|
Clause
|
Page
|
|
Section 1 Interpretation
|
2
|
|
|
1
|
Definitions and Interpretation
|
2
|
|
Section 2 The Facility
|
22
|
|
|
2
|
The Facility
|
22
|
|
3
|
Purpose
|
22
|
|
4
|
Conditions of Utilisation
|
23
|
|
Section 3 Utilisation
|
24
|
|
|
5
|
Utilisation
|
24
|
|
Section 4 Repayment, Prepayment and Cancellation
|
26
|
|
|
6
|
Repayment
|
26
|
|
7
|
Prepayment and Cancellation
|
27
|
|
Section 5 Costs of Utilisation
|
30
|
|
|
8
|
Interest
|
30
|
|
9
|
Interest Periods
|
31
|
|
10
|
Changes to the Calculation of Interest
|
32
|
|
11
|
Fees
|
34
|
|
Section 6 Additional Payment Obligations
|
35
|
|
|
12
|
Tax Gross Up and Indemnities
|
35
|
|
13
|
Increased Costs
|
38
|
|
14
|
Other Indemnities
|
39
|
|
15
|
Mitigation by the Lender
|
42
|
|
16
|
Costs and Expenses
|
42
|
|
Section 7 Guarantee and Joint and Several Liability of Borrowers
|
44
|
|
|
17
|
Guarantee and Indemnity –Guarantor
|
44
|
|
18
|
Joint and Several Liability of the Borrowers
|
46
|
|
Section 8 Representations, Undertakings and Events of Default
|
48
|
|
|
19
|
Representations
|
48
|
|
20
|
Information Undertakings
|
54
|
|
21
|
Financial Covenants
|
56
|
|
22
|
General Undertakings
|
59
|
|
23
|
Insurance Undertakings
|
64
|
|
24
|
General Ship Undertakings
|
69
|
|
25
|
Security Cover
|
74
|
|
26
|
Application of Earnings
|
76
|
|
27
|
Events of Default
|
76
|
|
Section 9 Changes to the Parties
|
81
|
|
|
28
|
Changes to the Lender
|
81
|
|
29
|
Changes to the Transaction Obligors
|
82
|
|
Section 10 Administration
|
83
|
|
|
30
|
Payment Mechanics
|
83
|
|
31
|
Set-Off
|
84
|
|
32
|
Conduct of business by the Lender
|
85
|
|
33
|
Notices
|
85
|
|
34
|
Calculations and Certificates
|
87
|
|
35
|
Partial Invalidity
|
87
|
|
36
|
Remedies and Waivers
|
87
|
|
37
|
Settlement or Discharge Conditional
|
87
|
|
38
|
Irrevocable Payment
|
87
|
|
39
|
Confidential Information
|
88
|
|
40
|
Counterparts
|
90
|
|
Section 11 Governing Law and Enforcement
|
91
|
|
|
41
|
Governing Law
|
91
|
|
42
|
Enforcement
|
91
|
|
Schedule 1 The Parties
|
92
|
|
Schedule 2 Conditions Precedent
|
94
|
|
Schedule 3 Requests
|
99
|
|
Schedule 4 Form of Compliance Certificate
|
102
|
|
Schedule 5 Details of the Ships
|
103
|
|
Schedule 6 Timetables
|
104
|
|
Execution Pages
|
105
|
| (1) |
PREMIER MARINE CO., a corporation incorporated in the
Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands as a borrower ("Borrower A")
|
| (2) |
FELLOW SHIPPING CO., a corporation incorporated in the
Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands as a borrower ("Borrower B")
|
| (3) |
SEANERGY MARITIME HOLDINGS CORP., a corporation
incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands as guarantor (the "Guarantor")
|
| (4) |
UNICREDIT BANK AG as lender (the "Original Lender")
|
| (a) |
3.20 per cent. per annum, if the Security Cover Ratio is less than 125 per cent; or
|
| (b) |
3 per cent. per annum, if the Security Cover Ratio is (i) equal to, or higher than 125 per cent. and (ii) equal to, or less than 166.67 per cent.; or
|
| (c) |
2.75 per cent. per annum, if the Security Cover Ratio is higher than 166.67 per cent,
|
| (a) |
the amount of the outstanding Loan; and
|
| (b) |
in relation to any proposed Utilisation, the amount of any Advance that is due to be made on or before the proposed Utilisation Date.
|
| (a) |
the interest which the Lender should have received for the period from the date of receipt of all or any part of the Loan or an Unpaid Sum to the last day of
the current Interest Period in relation to the Loan, the relevant part of the Loan or that Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds
|
| (b) |
the amount which the Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading
bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
| (a) |
information that:
|
| (i) |
is or becomes public information other than as a direct or indirect result of any breach by the Lender of Clause 39 (Confidential Information); or
|
| (ii) |
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
| (iii) |
is known by the Lender before the date the information is disclosed to it by any member of the Group or any of its advisers or is lawfully obtained by the
Lender after that date, from a source which is, as far as the Lender is aware, unconnected with the Group and which, in either case, as far as the Lender is aware, has not been obtained in breach of, and is not otherwise subject to, any
obligation of confidentiality; and
|
| (b) |
any Funding Rate or Reference Bank Quotation.
|
| (a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for
payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties
or, if applicable, any Transaction Obligor; or
|
| (b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party
or, if applicable, any Transaction Obligor preventing that, or any other, Party or, if applicable, any Transaction Obligor:
|
| (i) |
from performing its payment obligations under the Finance Documents; or
|
| (ii) |
from communicating with other Parties or, if applicable, any Transaction Obligor in accordance with the terms of the Finance Documents,
|
| (ii) |
compensation payable to a Borrower or the Lender in the event of requisition of that Ship for hire;
|
| (iii) |
remuneration for salvage and towage services;
|
| (iv) |
demurrage and detention moneys;
|
| (v) |
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship;
|
| (vii) |
all monies which are at any time payable to a Borrower in relation to general average contribution; and
|
| (b) |
if and whenever that Ship is employed on terms whereby any moneys falling within sub-paragraphs (i) to (vi) of paragraph (a) above are pooled or shared with
any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship.
|
| (a) |
any account in the name of that Borrower with the Lender in Germany and in Greece designated "Earnings Account"; or
|
| (b) |
any other account (with that or another office of the Lender or with a bank or financial institution other than the Lender ) which is designated by the Lender
as the Earnings Account of that Borrower for the purposes of this Agreement.
|
| (a) |
any release, emission, spill or discharge into any Ship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally
Sensitive Material within or from any Ship; or
|
| (b) |
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the
seabed) or surface water from a vessel other than any Ship and which involves a collision between any Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is
actually or potentially liable to be arrested, attached, detained or injuncted and/or a Ship and/or any Transaction Obligor and/or
|
| (c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including
the seabed) or surface water otherwise than from a Ship and in connection with which a Ship is actually or potentially liable to be arrested and/or where any Transaction Obligor and/or any operator or manager of a Ship is at fault or
allegedly at fault or otherwise liable to any legal or administrative action.
|
| (c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service,
the US government or any governmental or taxation authority in any other jurisdiction.
|
| (a) |
this Agreement;
|
| (b) |
the Deed of Accession, Amendment and Restatement;
|
| (c) |
each Utilisation Request;
|
| (d) |
the Hedging Agreement;
|
| (e) |
any Security Document;
|
| (f) |
any other document which is executed for the purpose of establishing any priority or subordination arrangement in relation to the Secured Liabilities; or
|
| (g) |
any other document designated as such by the Lender and the Borrowers.
|
| (b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
| (c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
| (d) |
the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;
|
| (e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
| (g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the
value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
|
| (h) |
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank
or financial institution; and
|
| (i) |
the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (f) above.
|
| (a) |
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in relation to that
Ship, the Earnings or otherwise in relation to that Ship whether before, on or after the date of this Agreement; and
|
| (b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium and any
rights in relation to any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
| (a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part of
the Loan; and
|
| (b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the
Loan,
|
| (a) |
the Original Lender; and
|
| (b) |
any bank, financial institution, trust, fund or other entity which has become the Lender in accordance with Clause 28 (Changes to the Lender),
|
| (a) |
the applicable Screen Rate as of the Specified Time for dollars and for a period equal in length to the Interest Period of the Loan or that part of
the Loan; or
|
| (b) |
as otherwise determined pursuant to Clause 10.1 (Unavailability
of Screen Rate),
|
| (a) |
as at a date not more than 14 Business Days previously;
|
| (b) |
by an Approved Valuer;
|
| (c) |
with or without physical inspection of that Ship or vessel (including without limitation any Fleet Ship) (as the Lender may require); and
|
| (d) |
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any
Charter,
|
| (a) |
the business, operations, property, condition (financial or otherwise) or prospects of the Transaction Obligors; or
|
| (b) |
the ability of any Transaction Obligor to perform its obligations under any Finance Document; or
|
| (c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the Finance Documents
or the rights or remedies of the Lender under any of the Finance Documents.
