or, if an Event of Default has occurred and is continuing at any other time that the Lender shall reasonably require by
an Approved Shipbroker, appointed by the Borrower and addressed to the Lender (such valuation to be made without, unless required by the Lender, physical inspection, and on the basis of a sale for prompt delivery for cash at arm’s length on
normal commercial terms as between a willing buyer and a willing seller, without taking into account the benefit of any charterparty or other engagement concerning the Vessel. The Lender and the Borrower agrees to accept such valuation made
by such Approved Shipbroker appointed as aforesaid as conclusive evidence of the Market Value of the Vessel at the date of such valuation and such valuation shall constitute the Market Value of the Vessel for the purposes of this Clause
8.5.
|
(c) |
Information: The Borrower undertakes to the Lender to provide the Lender and any such Approved Shipbrokers such information concerning the Vessel and its condition as such Approved Shipbrokers may reasonably require for the
purpose of making any such valuation.
|
(d) |
Costs: All costs in connection with:
|
(i) |
the Lender obtaining any valuation of the Vessel referred to in Clause 8.5(b) (Valuation of Vessel); and
|
(ii) |
any valuation of any additional security for the purposes of ascertaining the Security Value at any time or necessitated by the Borrower electing to constitute additional security pursuant to Clause 8.5(a)(ii): and
|
(iii) |
all legal and other expenses incurred by the Lender in connection with any matter arising out of this Clause 8.5,
|
(e) |
Valuation of additional security: For the purpose of this Clause 8.5, the market value of any additional security provided or to be provided to the Lender shall be determined by the Lender in its absolute discretion without any
necessity for the Lender assigning any reason thereto and if such security consists of a vessel shall be that shown by a valuation complying with the requirements of Clause 8.5(b) (Valuation of Vessel)
(whereas the costs shall be borne by the Borrower in accordance with Clause 8.5(d) (Costs)) or if the additional security is in the form of a cash deposit full credit shall be given for such
cash deposit on a Dollar for Dollar basis.
|
(f) |
Documents and evidence: In connection with any additional security provided in accordance with this Clause 8.5, the Lender shall be entitled to receive such evidence and documents of the kind referred to in Clause 7.1 (Conditions precedent to the execution of this Agreement) as may in the Lender’s opinion be appropriate and such favourable legal opinions as the Lender shall in its absolute discretion require.
|
8.6 |
Sanctions
|
(a) |
Without limiting Clause 8.7 (Compliance with laws etc.), the Borrower hereby undertakes with the Lender that, from the date of this Agreement and until the date that the Outstanding
Indebtedness is paid in full, it shall ensure that the Vessel:
|
(i) |
will not be used by or for the benefit of a Sanctions Restricted Person contrary to Sanctions; and/or
|
(ii) |
will not be used in trading in any Sanctions Restricted Jurisdiction or in any manner contrary to Sanctions; and/or
|
(iii) |
will not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances.
|
(b) |
The Borrower shall:
|
(i) |
not directly or to its knowledge (after reasonable enquiry) indirectly use or permit to be used all or any part of the proceeds of the Loan, or lend, contribute or otherwise make available such proceeds directly or to its knowledge
(after reasonable enquiry) indirectly, to any person or entity (i) to finance or facilitate any activity or transaction of or with any Sanctions Restricted Person contrary to Sanctions or in any Sanctions Restricted Jurisdiction, or (ii) in
any other manner that would result in a violation of any Sanctions by any Party;
|
(ii) |
shall not fund all or part of any payment under the Loan out of proceeds derived directly or to its knowledge (after reasonable enquiry) indirectly from any activity or transaction with a Sanctions Restricted Person contrary to Sanctions
or in a Sanctions Restricted Jurisdiction or which would otherwise cause any party to be in breach of any Sanctions; and
|
(iii) |
procure that no proceeds to its knowledge (after reasonable enquiry) from activities or business with a Sanctions Restricted Person contrary to Sanctions or in a Sanctions Restricted Jurisdiction are credited to any of the Accounts.
|
8.7 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations by the relevant Security Party:
|
(i) |
relating to its respective business generally; and
|
(ii) |
relating to the Vessel, its ownership, employment, operation, management and registration including, but not limited to, the ISM Code, the ISPS Code, all Environmental Laws and the laws of the Flag State; and
|
(iii) |
all Sanctions;
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals; and
|
(c) |
without limiting paragraph (i) above, not employ the Vessel 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 and all
Environmental Laws which has or is likely to have a Material Adverse Effect on any of the Security Parties.