|
| (a) |
in respect of Ship A, the memorandum of agreement dated 6 August 2015 and made between (i) Borrower A as buyer and (ii) the relevant Seller for the purchase
of Ship A; and
|
| (b) |
in respect of Ship B, the memorandum of agreement dated 31 August 2018 (as amended by Addendum no. 1 dated 28 September 2018 and further amended by Addendum
no. 2 dated 31 October 2018) and made between (i) Borrower B as buyer and (ii) the relevant Seller for the purchase of Ship B.
|
| (a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar
month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
| (b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that
calendar month; and
|
| (a) |
which is a time, voyage or consecutive voyage charter;
|
| (b) |
the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 16 months plus a redelivery allowance of not more
than 30 days;
|
| (c) |
which is entered into on bona fide arm's length terms
at the time at which that Ship is fixed; and
|
| (d) |
in relation to which not more than two months' hire is payable in advance,
|
| (a) |
any Financial Indebtedness incurred under the Finance Documents; and
|
| (b) |
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred under the Finance Documents pursuant to a Finance Document which is
subject of Security in favour of the Lender.
|
| (a) |
Security created by the Finance Documents;
|
| (b) |
any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit
and credit balances;
|
| (c) |
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
| (d) |
liens for salvage;
|
| (e) |
liens for master's disbursements incurred in the ordinary course of trading; and
|
| (f) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Ship and not as a result of any
default or
|
| (a) |
England and Wales;
|
| (i) |
the country under the laws of which the company is incorporated or formed;
|
| (ii) |
a country in which the company has the centre of its main interests or which the company’s central management and control is or has recently been exercised;
|
| (iii) |
a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax;
|
| (iv) |
a country in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are situated, in which
the company maintains a branch or permanent place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and
|
| (v) |
a country the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company, whether as a main or
territorial or ancillary proceedings, or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs (ii) or (iii).
|
| (a) |
(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in dollars
for the
|
| (a) |
its jurisdiction of incorporation;
|
| (b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is
situated;
|
| (c) |
any jurisdiction where it conducts its business; and
|
| (d) |
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
| (a) |
any expropriation, confiscation, requisition or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a
nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for
hire for a fixed period not exceeding one year without any right to an extension) unless it is within 45 days redelivered to the full control of the relevant Borrower; and
|
| (b) |
any arrest, capture, seizure or detention of that Ship (including any hijacking or theft) unless it is within 45 days redelivered to the full control of the
relevant Borrower.
|
| (a) |
imposed by law or regulation of the United Kingdom, the Council of the European Union, the United Nations or its Security Council or the United States of
America regardless of whether the same is or is not binding on any Transaction Obligor; or
|
| (b) |
otherwise imposed by any law or regulation binding on a Transaction Obligor or to which a Transaction Obligor is subject (which shall include without
limitation, any extra-territorial sanctions imposed by law or regulation of the United States of America),
|
| (a) |
any Shares Security;
|
| (b) |
any Mortgage;
|
| (c) |
any Deed of Covenant;
|
| (d) |
any General Assignment;
|
| (e) |
any Charterparty Assignment;
|
| (f) |
any Account Security;
|
| (g) |
any Manager's Undertaking;
|
| (h) |
the Hedging Agreement Security;
|
| (i) |
any other document (whether or not it creates Security) which is executed as security for the Secured Liabilities; or
|
| (j) |
any other document designated as such by the Lender and the Borrowers.
|
| (a) |
the Transaction Security expressed to be granted in favour of the Lender and all proceeds of that Transaction Security;
|
| (b) |
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Liabilities to the Lender and secured by the
Transaction Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favour of the Lender; and
|
| (c) |
the Lender's interest in any turnover trust created under the Finance Documents.
|
| (a) |
actual, constructive, compromised, agreed or arranged total loss of that Ship; or
|
| (b) |
any Requisition.
|
| (a) |
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
| (b) |
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:
|
| (i) |
the date on which a notice of abandonment is given to the insurers; and
|
| (ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the relevant Borrower with that Ship's insurers in which the insurers agree to
treat that Ship as a total loss; and
|
| (c) |
in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Lender that the event constituting the total loss
occurred.
|
| (a) |
a Finance Document;
|
| (b) |
any Charter;
|
| (c) |
any MOA;
|
| (d) |
any Management Agreement; or
|
| (e) |
any other document designated as such by the Lender and a Borrower.
|
| (a) |
the proposed transfer date specified in the Assignment Agreement; and
|
| (b) |
the date on which the parties to the Assignment Agreement have all executed, and agreed to be bound by, the Assignment Agreement.
|
| (a) |
a Borrower which is resident for tax purposes in the US; or
|
| (b) |
a Transaction Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
| (b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to
in paragraph (a) above, or imposed elsewhere.
|
| (a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
| (i) |
the "Lender", any "Obligor", any "Party", any "Transaction Obligor" or any other person shall be
construed so as to include its successors in title and permitted assigns;
|
| (ii) |
"assets" includes present and future properties,
revenues and rights of every description;
|
| (iii) |
"continuing Event of Default" means an Event of
Default which has not been remedied or waived;
|
| (iv) |
“continuing Potential Event of Default” means a
Potential Event of Default which has not been remedied or waived;
|
| (v) |
a liability which is "contingent" means a liability
which is not certain to arise and/or the amount of which remains unascertained;
|
| (vi) |
"document" includes a deed and also a letter, fax or
telex;
|
| (vii) |
"expense" means any kind of cost, charge or expense
(including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
| (viii) |
a "Finance Document", a "Security Document" or "Transaction Document" or any other
agreement or instrument is a reference to that Finance Document, Security Document or Transaction Document or other agreement or instrument as amended or novated;
|
| (ix) |
"indebtedness" includes any obligation (whether
incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
| (x) |
"law" includes any order or decree, any form of
delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
| (xi) |
"proceedings" means, in relation to any enforcement
provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
| (xii) |
a "person" includes any individual, firm, company,
corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
|
| (xiii) |
a "regulation" includes any regulation, rule, official
directive, request or guideline (either having the force of law or compliance with which is customary in the ordinary course of business) of any governmental, intergovernmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
|
| (xiv) |
a provision of law is a reference to that provision as amended or re-enacted;
|
| (xv) |
a time of day is a reference to London time;
|
| (xvi) |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing
shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
| (xvii) |
words denoting the singular number shall include the plural and vice versa; and
|
| (xviii) |
"including" and "in particular" (and other similar expressions) shall be
construed as not limiting any general words or expressions in connection with which they are used.
|
| (b) |
The determination of the extent to which a rate is "for a
period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
|
| (c) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance
Documents.
|
| (d) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has
the same meaning in that Finance Document or notice as in this Agreement.
|
| (a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by each Borrower and the Lender); or
|
| (b) |
in any other form agreed in writing between each Borrower and the Lender.
|
| (a) |
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act
1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
|
| (b) |
Subject to paragraph (c) below but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to
rescind or vary this Agreement at any time.
|
| (d) |
Any Affiliate, Receiver or Delegate may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.
|
| (a) |
Each Borrower by its execution of this Agreement irrevocably appoints the Guarantor to act on its behalf as its agent in relation to the Finance Documents and
irrevocably authorises:
|
| (i) |
the Guarantor on its behalf to supply all information concerning itself contemplated by this Agreement to the Lender and to give all notices and instructions
(including Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Borrower notwithstanding that they may affect the Borrower,
without further reference to or the consent of that Borrower; and
|
| (ii) |
the Lender to give any notice, demand or other communication to that Borrower pursuant to the Finance Documents to the Guarantor,
|
| (b) |
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the
Guarantor or given to the Guarantor under any Finance Document on behalf of a Borrower or in connection with any Finance Document (whether or not known to any Borrower) shall be binding for all purposes on that Borrower as if that
Borrower had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Guarantor and any Borrower, those of the Guarantor shall prevail.
|
| (a) |
on the date of the Utilisation Request and on the proposed Utilisation Date and before the Advance is made available:
|
| (i) |
no Event of Default or Potential Event of Default is continuing or would result from the proposed Advance;
|
| (ii) |
there has not been a Material Adverse Effect relating to an Obligor;
|
| (iii) |
the Repeating Representations to be made by each Transaction Obligor are true;
|
| (iv) |
in the case of an Advance under a Tranche, the Ship in respect of which such Advance is to be made has neither been sold nor become a Total Loss; and
|
| (b) |
in the case of the Advance under a Tranche, the Lender has received on or before the relevant Utilisation Date, or is satisfied it will receive when the
Advance is made available, all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent) in form and
substance satisfactory to the Lender.
|
| (a) |
The Borrowers may utilise the Facility by delivery to the Lender of a duly completed Utilisation Request not later than the Specified Time.
|
| (b) |
The Borrowers may not deliver more than one Utilisation Request under each Tranche.
|
| (i) |
the proposed Utilisation Date is a Business Day within the relevant Availability Period;
|
| (ii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
|
| (iii) |
the proposed Interest Period complies with Clause 9 (Interest
Periods).
|
| (a) |
The currency specified in an Utilisation Request must be dollars.
|
| (b) |
The amount of the proposed Advance must be an amount which does not exceed the amount of the relevant Tranche.