|
8.8 |
Covenants for the Securities Parties
|
8.9 |
Know your customer and money laundering compliance
|
8.10 |
Financial Covenants
|
(a) |
Financial covenants-Compliance Certificate: the Borrower will ensure that:
|
(i) |
for the duration of the Security Period, the Parent Company’s consolidated financial position, based on the most recent Accounting Information to comply with the financial covenants set out below:
|
aa) |
Corporate Liquidity: maintain an aggregate amount of (a) Cash and (b) Cash Equivalents not less than the higher of:
|
1. |
an amount equal to the aggregate of (a) $9,000,000 in respect of the Fleet Vessels owned by members of the Group on the date of this Agreement plus (b) $500,000 per Fleet Vessel (including the Vessel), acquired by a member of the Group
after the date of this Agreement, if any; and
|
2. |
7.5% of the Total Debt; and
|
bb) |
Working Capital: maintain Working Capital greater than zero Dollars throughout the Security Period; and
|
cc) |
Value Adjusted Equity Ratio: maintain a Value Adjusted Equity Ratio at a minimum of 35%.
|
(b) |
Construction: The expressions used in this Clause 8.10 shall be construed in accordance with law and accounting principles internationally accepted as used in the Accounting Information produced in accordance with Clause 8.1(f) (Financial statements-Compliance Certificate).
|
(c) |
Definitions: For the purposes of this Agreement:
|
9.1 |
Events
|
(e) |
Cross‑default:
|
(ii) |
(iv) |
any guarantee given by any of the Borrower and the Corporate Guarantor in respect of Financial Indebtedness relating to an amount exceeding the Permitted Amount is not honoured when due and called upon; or
|
(h) |
Reduction or loss of capital: a meeting is convened by any of the Borrower for the purpose of passing any resolution to purchase, reduce or redeem any of its share capital; or
|
(n) |
Cessation of business: any Security Party suspends or ceases or threatens to suspend or cease to carry on its business; or
|
(z) |
(aa) |
ISM Code and ISPS Code: (without prejudice to the generality of Clause 9.1(c) (Breach of other obligations)) for any reason whatsoever the provisions of Clause 8.3(s) (Compliance with ISM Code) and Clause 8.3(t) (Compliance with ISPS Code) are not complied with and the Vessel ceases to comply with the ISM Code
or, as the case may be, the ISPS Code; or
|
(dd) |
Finance Documents: any other event of default (as howsoever described or defined therein) occurs under the Finance Documents (or any of them).
|
9.2 |
Consequences of Default – Acceleration
|
9.3 |
Multiple notices; action without notice
|
9.4 |
Demand basis
|
9.5 |
Proof of Default
|
9.6 |
Exclusion of Lender’s liability
|
10.1 |
Miscellaneous indemnities
|
(a) |
(b) |
10.2 |
Expenses
|
(d) |
10.3 |
Break Costs
|
(a) |
(b) |
(i) |
the interest which the Lender, should have received in accordance with Clause 3 (Interest) in respect of the sum received or recovered from the date of receipt or recovery of such Payment
to the last day of the then current Interest Period applicable to the sum received or recovered had such Payment been made on the last day of such Interest Period;
|
(ii) |
the amount which the Lender, would be able to obtain by placing an amount equal to such Payment on deposit with a leading bank for a period commencing on the Business Day following receipt or recovery of such Payment (as the case may be)
and ending on the last day of the then current Interest Period applicable to the sum received or recovered.
|
10.4 |
Value Added Tax
|
10.5 |
Stamp duty etc.
|
10.6 |
Environmental Indemnity
|
10.7 |
Currency Indemnity
|
10.8 |
Maintenance of the Indemnities
|
10.9 |
MII costs and MAPI costs
|
10.10 |
Central Bank or European Central Bank reserve requirements indemnity
|
10.11 |
Communications Indemnity
|
10.12 |
Electronic communication
|
(b) |
If the Borrower or any other Security Party wish to cease all electronic communication, they shall give written notice to the Lender accordingly after receipt of which notice the Parties shall cease all electronic communication.
|
(c) |
(i) |
(ii) |
notify each other of any change to their respective addresses or any other such information supplied to them; and
|
(iii) |
in case electronic communication is sent to recipients with the domain <@unitizedocean.com>, the parties shall without undue delay inform each other if there are changes to the said domain
or if electronic communication shall thereafter be sent to individual e-mail addresses.
|
10.13 |
10.14 |
FATCA status
|
(a) |
Subject to Clause 10.14(c) below, each party shall, within ten (10) Business Days of a reasonable request by another party:
|
(i) |
confirm to that other party whether it is:
|
(aa) |
a FATCA Exempt Party; or
|
(bb) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other party such forms, documentation and other information relating to its status under FATCA (including its applicable passthru percentage or other information required under the Treasury Regulations or other official
guidance including intergovernmental agreements) as that other party reasonably requests for the purposes of that other party’s compliance with FATCA.
|
(b) |
If a party confirms to another party pursuant to Clause 10.14(a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that party shall notify that other
party reasonably promptly.
|
(c) |
Clause 10.14(a)(i) above shall not oblige the Lender to do anything which would or might in its opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a party fails to confirm its status or to supply forms, documentation or other information requested in accordance with Clause10.14(a) above (including, for the avoidance of doubt, where Clause 10.14(c) above applies), then:
|
(i) |
if that party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and
|
(ii) |
if that party failed to confirm its applicable passthru percentage then such party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable passthru percentage is 100%,
|
10.15 |
Arrangement fee
|
(a) |
Arrangement fee: The Borrower shall pay to the Lender an arrangement fee in an amount of Dollars equal to zero point five zero per cent. (0.50%) of the amount of the Loan.
|
(b) |
Non-refundable: The Arrangement Fee shall be payable by the Borrower to the Lender irrespective of utilisation/cancellation in part or in whole of the Commitment and/or the MOA cancellation or non-Delivery of the Vessel and shall
be non-refundable.
|
11.1 |
Securities
|
11.2 |
Maintenance of Securities
|
11.3 |
Application of receipts
|
(i) |
FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents in the following order and proportions:
|
bb) |
Secondly, in or towards payment of any default interest then due and payable to the Lender;
|
cc) |
dd) |
(ii) |
SECOND the surplus (if any), after the full and complete payment of the Outstanding Indebtedness, shall be paid to the Borrower or to any other person appearing to be entitled to it.
|
(b) |
Notice of variation of order of application: The Lender may, by notice to the Borrower and the Security Parties, provide, at its sole discretion, for a different order of application from that set out in
Clause 11.3(a) (Order of application) either as regards a specified sum or sums or as regards sums in a specified category or categories, without affecting the obligations of the Borrower to
the Lender.
|
(c) |
Effect of variation notice: The Lender may give notices under Clause 11.3(b) (Notice of variation of order of application) from time to time; and such a
notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business Day before the date on which the notice is served.
|
(d) |
Insufficient balance: For the avoidance of doubt, in the event that such balance is insufficient to pay in full the whole of the Outstanding Indebtedness, the Lender shall be entitled to collect the
shortfall from the Borrower or any other person liable therefor.
|
(e) |
Appropriation rights overridden: This Clause 11.3 and any notice which the Lender gives under Clause 11.3(b) (Notice of variation of order
of application) shall override any right of appropriation possessed, and any appropriation made, by the Borrower or any other Security Party.
|
11.4 |
(ii) |
in the name of the Borrower and/or the Lender to do all such acts and execute all such documents as may be necessary or expedient to effect such application; and
|
(iii) |
to combine and/or consolidate all or any accounts in the name of the Borrower with the Lender; and
|
aa) |
bb) |
cc) |
to enter into any other transaction or make any entry with regard to the credit balance which the Lender considers appropriate.
|
(b) |
Existing rights unaffected: The Lender shall not be obliged to exercise any right given by this Clause; and those rights shall be without prejudice and in addition to any right of set-off, combination
of accounts, charge, lien or other right or remedy to which the Lender is entitled (whether under the general law or any document). For all or any of the above purposes authority is hereby given to the Lender to purchase with the moneys
standing to the credit of any such account or accounts such other currencies as may be necessary to effect such application. The Lender shall notify the Borrower forthwith upon the exercise of any right of set‑off giving full details in
relation thereto.
|
12.1 |
Unlawfulness
|
12.2 |
Increased Cost
|
(a) |
increase the cost to, or impose an additional cost on, the Lender or its holding company in making or keeping the Commitment available or maintaining or funding all or part of the Loan; and/or
|
(c) |
(i) |
the Lender shall notify the Borrower in writing of such event promptly upon it becoming aware of the same; and
|
12.3 |
Mitigation
|
12.4 |
Claim for increased cost
|
12.5 |
Option to prepay
|
(b) |
Application of prepayment: Clause 4 (Repayment-Prepayment) shall apply in relation to the prepayment.