|
|
Date
|
Repayment Instalment Amount ($)
|
|
27 December 2018
|
1,552,000
|
|
26 March 2019
|
1,552,000
|
|
25 June 2019
|
1,552,000
|
|
25 September 2019
|
1,552,000
|
|
27 December 2019
|
1,552,000
|
|
26 March 2020
|
1,552,000
|
|
25 June 2020
|
1,552,000
|
|
25 September 2020
|
1,552,000
|
|
28 December 2020
|
30,976,790
|
| (i) |
the Lender shall promptly notify the Borrowers upon becoming aware of that event and the Available Facility will be immediately cancelled; and
|
| (ii) |
the Borrowers shall prepay the Loan on the last day of the Interest Period for the Loan occurring after the Lender has notified the Borrowers or, if earlier,
the date specified by the Lender in the notice delivered to the Borrowers (being no earlier than the last day of any applicable grace period permitted by law) and the Commitment shall be cancelled.
|
| (a) |
The Borrowers may, if they give the Lender not less than 5 Business Days' (or such shorter period as the Lender may agree) prior notice, cancel the whole or
any part (being a minimum amount of $250,000 or a multiple thereof) of the Available Facility. Any cancellation under this Clause 7.2 (Voluntary
and automatic cancellation) shall reduce the amount of the Commitment then unutilised rateably.
|
| (a) |
Subject to paragraph (b) below, the Borrowers may, if they give the Lender not less than 5 Business Days' (or such shorter period as the Lender may agree)
prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of $250,000 or a multiple of that amount).
|
| (c) |
Any partial prepayment under this Clause 7.3 (Voluntary
prepayment of Loan) shall reduce in inverse chronological order the amount of each Repayment Instalment falling after that prepayment by the amount prepaid.
|
| (c) |
Provided that no Event of Default has occurred and is continuing, any remaining proceeds of the sale or Total Loss of a Ship after the prepayments referred to
in paragraph (a) and paragraph (b) above have been made together with all other amounts that are payable on any such prepayment pursuant to the Finance Documents shall be paid to the Borrower that owned the relevant Ship.
|
| (d) |
In this Clause 7.4 (Mandatory prepayment on sale or Total
Loss):
|
| (i) |
in the case of a sale of a Ship, on the date on which the sale is completed by delivery of that Ship to the buyer of that Ship; and
|
| (ii) |
in the case of a Total Loss of a Ship, on the earlier of:
|
| (A) |
the date falling 90 days after the Total Loss Date; and
|
| (B) |
the date of receipt by the Lender of the proceeds of insurance relating to such Total Loss.
|
|
Relevant Percentage =
|
A x 100
|
|
|
B x 1
|
|
A
B
|
=
=
|
the Index Amount of the Ship to be sold or which becomes a Total Loss; and
the aggregate amount of the Index Amounts of the Ships (excluding any Ship already sold or which has already become a Total Loss in respect of which a
prepayment has been made under this Clause 7.4 (Mandatory prepayment on sale or Total Loss) before the Relevant Date).
|
| (e) |
Any partial prepayment of the Loan under this Clause 7.4 (Mandatory
prepayment on sale or Total Loss) shall reduce in inverse chronological order the amount of each Repayment Instalment falling after that prepayment by the amount prepaid.
|
| (b) |
The Borrowers shall give written notice to the Lender immediately upon the occurrence of a Change of Ownership.
|
| 7.6 |
Mandatory prepayment of Hedging Payment Proceeds
|
| (a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and Cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
|
| (b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and amounts (if any) payable under the Hedging
Agreement in connection with that prepayment and, subject to any Break Costs, without premium or penalty.
|
| (c) |
No Borrower may reborrow any part of the Facility which is prepaid.
|
| (d) |
No Borrower shall repay or prepay all or any part of the Loan or cancel all or any part of the Commitment except at the times and in the manner expressly
provided for in this Agreement.
|
| (e) |
No amount of the Commitment cancelled under this Agreement may be subsequently reinstated.
|
| (a) |
the then Applicable Margin; and
|
| (b) |
LIBOR
|
| (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 per cent. per annum higher than the rate which would have
applied if that Unpaid Sum had not become due.
|
| (c) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum
but will remain immediately due and payable.
|
| 8.4 |
Notification of rates of interest
|
| (a) |
On or before the first Utilisation Date, the Borrowers shall enter into the Hedging Agreement with the Lender acting as swap bank and the Lender shall have
the right of first refusal to enter into any interest rate swaps with the Borrowers for the purposes of hedging the Borrowers’ exposure under the Loan, and shall after that date maintain the Hedging Agreement in accordance with this
Clause 8.5 (Hedging).
|
| (b) |
The aggregate notional amount of the transactions in respect of the Hedging Agreement shall not exceed the Loan.
|
| (c) |
The Hedging Agreement shall:
|
| (i) |
be with the Lender (acting as swap bank);
|
| (ii) |
be for a term ending on the Termination Date;
|
| (iii) |
have settlement dates coinciding with the Interest Payment Dates;
|
| (iv) |
be in agreed form;
|
| (v) |
provide for two-way payments in the event of a termination of a transaction in respect of the Hedging Agreement, whether on a Termination Event (as defined in
the Hedging Agreement) or on an Event of Default (as defined in the Hedging Agreement); and
|
| (vi) |
provide that the Termination Currency (as defined in the Hedging Agreement) shall be dollars.
|
| (d) |
The rights of each Borrower under the Hedging Agreement shall be charged by way of security under the Hedging Agreement Security.
|
| (f) |
Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreement in accordance with paragraph (e) above will be
apportioned as between those transactions pro rata.
|
| (g) |
Paragraph (e) above shall not apply to any transactions in respect of the Hedging Agreement under which the Borrowers do not have any actual or contingent
indebtedness.
|
| (c) |
If the Borrowers fail to select an Interest Period in the first Utilisation Request or fail to deliver a Selection Notice to the Lender in accordance with
paragraphs (a) and (b) above, the relevant Interest Period will, subject to paragraph (f) below and Clause 9.2 (Changes to Interest Periods),
be three Months.
|
| (e) |
An Interest Period in respect of the Loan shall not extend beyond the Termination Date.
|
| (g) |
The first Interest Period for the Loan shall start on the first Utilisation Date and each subsequent Interest Period shall start on the last day of the
preceding Interest Period.
|
| (h) |
Except for the purposes of paragraph (f) above and Clause 9.2 (Changes to Interest Periods), the Loan shall have one Interest Period only at any time.
|
| (a) |
In respect of a Repayment Instalment, prior to determining the interest rate for the Loan, the Lender may establish an Interest Period for a part of the Loan
equal to such Repayment Instalment to end on the Repayment Date relating to it and the remaining part of the Loan shall have the Interest Period selected in the relevant Selection Notice, subject to paragraph (d) of Clause 9.1 (Selection of Interest Periods).
|
| (b) |
If after the Borrowers have selected and the Lender has agreed an Interest Period longer than six Months, the Lender notifies Borrowers within two Business
Days after the Specified Time relating to the relevant Utilisation Request or Selection Notice that it is not satisfied that deposits in dollars for a period equal to the Interest Period will be available to it in the Relevant Interbank
Market when the Interest Period commences, the Lender shall shorten the Interest Period to six Months.
|
| (c) |
If the Lender makes any change to an Interest Period referred to in this Clause 9.2 (Changes to Interest Periods), it shall promptly notify the Borrowers.
|
| (a) |
Interpolated Screen Rate: If no Screen Rate is
available for LIBOR for the Interest Period of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of the Loan or that part of the Loan.
|
| (i) |
dollars; or
|
| (ii) |
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate,
|
| (c) |
Cost of funds: If paragraph (b) above applies but no
Reference Bank Rate is available for dollars for the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause 10.4 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest Period.
|
| (a) |
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the
Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks. The Lender shall provide evidence to the Borrowers about the quotation of the Reference Banks.
|
| (i) |
the Applicable Margin; and
|
| (c) |
Any substitute or alternative basis agreed pursuant to paragraph (b) above shall, be binding on all Parties.
|
| (a) |
In this Agreement:
|
| (b) |
Unless a contrary indication appears, in this Clause 12 (Tax
Gross Up and Indemnities) reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
| (c) |
This Clause 12 (Tax Gross Up and Indemnities) shall
not apply to the Hedging Agreement.
|
| (a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
| (b) |
The Borrowers shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Lender accordingly. Similarly, the Lender shall notify the Borrowers and that Obligor on becoming so aware in respect of a payment payable to the Lender.
|
| (d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by law.
|
| (e) |
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall
deliver to the Lender evidence reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
| (i) |
with respect to any Tax assessed on the Lender:
|
| (A) |
under the law of the jurisdiction in which the Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which the Lender is treated as
resident for tax purposes; or
|
| (B) |
under the law of the jurisdiction in which the Lender's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
| (ii) |
to the extent a loss, liability or cost:
|
| (A) |
is compensated for by an increased payment under Clause 12.2 (Tax
gross-up) ; or
|
| (B) |
relates to a FATCA Deduction required to be made by a Party.
|
| (c) |
The Lender shall, if making, or intending to make, a claim under paragraph (a) above, promptly notify the Obligors of the event which will give, or has given,
rise to the claim.
|
| (a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which
that Tax Payment was received; and
|
| (b) |
the Lender has obtained and utilised that Tax Credit,
|
| (a) |
All amounts expressed to be payable under a Finance Document by any Party to the Lender which (in whole or in part) constitute the consideration for any
supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, if VAT is or becomes chargeable on any supply made by the Lender to any Party under a Finance Document and the Lender is
required to account to the relevant tax authority for the VAT, that Party must pay to the Lender (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and the
Lender must promptly provide an appropriate VAT invoice to that Party).
|
| (b) |
Where a Finance Document requires any Party to reimburse or indemnify the Lender for any cost or expense, that Party shall reimburse or indemnify (as the case
may be) the Lender for the full amount of such cost or expense, including such part of it as represents VAT, save to the extent that the Lender reasonably determines that it is entitled to credit or repayment in respect of such VAT from
the relevant tax authority.
|
| (c) |
Any reference in this Clause 12.6 (VAT) to any Party
shall, at any time when that Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that
time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) so that a
reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or
representative or head) of that group or unity at the relevant time (as the case may be).
|
| (d) |
In relation to any supply made by the Lender to any Party under a Finance Document, if reasonably requested by the Lender, that Party must promptly provide
the Lender with details of that Party's VAT registration and such other information as is reasonably requested in connection with the Lender's VAT reporting requirements in relation to such supply.
|
| (A) |
a FATCA Exempt Party; or
|
| (B) |
not a FATCA Exempt Party; and
|
| (b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware
that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
| (i) |
any law or regulation;
|
| (ii) |
any fiduciary duty; or
|
| (iii) |
any duty of confidentiality.
|
| (d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with
sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it
is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
| (a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall
be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
| (b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA
Deduction), notify the Party to whom it is making the payment.
|
| (a) |
Subject to Clause 13.3 (Exceptions), the Borrowers
shall, within five Business Days of a demand by the Lender, pay for the account of the Lender the amount of any Increased Costs incurred by the Lender or any of its Affiliates as a result of:
|
| (i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
| (ii) |
compliance with any law or regulation made,
|
| (iii) |
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV,
|
| (b) |
In this Agreement,
|
| (i) |
"Basel III" means:
|
| (A) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient
banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel
Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
| (B) |
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency
requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
| (C) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
| (ii) |
"CRD IV" means:
|
| (A) |
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment
firms and amending regulation (EU) No. 648/2012;
|
| (B) |
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential
supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and
|
| (C) |
any other law or regulation which implements Basel III or otherwise enacted by any central bank or the Bank for International Settlements (BIS).
|
| (iii) |
"Increased Costs" means:
|
| (A) |
a reduction in the rate of return from the Facility or on the Lender's (or its Affiliate's) overall capital;
|
| (B) |
an additional or increased cost; or
|
| (C) |
a reduction of any amount due and payable under any Finance Document,
|
| (a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
| (b) |
attributable to a FATCA Deduction required to be made by a Party;
|
| (c) |
compensated for by Clause 12.3 (Tax indemnity) (or
would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions
in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
|
| (d) |
attributable to the wilful breach by the Lender or its Affiliates of any law or regulation.
|
| (a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"),
or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in
which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
| (i) |
making or filing a claim or proof against that Obligor; or
|
| (ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
| (b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in
which it is expressed to be payable.
|
| (c) |
This Clause 14.1 (Currency indemnity) does not apply
to any sum due to the Lender under the Hedging Agreement.
|
| (a) |
Each Obligor shall, on demand, indemnify the Lender, any Receiver and any Delegate against:
|
| (i) |
any cost, loss or liability incurred by it as a result of:
|
| (A) |
the occurrence of any Event of Default;
|
| (B) |
a failure by a Transaction Obligor to pay any amount due under a Finance Document on its due date;
|
| (C) |
funding, or making arrangements to fund, an Advance requested by the Borrowers in a Utilisation Request but not made by reason of the operation of any one or
more of the provisions of this Agreement (other than by reason of default or negligence by the Lender alone); or
|
| (D) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrowers;
|
| (E) |
investigating any event which it reasonably believes is a Potential Event of Default or an Event of Default; or
|
| (F) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
| (G) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents; and
|
| (ii) |
any cost, loss or liability incurred by the Lender (otherwise than by reason of the Lender's gross negligence or wilful misconduct) or, in the case of any
cost, loss or liability pursuant to Clause 30.8 (Disruption to Payment Systems etc.) notwithstanding the Lender's negligence, gross
negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Lender.
|
| (c) |
No Party other than the Lender, the Receiver or the Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Lender,
the Receiver or the Delegate (as applicable) in respect of any claim it might have against the Lender, the Receiver or the
|
| (d) |
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability
incurred by each Indemnified Person in any jurisdiction:
|
| (i) |
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
| (ii) |
in connection with any Environmental Claim.
|
| (e) |
Each Obligor shall, on demand, indemnify the Lender and every Receiver and Delegate against any cost, loss or liability incurred by any of them:
|
| (i) |
in relation to or as a result of:
|
| (A) |
any failure by the Borrower to comply with its obligations under Clause 16 (Costs and Expenses);
|
| (B) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
| (C) |
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
| (D) |
the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Lender and each Receiver and Delegate by the Finance Documents
or by law;
|
| (E) |
any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
| (F) |
any action by any Transaction Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and
|
| (G) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents.
|
| (ii) |
which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise, in each
case, than by reason of the Lender's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
| (b) |
if the Lender is lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements
having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental
authority or agency which replaces all or any of their functions),
|
| 14.4 |
Lender's management time
|
| (b) |
Paragraph (a) above does not in any way limit the obligations of any Transaction Obligor under the Finance Documents.
|
| (a) |
Each Obligor shall, on demand, indemnify the Lender for all costs and expenses reasonably incurred by the Lender as a result of steps taken by it under Clause
15.1 (Mitigation).
|
| (b) |
The Lender is not obliged to take any steps under Clause 15.1 (Mitigation) if either:
|
| (i) |
An Event of Default has occurred and is continuing; or
|
| (ii) |
in the opinion of the Lender (acting reasonably), to do so might be prejudicial to it.
|
| (a) |
this Agreement and any other documents referred to in this Agreement;
|
| (b) |
the Transaction Security; and
|
| (c) |
any other Finance Documents executed after the date of this Agreement.
|
| (a) |
a Transaction Obligor requests an amendment, waiver or consent; or
|
| (b) |
an amendment is required pursuant to Clause 30.6 (Change of
currency); or
|
| (c) |
a Transaction Obligor requests, and the Lender agrees to, the release of all or any part of the Security Assets from the Transaction Security,
|
| (a) |
guarantees to the Lender punctual performance by each Borrower of all that Borrower obligations under the Finance Documents;
|
| (b) |
undertakes with the Lender that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall
immediately on demand pay that amount as if it were the principal obligor; and
|
| (c) |
agrees with the Lender that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary
obligation, indemnify the Lender immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable
by it under any Finance Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (Guarantee and Indemnity –Guarantor) if the amount claimed had been recoverable on the basis of a guarantee.
|
| (a) |
any time, waiver or consent granted to, or composition with, any Transaction Obligor or other person;
|
| (b) |
the release of any other Transaction Obligor or any other person under the terms of any composition or arrangement with any creditor;
|
| (c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up
or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Transaction Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;
|
| (d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Transaction Obligor or any other
person;
|
| (e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or
any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
| (f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
| (g) |
any insolvency or similar proceedings.
|
| (a) |
refrain from applying or enforcing any other moneys, security or rights held or received by the Lender (or any trustee or agent on its behalf) in respect of
those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
|
| (b) |
hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 17 (Guarantee and Indemnity –Guarantor).
|
| (a) |
to be indemnified by a Transaction Obligor;
|
| (b) |
to claim any contribution from any third party providing security for, or any other guarantor of, any Transaction Obligor's obligations under the Finance
Documents;
|
| (c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Lender under the Finance Documents or of any
other guarantee or security taken pursuant to, or in connection with, the Finance Documents by the Lender;
|
| (d) |
to bring legal or other proceedings for an order requiring any Transaction Obligor to make any payment, or perform any obligation, in respect of which the
Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);
|
| (e) |
to exercise any right of set-off against any Transaction Obligor; and/or
|
| (f) |
to claim or prove as a creditor of any Transaction Obligor in competition with the Lender.
|
| (a) |
this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower;
|
| (b) |
the Lender entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower;
|
| (c) |
the Lender releasing any other Borrower or any Security created by a Finance Document; or
|
| (d) |
any time, waiver or consent granted to, or composition with any other Borrower or other person;
|
| (e) |
the release of any other Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
| (f) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over
assets of, any other Borrower or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
| (g) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any other Borrower or any other
person;
|
| (h) |
any amendment, novation, supplement, extension, restatement (however fundamental, and whether or not more onerous) or replacement of a Finance Document or any
other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
| (i) |
any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or
|
| (j) |
any insolvency or similar proceedings.