|
12.6 |
Exception
|
12.7 |
Contractual recognition of bail-in
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
13.1 |
General
|
(a) |
(b) |
ensure and procure that all moneys payable to the Borrower in respect of the Earnings of the Vessel and the Insurances thereon shall, unless and until the Lender directs to the contrary pursuant to the General Assignment, be paid to the
Operating Account, free from Security Interests and rights of set off other than those created by or under the Finance Documents and, shall be held there on trust for the Lender and shall be applied as provided in Clause 13.2 (Application of Earnings),
|
13.2 |
Application of Earnings
|
(b) |
Second: in or towards payment of the Operating Expenses; and
|
13.3 |
Interest
|
13.4 |
Drawings from Operating Account
|
13.5 |
Authorisation
|
13.6 |
Obligations unaffected
|
(b) |
any other liability or obligation of the Borrower or any other Security Party under any Finance Document.
|
13.7 |
Relocation of Operating Account
|
13.8 |
Application on Event of Default
|
13.9 |
No Security Interests
|
13.10 |
Operation of Operating Account
|
13.11 |
Release
|
14.1 |
Binding Effect
|
14.2 |
No Assignment by the Borrower and other Security Parties
|
14.3 |
(a) |
another branch, any Subsidiary or Affiliate of, or company controlled by, the Lender,
|
14.4 |
Participation
|
14.5 |
Cost
|
14.6 |
Documenting assignments and transfers
|
14.7 |
Disclosure of information
|
(a) |
in relation to any proceedings arising out of this Agreement or the other Finance Documents to the extent considered necessary by the Prospective Assignee to protect its interest; or
|
(b) |
pursuant to a court order relating to discovery or otherwise; or
|
(c) |
pursuant to any law or regulation or to any fiscal, monetary, tax, governmental or other competent authority; or
|
(d) |
to its auditors, legal or other professional advisers.
|
14.8 |
Changes in constitution or reorganisation of the Lender
|
14.9 |
Securitisation
|
14.10 |
15.1 |
Time of essence
|
15.2 |
Cumulative Remedies
|
15.3 |
No implied waivers
|
15.4 |
Integration of Terms
|
15.5 |
Recourse to other security
|
15.6 |
Amendments - No modification, waiver etc. unless in writing
|
(a) |
This Agreement and any other Finance Documents shall not be amended or varied in their respective terms by any oral agreement or representation or in any other manner other than by an instrument in writing of even date herewith or
subsequent hereto executed by or on behalf of the parties hereto or thereto.
|
(b) |
No modification or waiver by the Lender of any provision of this Agreement or of any of the other Finance Documents nor any consent by the Lender to any departure therefrom by any Security Party shall be
effective unless the same shall be in writing and then shall only be effective in the specific case and for the specific purpose for which given. No notice to or demand on any such party in any such case shall entitle such party to any
other or further notice or demand in similar or other circumstances.
|
15.7 |
Severability of provisions
|
15.8 |
Language and genuineness of documents
|
(a) |
Language: All certificates, instruments and other documents to be delivered under or supplied in connection with this Agreement or any of the other Finance Documents shall be in the Greek or the English language (or such other
language as the Lender shall agree) or shall be accompanied by a certified Greek translation upon which the Lender shall be entitled to rely.
|
(b) |
Certification of documents: Any copies of documents delivered to the Lender shall be duly certified as true, complete and accurate copies by appropriate authorities or legal counsel practicing in Greece or otherwise as will be
acceptable to the Lender at the sole discretion of the Lender.
|
(c) |
Certification of signature: Signatures on Board or shareholder resolutions, Secretary’s certificates and any other documents are, at the discretion of the Lender, to be verified for their genuineness by appropriate Consul or
other competent authority.
|
15.9 |
Further assurances
|
15.10 |
Counterparts
|
15.11 |
Confidentiality
|
(a) |
Each of the parties hereto agree and undertake to keep confidential any documentation and any confidential information concerning the business, affairs, directors or employees of the other which comes into its possession in connection
with this Agreement and not to use any such documentation, information for any purpose other than for which it was provided.