|
| (i) |
claim any amount which may be due to it from any other Borrower whether in respect of a payment made under, or matter arising out of, this Agreement or any
Finance Document, or any matter unconnected with this Agreement or any Finance Document; or
|
| (ii) |
take or enforce any form of security from any other Borrower for such an amount, or in any way seek to have recourse in respect of such an amount against any
asset of any other Borrower; or
|
| (iii) |
set off such an amount against any sum due from it to any other Borrower; or
|
| (iv) |
prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving any other Borrower; or
|
| (v) |
exercise or assert any combination of the foregoing.
|
| (a) |
to be indemnified by any other Borrower; or
|
| (b) |
to claim any contribution from any other Borrower in relation to any payment made by it under the Finance Documents.
|
| (a) |
It is a corporation duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
| (b) |
It and each Transaction Obligor has the power to own its assets and carry on its business as it is being conducted.
|
| (a) |
Borrower A has an authorised share capital of 500 registered shares of no par value, all of which shares have been issued in registered form and held by the
Guarantor.
|
| (b) |
Borrower B has an authorised share capital of 500 registered shares of no par value, all of which shares have been issued in registered form and held by the
Guarantor.
|
| (c) |
The legal title to and beneficial interest in the shares in each Borrower is held free of any Security or any other claim by the Guarantor.
|
| (d) |
None of the shares in any Borrower is subject to any option to purchase, pre-emption rights or similar rights.
|
| (a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration as provided
for in that Finance Document create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
| (b) |
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
| (c) |
The Transaction Security granted by it to the Lender has or will when created or intended to be created have first ranking priority or such other priority it
is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking security.
|
| (d) |
No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security.
|
| (b) |
its constitutional documents; or
|
| (c) |
any agreement or instrument binding upon it or any of its assets or constitute a default or termination event (however described) under any such agreement or
instrument.
|
| 19.7 |
Power and authority
|
| (a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
| (i) |
its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those
Transaction Documents; and
|
| (ii) |
in the case of a Borrower, the registration of its Ship under its Approved Flag;.
|
| (b) |
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the
Transaction Documents to which it is a party.
|
| (a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and
|
| (b) |
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
| (a) |
The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
| (b) |
Any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will
be recognised and enforced in its Relevant Jurisdictions.
|
| (a) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.8 (Insolvency proceedings); or
|
| (b) |
creditors' process described in Clause 27.9 (Creditors'
process),
|
| (a) |
On the date of this Agreement and on each Utilisation Date, no Event of Default which is continuing or might reasonably be expected to result from the making
of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
| (b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument
which is binding on it or to which its assets are subject which might have a Material Adverse Effect.
|
| (a) |
Any factual information provided by any member of the Group for the purposes of this Agreement was true and accurate in all material respects as at the date
it was provided or as at the date (if any) at which it is stated.
|
| (b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable
assumptions.
|
| (c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in any such information being untrue
or misleading in any material respect.
|
| (a) |
Its most recent financial statements delivered pursuant to Clause 20.2 (Financial statements):
|
| (i) |
have been prepared in accordance with Clause 20.4 (Requirements
as to financial statements); and
|
| (ii) |
give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition as at the end of the relevant financial year and
operations during the relevant financial year (consolidated in the case of the Guarantor).
|
| (b) |
Since the date of the most recent financial statements delivered pursuant to Clause 20.2 (Financial statements) there has been no material adverse change in its business, assets or financial condition (or the business or consolidated financial condition of the Group, in the case of the
Guarantor).
|
| (a) |
Each MOA and any Assignable Charter being in force at any relevant time constitutes legal, valid, binding and enforceable obligations of the relevant Seller
and Charterer (as the context may require).
|
| (b) |
The copies of the MOA and of any Assignable Charter delivered to the Lender before the date of this Agreement are true and complete copies.
|
| (c) |
No amendments or additions to the MOA or Assignable Charter have been agreed nor have any rights under the MOA or Assignable Charter been waived.
|
| (b) |
It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer.
|
| (c) |
There has been no change to the factual information provided pursuant to paragraph (a) above in relation to any valuation between the date such information
was provided and the date of that valuation which, in either case, renders that information untrue or misleading in any material respect.
|
| (a) |
It is not and no other member of the Group is materially overdue in the filing of any Tax returns and it is not (and no other member of the Group is) overdue
in the payment of any amount in respect of Tax.
|
| (b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it (or any other member of the Group) with respect to Taxes.
|
| (a) |
With effect on and from the relevant Delivery Date, each Borrower will be the sole legal and beneficial owner of its Ship, its Earnings and its Insurances.
|
| (b) |
With effect on and from the date of its creation or intended creation, each Transaction Obligor will be the sole legal and beneficial owner of any asset
that is the subject of any Transaction Security created or intended to be created by such Transaction Obligor.
|
| (c) |
The constitutional documents of each Transaction Obligor do not and could not restrict or inhibit any transfer of the shares of the Borrowers on creation or
enforcement of the security conferred by the Security Documents.
|
| 19.32 |
Ownership of Guarantor
|
| 19.33 |
Centre of main interests and establishments
|
| (a) |
No Transaction Obligor:
|
| (i) |
is a Prohibited Person;
|
| (ii) |
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person;
|
| (iii) |
owns or controls a Prohibited Person; or
|
| (iv) |
has a Prohibited Person serving as a director, officer or, to the best of its knowledge, employee.
|
| (b) |
No proceeds of the Loan or any part of the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person nor shall they
be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
| 19.37 |
US Tax Obligor
|
| (i) |
each Borrower’s respective unaudited financial statements for that financial year; and
|
| (i) |
each Borrower’s respective unaudited financial statements for that financial quarter year; and
|
| (c) |
as soon as they become available, but in any event within 60 days after the end of each of their respective financial years, budgets in a format approved by
the Lender evidencing (a) the Group’s future five-year cash flow projections and the annual Operating Expenses of the Group Ships and (b) the General and Administrative expenses relating to the day-to-day operations of the Group’s
business for that financial year, commencing from the financial year ending 31 December 2015; and
|
| (d) |
from time to time, promptly upon the Lender’s reasonable request, such further financial or other information in respect of the Borrowers, the Ships, the
Transaction Obligors and the other members of the Group.
|
| (a) |
The Guarantor shall supply to the Lender, with each set of financial statements delivered pursuant to sub-paragraph (ii) of paragraph (a) or sub-paragraph
(ii) of paragraph (b) of Clause 20.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail)
computations as to compliance with (A) Clause 21 (Financial Covenants) as at the date as at which those financial statements were
drawn up (and, in respect of Clause 21.1(a) and (b),
|
| (b) |
Each Compliance Certificate shall be signed by the Chief Financial Officer of the Guarantor.
|
| (a) |
Each set of financial statements delivered by a Borrower pursuant to Clause 20.2 (Financial statements) shall be certified by an officer of the relevant company as giving a true and fair view (if audited) or fairly representing (if unaudited) its financial condition and operations as at
the date as at which those financial statements were drawn up.
|
| (b) |
The Borrowers shall procure that each set of financial statements delivered pursuant to Clause 20.2 (Financial statements) is prepared using GAAP.
|
| (c) |
The Borrowers shall procure that each set of financial statements of an Obligor delivered pursuant to Clause 20.2 (Financial statements) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial
Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Lender that there has been a change in GAAP, the accounting practices or reference periods and its auditors (or, if appropriate, the
auditors of the Obligor) deliver to the Lender:
|
| (i) |
a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which that Obligor's
Original Financial Statements were prepared; and
|
| (ii) |
sufficient information, in form and substance as may be reasonably required by the Lender, enable the Lender to determine whether Clause 21 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial
statements and that Obligor's Original Financial Statements.
|
| (a) |
Each Borrower shall supply to the Lender all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time
as they are dispatched; and
|
| (b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings or investigations (including proceedings or
investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any member of the Group, and which might, if adversely determined, have a Material Adverse
Effect;
|
| (c) |
promptly, its constitutional documents where these have been amended or varied;
|
| (d) |
promptly, such further information and/or documents regarding:
|
| (i) |
each Ship, goods transported on each Ship, its Earnings and its Insurances;
|
| (ii) |
the Security Assets;
|
| (iii) |
compliance of the Obligors with the terms of the Finance Documents;
|
| (iv) |
the financial condition, business and operations of any member of the Group,
|
| (e) |
promptly, such further information and/or documents as the Lender may reasonably request so as to enable the Lender to comply with any laws applicable to it
or as may be required by any regulatory authority.
|
| (a) |
Each Obligor shall notify the Lender of any Event of Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence
(unless that Obligor is aware that a notification has already been provided by another Obligor).
|
| (b) |
Promptly upon a request by the Lender, each Borrower shall supply to the Lender a certificate signed by an officer on its behalf certifying that no Event of
Default is continuing (or if an Event of Default is continuing, specifying the Event of Default and the steps, if any, being taken to remedy it).
|
| (a) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
| (b) |
any change in the status of a Transaction Obligor (including, without limitation, a change of ownership of a Transaction Obligor) after the date of this
Agreement;
|
| (d) |
any internal requirement,
|
| (i) |
at any time during the period commencing on 1 May 2018 and ending on 31 December 2018 (inclusive), 85 per cent.;
|
| (ii) |
at any time during the period commencing on 1 January 2019 and ending on 31 March 2019 (inclusive), 80 per cent.; and
|
| (iii) |
from 1 April 2019 and at all times thereafter and throughout the remainder of the Security Period, 75 per cent;
|
| (i) |
at any time during the period commencing on 1 May 2018 and ending on 31 March 2019 (inclusive), 1.20:1; and
|
| (ii) |
from 1 April 2019 and at all times thereafter and throughout the remainder of the Security Period, 2:1; and
|
| (a) |
adding back Net Interest Expense;
|
| (b) |
adding back depreciation and amortisation;
|
| (c) |
adding back any non-cash expenses and non-cash losses;
|
| (d) |
deducting any non-cash income and non-cash gains;
|
| (e) |
taking no account of any exceptional or extraordinary item;
|
| (f) |
taking no account of any revaluation of an asset or any loss or gain over book value arising on the disposal of an asset by a member of the Group during that
Rolling Period; and
|
| (g) |
adding back the expenses of the special and intermediate surveys, in case these expenses are not capitalized.
|
| (a) |
as at not more than 14 Business Days previously;
|
| (c) |
with or without physical inspection of the Fleet Ships;
|
| (d) |
on the basis of a sale for prompt delivery for cash on normal arm’s length commercial terms as between a willing seller and a willing buyer free of any
charter;
|
| (a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
| (b) |
supply certified copies to the Lender of,
|
| (i) |
perform its obligations under the Transaction Documents to which it is a party;
|
| (ii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of
each Ship of any Transaction Document to which it is a party; and
|
| (iii) |
own and operate each Ship (in the case of the Borrowers).
|
| (a) |
comply with all Environmental Laws;
|
| (b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals;
|
| (c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
| (a) |
any Environmental Claim against any member of the Group which is current, pending or threatened; and
|
| (b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group,
|
| (a) |
Each Obligor shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the
extent that:
|
| (i) |
such payment is being contested in good faith;
|
| (ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them have been disclosed in its latest financial statements delivered to
the Lender under Clause 20.2 (Financial statements); and
|
| (iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
| (b) |
No Obligor shall change its residence for Tax purposes.
|
| 22.8 |
No change to centre of main interests
|
| (a) |
From the Utilisation Date of the Advance under the relevant Tranche, each Borrower shall hold the legal title to, and own the entire beneficial interest in
its Ship, its Earnings and its Insurances.
|
| (b) |
With effect on and from its creation or intended creation, each Obligor shall hold the legal title to, and own the entire beneficial interest in any other
assets the subject of any Transaction Security created or intended to be created by such Obligor.
|
| (i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Transaction Obligor;
|
| (ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
| (iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts;
or
|
| (iv) |
enter into any other preferential arrangement having a similar effect,
|
| (c) |
Paragraphs (a) and (b) above do not apply to any Permitted Security.
|
| (b) |
Paragraph (a) above does not apply to any Permitted Charter.
|
| 22.15 |
Change of business
|
| (a) |
The Guarantor shall procure that no substantial change is made to the general nature of the business of the Guarantor or the Group from that carried on at the
date of this Agreement.
|
| (b) |
No Borrower shall engage in any business other than the ownership and operation of its Ship.
|
| 22.17 |
No other liabilities or obligations to be incurred
|
| (i) |
liabilities and obligations under the Finance Documents (including, without limitation, under the Hedging Agreement);
|
| (ii) |
liabilities or obligations reasonably incurred in the normal course of its business of trading, operating and chartering, maintaining and repairing the Ship
owned by it (including, without limitation, any shareholder loan subject to the relevant Borrower ensuring, on or prior to the date of the first advance of that loan, that the rights of the shareholder which is the provider of that loan
are fully subordinated to the rights of the Lender under the Finance Documents in writing and upon such terms and conditions as shall be required by the Lender but excluding any investments, any sale or lease back agreements and any
off-balance-sheet obligations); and
|
| (iii) |
any guarantee and indemnity granted or to be granted by the Guarantor or any other liability or obligation incurred by the Guarantor in its ordinary course of
business.
|
| (a) |
purchase, cancel or redeem any of its share capital;
|
| (b) |
increase or reduce its authorised share capital;
|
| (c) |
issue any further shares except to the Guarantor and provided such new shares are made subject to the terms of the Shares Security applicable to that Borrower
immediately upon the issue of such new shares in a manner satisfactory to the Lender and the terms of that Shares Security are complied with;
|
| (d) |
appoint any further director or officer of that Borrower (unless the provisions of the Shares Security applicable to that Borrower are complied with).
|
| (a) |
be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is Permitted
Financial Indebtedness;
|
| (b) |
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into
any document under which that Borrower assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents.
|
| (c) |
enter into any material agreement other than:
|
| (i) |
the Transaction Documents;
|
| (ii) |
any other agreement expressly allowed under any other term of this Agreement; and
|
| (d) |
enter into any transaction on terms which are, in any respect, less favourable to that Borrower than those which it could obtain in a bargain made at arms'
length; or
|
| (e) |
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks, unless
any such transactions are incurred in that Borrower’s normal course of business.
|
| (a) |
make it unlawful for a Transaction Obligor to perform any of its obligations under the Transaction Documents;
|
| (b) |
cause any obligation of a Transaction Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable if that cessation
individually or together with any other cessations materially or adversely affects the interests of the Lender under the Finance Documents;
|
| (c) |
cause any Transaction Document to cease to be in full force and effect;
|
| (d) |
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
| (e) |
imperil or jeopardise the Transaction Security.
|
| (a) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly, and in any event within the time period specified by the Lender do
all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges,
notices, instructions, acknowledgments, proxies and powers of attorney), as the Lender may specify (and in such form as the Lender may require in favour of the Lender or its nominee(s)):
|
| (i) |
to create, perfect, vest in favour of the Lender or protect the priority of the Security or any right of any kind created or intended to be created under or
evidenced by the Finance Documents (which may include the execution of a mortgage, charge,
|
| (ii) |
to confer on the Lender Security over any property and assets of that Transaction Obligor located in any jurisdiction equivalent or similar to the Security
intended to be conferred by or pursuant to the Finance Documents;
|
| (iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are,
or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
| (iv) |
to enable or assist the Lender to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any
item of the Security Property.
|
| (b) |
Each Obligor shall, and shall procure that each other Transaction Obligor will, take all such action as is available to it (including making all filings and
registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Lender by or pursuant to the Finance Documents.
|
| (c) |
At the same time as an Obligor delivers to the Lender any document executed by itself or another Transaction Obligor pursuant to this Clause 22.25 (Further assurance), that Obligor
shall deliver, or shall procure that such other Transaction Obligor will deliver, to the Lender a certificate signed by an officer of that Obligor or Transaction Obligor which shall:
|
| (i) |
set out the text of a resolution of that Obligor's or Transaction Obligor's directors specifically authorising the execution of the document specified by the
Lender; and
|
| (ii) |
reasonable evidence that that Obligor's or Transaction Obligor's execution of such document has been duly authorised by it.
|
| (a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
| (b) |
war risks;
|
| (c) |
protection and indemnity risks; and
|
| (d) |
any other risks against which the Lender considers, having regard to practices and other circumstances prevailing at the relevant time, it would be reasonable
for that Borrower to insure and which are specified by the Lender by notice to that Borrower.
|
| (a) |
in dollars;
|
| (b) |
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of:
|
| (i) |
120 per cent. of the Loan; and
|
| (ii) |
the aggregate Market Value of the Ships subject to a Mortgage;
|
| (c) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection
and indemnity club entry and in the international marine insurance market;
|
| (d) |
in the case of protection and indemnity risks, in respect of the full tonnage of its Ship;
|
| (e) |
on approved terms; and
|
| (f) |
through Approved Brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in
approved war risks and protection and indemnity risks associations.
|
| (a) |
subject always to paragraph (b), name that Borrower as the sole named insured unless the interest of every other named insured is limited:
|
| (i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
| (A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
| (B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against
it); and
|
| (ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following
discharge of any third party liability claims made specifically against it;
|
| (c) |
name the Lender as loss payee with such directions for payment as the Lender may specify;
|
| (d) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Lender shall be made without set off, counterclaim or
deductions or condition whatsoever;
|
| (e) |
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Lender; and
|
| (f) |
provide that the Lender may make proof of loss if that Borrower fails to do so.
|
| (ii) |
obtain the Lender's approval to the matters referred to in sub-paragraph (i) of paragraph (a) above;
|
| (b) |
at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Lender's approval pursuant to paragraph
(a) above; and
|
| (c) |
procure that the Approved Brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected shall promptly
after the renewal notify the Lender in writing of the terms and conditions of the renewal.