|
(b) |
The Borrower acknowledges and accepts that the Lender may be required by law regulation or regulatory requirement or any request of any central bank or any court order to disclose information and deliver documentation relating to the
Borrower and the transactions and matters in relation to this Agreement and/or the other Finance Documents to governmental or regulatory agencies and authorities.
|
(c) |
The Borrower acknowledges and accepts that in case of occurrence of any of the Events of Default which is continuing the Lender may disclose information and deliver documentation relating to the Borrower and the transactions and matters
in relation to this Agreement and/or the other Finance Documents to third parties to the extent that this is necessary for the enforcement or the contemplation of enforcement of the Lender’s rights or for any other purpose for which in the
opinion of the Lender, such disclosure would be useful or appropriate for the interests of the Lender or otherwise and the Borrower expressly authorises any such disclosure and delivery.
|
(d) |
The Borrower acknowledges and accepts that the Lender may be prohibited from disclosing information to the Borrower by reason of law or duties of confidentiality owed or to be owed to other persons.
|
15.12 |
Personal data
|
(c) |
Duration of the process: The personal data process shall survive the termination of this Agreement for such period as it is required by the applicable law.
|
16.1 |
Notices
|
(b) |
be deemed to have been received, subject as otherwise provided in this Agreement or the relevant Finance Document, in the case of fax or electronic mail, at the time of dispatch as per transmission report (provided, in either case,
that if the date of despatch is not a business day in the country of the addressee it shall be deemed to have been received at the opening of business on the next such business day), and in the case of a letter when delivered or
served personally or five (5) days after it has been put into the post; and
|
(c) |
be sent:
|
(i) |
if to be sent to any Security Party, to:
|
(ii) |
16.2 |
Effective date of notices
|
(a) |
(b) |
16.3
|
Service outside business hours
|
(a) |
(b) |
on such a Business Day, but after 5 p.m. local time,
|
16.4
|
Illegible notices
|
16.5
|
Valid notices
|
(a) |
(b) |
16.6
|
Effect of 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 (5) Business Days’ notice.
|
(b) |
Any such electronic communication as specified in paragraph (a) above to be made between a Security Party and the Lender 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.
|
(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 Business 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 16.6.
|
16.7 |
16.8 |
Meaning of “notice”
|
17.1 |
Governing Law
|
(a) |
This Agreement and any non-contractual obligations connected with it shall be governed by and construed in accordance with English Law.
|
17.2 |
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or any non-contractual obligations connected with it (including a dispute regarding the existence, validity or
termination of this Agreement and including claims arising out of tort or delict) (a “Dispute”).
The Borrower irrevocably and unconditionally submits to the jurisdiction of such courts.
|
(b) |
(c) |
17.3 |
Process Agent for English Proceedings
|
(a) |
the Borrower hereby agrees and undertakes to maintain a Process Agent for English Proceedings throughout the Security Period and hereby agrees that in the event that if any Process Agent for English Proceedings is unable for any reason
to act as agent for service of process, the Borrower must immediately (and in any event within ten (10) days of such event taking place) appoint another agent on terms acceptable to the Lender. Failing this, the Lender may appoint for this
purpose a substitute Process Agent for English Proceedings and the Lender is hereby irrevocably authorised to effect such appointment on Borrower’s behalf. The appointment of such Process Agent for English Proceedings shall be valid and
binding from the date notice of such appointment is given by the Lender to the Borrower in accordance with Clause 16 (Notices and communications); and
|
(b) |
17.4 |
Proceedings in any other country
|
17.5 |
Process Agent (antiklitos) in Greece
|
17.6 |
Third Party Rights
|
17.7 |
Meaning of “proceedings”
|
SIGNED by
|
)
|
|
Mrs. Aikaterini Oikonomea
|
)
|
|
for and on behalf of
|
)
|
|
ARBAR SHIPPING COMPANY INC.,
|
)
|
|
of the Marshall Islands,
|
)
|
/s/ Aikaterini Oikonomea
|
in the presence of:
|
)
|
Attorney-in-fact
|
SIGNED by
|
)
|
|
Mr. Konstantinos Flokos and
|
)
|
/s/ Konstantinos Flokos
|
Mrs. Chrysanthi Papathanasopoulou
|
)
|
Attorney-in-fact
|
for and on behalf of
|
)
|
|
ALPHA BANK S.A.,
|
)
|
|
of Greece,
|
)
|
|
in the presence of:
|
)
|
/s/ Chrysanthi Papathanasopoulou
|
Attorney-in-fact
|