|
| (a) |
pro forma copies of all policies relating to the
obligatory insurances which they are to effect or renew; and
|
| (i) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 23.4
(Further protections for the );
|
| (ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Lender in accordance with such loss payable clause;
|
| (iv) |
they will, if they have not received notice of renewal instructions from the relevant Borrower or its agents, notify the Lender not less than 14 days before
the expiry of the obligatory insurances;
|
| (v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Lender of the terms of the instructions;
|
| (vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any
premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other
amounts and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts; and
|
| (vii) |
they will arrange for a separate policy to be issued in respect of the Ship owned by that Borrower forthwith upon being so requested by the Lender.
|
| (a) |
a certified copy of the certificate of entry for that Ship;
|
| (b) |
a letter or letters of undertaking in such form as may be required by the Lender; and
|
| (c) |
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant
certifying authority in relation to that Ship.
|
| (b) |
Without limiting paragraph (a) above, each Borrower shall:
|
| (i) |
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the
obligation contained in sub-paragraph (iii) of paragraph (b) of Clause 23.6 (Copies of policies; letters of undertaking)) ensure
that the obligatory insurances are not made subject to any exclusions or qualifications to which the Lender has not given its prior approval;
|
| (ii) |
not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of
the obligatory insurances;
|
| (iii) |
make (and promptly supply copies to the Lender of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks
association in which the Ship owned by it is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation);
and
|
| (iv) |
not employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without
first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
| (a) |
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and
|
| (b) |
do all things necessary and provide all documents, evidence and information to enable the Lender to collect or recover any moneys which at any time become
payable in respect of the obligatory insurances.
|
| (c) |
the approved insurance companies and/or underwriters,
|
| (i) |
that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional
premiums or calls; and
|
| (ii) |
any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the
effecting or maintenance of the obligatory insurances.
|
| (b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 23.16 (Mortgagee's interest additional perils insurances) or dealing with or considering any matters relating to any such insurances,
|
| (a) |
The Lender shall be entitled from time to time to effect, maintain and renew a mortgagee's interest marine insurance (“MII”) and a mortgagee's interest additional perils insurance (“MAPI”)
(a) in the case of MII, in an amount on an agreed value basis at least equal to 110 per cent. of the Loan and (b) in the case of MAPI, in an amount on an agreed value basis at least equal to 120 per cent. per cent. of the Loan, in each
case, on such terms, through such insurers and generally in such manner as the Lender may from time to time consider appropriate
|
| (b) |
The Borrowers shall upon demand fully indemnify the Lender in respect of all premiums and other expenses which are incurred in connection with or with a view
to effecting, maintaining or renewing any insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
| (a) |
keep that Ship registered in its name under the Approved Flag from time to time at its port of registration;
|
| (b) |
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and
|
| (c) |
not change the name of that Ship,
|
| (i) |
that Ship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on that Ship and, if
appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage on that Ship and related Deed of Covenant and on such other terms and in
such other form as the Lender shall approve or require; and
|
| (ii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Lender shall approve or require.
|
| (a) |
consistent with first class ship ownership and management practice; and
|
| (b) |
so as to maintain the Approved Classification free of overdue recommendations and conditions.
|
| (a) |
to send to the Lender, following receipt of a written request from the Lender, certified true copies of all original class records held by the Approved
Classification Society in relation to that Ship;
|
| (b) |
to allow the Lender (or its agents), at any time and from time to time, to inspect the original class and related records of that Borrower and that Ship at
the offices of the Approved Classification Society and to take copies of them;
|
| (c) |
to notify the Lender immediately in writing if the Approved Classification Society:
|
| (i) |
receives notification from that Borrower or any person that that Ship's Approved Classification Society is to be changed; or
|
| (ii) |
becomes aware of any facts or matters which may result in or have resulted in a change, suspension, discontinuance, withdrawal or expiry of that Ship's class
under the rules or terms and conditions of that Borrower or that Ship's membership of the Approved Classification Society;
|
| (d) |
following receipt of a written request from the Lender:
|
| (i) |
to confirm that that Borrower is not in default of any of its contractual obligations or liabilities to the Approved Classification Society, including
confirmation that it has paid in full all fees or other charges due and payable to the Approved Classification Society; or
|
| (ii) |
to confirm that that Borrower is in default of any of its contractual obligations or liabilities to the Approved Classification Society, to specify to the
Lender in reasonable detail the facts and circumstances of such default, the consequences of such default, and any remedy period agreed or allowed by the Approved Classification Society.
|
| (a) |
Subject to paragraph (b) below, no Borrower shall remove any material part of any Ship, or any item of equipment installed on any Ship unless:
|
| (i) |
the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item
removed;
|
| (ii) |
the replacement part or item is free from any Security in favour of any person other than the Lender; and
|
| (iii) |
the replacement part or item becomes, on installation on that Ship, the property of that Borrower and subject to the security constituted by the Mortgage on
that Ship and the related Deed of Covenant.
|
| (a) |
Each Borrower shall, in respect of the Ship owned by it, promptly discharge:
|
| (i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances;
|
| (ii) |
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and
|
| (iii) |
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
|
| (b) |
Each Borrower shall immediately and, forthwith upon receiving notice of the arrest of the Ship owned by it or of its detention in exercise or purported
exercise of any lien or claim, procure its release by providing bail or otherwise as the circumstances may require.
|
| (i) |
relating to its business generally; and
|
| (ii) |
relating to the Ship owned by it, its ownership, employment, operation, management and registration,
|
| (b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals; and
|
| (a) |
procure that the Ship owned by it and the company responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
| (b) |
maintain an ISSC for that Ship; and
|
| (c) |
notify the Lender immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
| (a) |
that the Ship shall not be used by or for the benefit of a Prohibited Person;
|
| (b) |
that the Ship shall not be used in trading in any manner contrary to Sanctions (or which could be contrary to Sanctions if Sanctions were binding on each
Transaction Obligor);
|
| (c) |
that the Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the
Insurances or otherwise traded in areas prohibited by either (i) the law applicable to that Ship's flag or (i) the applicable law of the country of incorporation of the Borrower owning that Ship or (iii) the applicable law of the
nationality of the officers and crew of that Ship; and
|
| (d) |
that each charterparty in respect of the Ship shall contain, for the benefit of the Borrower, language which gives effect to the provisions of paragraph (c)
of Clause 24.10 (Compliance with laws etc.) as regards Sanctions and of this Clause 24.12 (Sanctions and Ship trading) and which permits refusal of employment or voyage orders if compliance would result in a breach of Sanctions (or which could be
contrary to Sanctions if Sanctions were binding on each Transaction Obligor).
|
| (a) |
the prior written consent of the Lender has been given; and
|
| (b) |
that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Lender may require.
|
| (a) |
that Ship, its employment, position and engagements;
|
| (b) |
the Earnings and payments and amounts due to its master and crew;
|
| (c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it in
respect of that Ship;
|
| (d) |
any towages and salvages; and
|
| (e) |
its compliance, the Approved Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code,
|
| (a) |
any casualty to that Ship which is or is likely to be or to become a Major Casualty;
|
| (b) |
any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
| (c) |
any requisition of that Ship for hire;
|
| (d) |
any overdue requirement or recommendation made in relation to that Ship by any insurer or classification society or by any competent authority which is not
immediately complied with within the time limits allowed by such insurer or the relevant classification society or authority;
|
| (e) |
any arrest or detention of that Ship, any exercise or purported exercise of any lien on that Ship or the Earnings or any requisition of that Ship for hire;
|
| (f) |
any intended dry docking of that Ship;
|
| (g) |
any Environmental Claim made against that Borrower or in connection with that Ship, or any Environmental Incident;
|
| (h) |
any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, an Approved Manager or otherwise in connection with that Ship; or
|
| (i) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
| (a) |
let that Ship on demise charter for any period (without the Lender’s prior written consent, not to be unreasonably withheld);
|
| (b) |
enter into any time, voyage or consecutive voyage charter in respect of that Ship other than a Permitted Charter;
|
| (c) |
amend, supplement or terminate a Management Agreement;
|
| (d) |
appoint a manager of that Ship other than the Approved Commercial Manager and the Approved Technical Manager or agree to any alteration to the terms of an
Approved Manager's appointment (without the Lender’s prior written consent, not to be unreasonably withheld);
|
| (e) |
de activate or lay-up that Ship without the Lender’s prior written consent (not to be unreasonably withheld); or
|
| (f) |
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $500,000 in relation to
Ship A, or Ship B (or, in each case, the equivalent in any other currency) unless that person has first given to the Lender and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for
the cost of such work or for any other reason.
|
| (a) |
at any time during the period commencing on 1 May 2018 and ending on 30 September 2018 (inclusive), that the Security Cover Ratio is below 100 per cent.;
|
| (b) |
at any time during the period commencing on 1 October 2018 and ending on 30 June 2019 (inclusive), that the Security Cover Ratio is below 111 per cent.; and
|
| (c) |
from 1 July 2019 and at all times thereafter and throughout the remainder of the Security Period, that the Security Cover Ratio is below 120 per cent.
|
| (b) |
A Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or ensure that a third party has provided, additional security
(including, without limitation, cash pledged in favour of the Lender) which, in the opinion of the Lender:
|
| (i) |
has a net realisable value at least equal to the shortfall; and
|
| (ii) |
is documented in such terms as the Lender may approve or require,
|
| (b) |
If a Borrower fails to provide the information referred to in paragraph (a) above by the date specified in the request, the valuation may be made on any basis
and assumptions which the shipbroker or the Lender considers prudent.
|
| (a) |
for the purposes of Clause 25.1 (Minimum required security
cover) and Clause 8.1 (Calculation of interest) each Borrower shall provide the Lender with a valuation of the Ship owned
by it or that will be owned by it on the relevant Utilisation Date and any other vessel over which additional Security has been created in accordance with Clause 25.2 (Provision of additional security; prepayment), from an Approved Valuer, to enable the Lender to determine the aggregate Market Value of the Ships;
|
| (b) |
for the purposes of enabling the Lender to determine the Fleet Market Value pursuant to Clause 21.2 (Financial covenants), the Borrowers shall provide the Lender, together with each Compliance Certificate pursuant to Clause 20.3 (Compliance Certificate), with a valuation in respect of each Fleet Ship from an Approved Valuer, each addressed to the Lender.
|
| 25.8 |
Frequency of valuations
|
| (a) |
subject only to the provisions of the General Assignment to which it is a party, all the Earnings in respect of the Ship owned by it are paid in to an
Earnings Account held in the name of that Borrower; and
|
| (b) |
all payments to that Borrower under the Hedging Agreement are paid to an Earnings Account held in the name of that Borrower
|
| (a) |
comply with any requirement of the Lender as to the location or relocation of its Earnings Accounts; and
|
| (b) |
execute any documents which the Lender specifies to create or maintain in favour of the Lender Security over (and/or rights of set-off, consolidation or other
rights in relation to) the Earnings Accounts.
|
| (a) |
its failure to pay is caused by:
|
| (i) |
administrative or technical error; or
|
| (ii) |
a Disruption Event; and
|
| (b) |
payment is made within 3 Business Days of its due date.
|
| (b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 3 Business Days of the Lender
giving notice to the Borrowers or (if earlier) any Obligor or Approved Manager becoming aware of the failure to comply.
|
| (b) |
Any Financial Indebtedness of any Transaction Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an
event of default (however described).
|
| (c) |
Any commitment for any Financial Indebtedness of any Transaction Obligor is cancelled or suspended by a creditor of any Transaction Obligor as a result of an
event of default (however described).
|
| (a) |
A Transaction Obligor:
|
| (i) |
is unable or admits inability to pay its debts as they fall due;
|
| (ii) |
is deemed to, or is declared to, be unable to pay its debts under applicable law;
|
| (iii) |
suspends or threatens to suspend making payments on any of its debts; or
|
| (iv) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding the Lender in its capacity as
such) with a view to rescheduling any of its indebtedness.
|
| (b) |
Commencing as of the Accounting Period ending on 30 September 2017 or at any time thereafter, the value of the assets of any Transaction Obligor is less than
its liabilities (taking into account contingent and prospective liabilities).
|
| (c) |
A moratorium is declared in respect of any indebtedness of any Transaction Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any
Event of Default caused by that moratorium.
|
| (i) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of any Transaction Obligor;
|
| (ii) |
a composition, compromise, assignment or arrangement with any creditor of any Transaction Obligor;
|
| (iii) |
the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Transaction
Obligor or any of its assets; or
|
| (iv) |
enforcement of any Security over any assets of any Transaction Obligor,
|
| (b) |
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 Business Days
of commencement.
|
| (a) |
An Obligor (other than the Guarantor) is not or ceases to be a 100 per cent. directly owned Subsidiary of the Guarantor.
|
| (c) |
For the purpose of paragraph (b) above "control" means:
|
| (i) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
| (A) |
cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of the Guarantor; or
|
| (B) |
appoint or remove all, or the majority, of the directors or other equivalent officers of the Guarantor; or
|
| (C) |
give directions with respect to the operating and financial policies of the Guarantor with which the directors or other equivalent officers of the Guarantor
are obliged to comply; and/or
|
| (ii) |
the holding beneficially of more than 50 per cent. of the issued share capital of the Guarantor (excluding any part of that issued share capital that carries
no right to participate beyond a specified amount in a distribution of either profits or capital).
|
| (d) |
For the purpose of paragraph (b) above "acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal or
informal), actively co-operate, through the acquisition directly of shares in the Guarantor by any of them, either directly or indirectly, to obtain or consolidate control of the Guarantor.
|
| 27.11 |
Unlawfulness, invalidity and ranking
|
| (a) |
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents.
|
| (b) |
Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
| (c) |
Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to be determined or any Transaction Security is alleged by a
party to it (other than the Lender) to be ineffective.
|
| (d) |
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
| (a) |
The Lender shall not be required to consult with, or obtain the Borrowers’ prior written consent unless any transfer or assignment under Clause 28.1 is to a
New Lender, which does not hold a banking license, in which case the Borrowers’ prior written consent shall be required (and shall not be unreasonably withheld).
|
| (b) |
The consent of the Borrowers to an assignment pursuant to this Clause 28.2 must not be unreasonably withheld or delayed. Each Borrower will be deemed to have
given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by that Borrower within that time.
|
| (i) |
the Existing Lender assigns any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
| (ii) |
as a result of circumstances existing at the date the assignment or change occurs, an Obligor would be obliged to make a payment to the New Lender or the
Existing Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities) or under that clause as
incorporated by reference or in full in any other Finance Document or Clause 13 (Increased Costs),
|
| (d) |
Each Obligor agrees that all rights and interests (present, future or contingent) which the Existing Lender has under or by virtue of the Finance Documents
are assigned to the New Lender absolutely, free of any defects in the Existing Lender's title and of any rights or equities which the Borrower or any other Obligor had against the Existing Lender.
|
| (a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
| (b) |
if the Lender is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or
securities issued, by the Lender as security for those obligations or securities,
|
| (i) |
release the Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for
the Lender as a party to any of the Finance Documents; or
|
| (ii) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or
granted to the Lender under the Finance Documents.
|
| (a) |
the date on which the Lender dispatches the notice; and
|
| (b) |
the date, if any, specified in the notice as the date on which the change will come into effect.
|
| (a) |
On each date on which a Transaction Obligor is required to make a payment under a Finance Document, that Transaction Obligor shall make an amount equal to
such payment available to the Lender (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Lender as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
|
| (b) |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial
centre in such Participating Member State or London, as specified by the Lender) and with such bank as the Lender, in each case, specifies.
|
| (b) |
Paragraph (a) above will override any appropriation made by a Transaction Obligor.
|
| (b) |
Paragraph (a) above shall not affect the operation of any payment or close-out netting in respect of any amounts owing under the Hedging Agreement.
|
| (a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day (if there is not).
|
| (b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at
the rate payable on the original due date.
|
| (a) |
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from a Transaction Obligor under any Finance Document.
|
| 30.6 |
Change of currency
|
| (a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the
lawful currency of that country, then:
|
| (i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into,
or paid in, the currency or currency unit of that country designated by the Lender (after consultation with the Borrowers); and
|
| (ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded up or down by the Lender (acting reasonably).
|
| (b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Lender (acting reasonably and after consultation with the Borrowers)
specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
| (b) |
the Lender shall not be obliged to consult with the Borrowers in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
| 32 |
CONDUCT OF BUSINESS BY THE LENDER
|
| (a) |
interfere with the right of the Lender to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
| (b) |
oblige the Lender to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
| (c) |
oblige the Lender to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
| (a) |
in the case of the Borrowers, that specified in Schedule 1 (The
Parties); and
|
| (b) |
in the case of any other Obligor or the Lender, that specified in Schedule 1 (The Parties) or, if it becomes a Party after the date of this Agreement, that notified in writing to the Lender on or before the date on which it becomes a Party;
|
| (i) |
if by way of fax, when received in legible form; or
|
| (ii) |
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope
addressed to it at that address,
|
| (b) |
Any communication or document to be made or delivered to the Lender will be effective only when actually received by it and then only if it is expressly
marked for the attention of the department or officer of the Lender specified in Schedule 1 (The Parties) (or any substitute
department or officer as the Lender shall specify for this purpose).
|
| (d) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (c) above, after 5.00 p.m. in the place of receipt shall be deemed
only to become effective on the following day.
|
| (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
|
| (d) |
Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5.00 p.m. in the place in which the Party to whom the
relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.
|
| (e) |
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in
accordance with this Clause 33.4 (Electronic communication).
|
| (a) |
Any notice given under or in connection with any Finance Document must be in English.
|
| (b) |
All other documents provided under or in connection with any Finance Document must be:
|
| (i) |
in English; or
|
| (ii) |
if not in English, and if so required by the Lender, accompanied by a certified English translation prepared by a translator approved by the Lender and, in
this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
| (viii) |
who is a Party, a member of the Group or any related entity of a Transaction Obligor;
|
| (ix) |
as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance
Document; or
|
| (x) |
with the consent of the Guarantor;
|
| (A) |
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the
Confidential Information;
|
| (B) |
in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality
Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
| (C) |
in relation to sub-paragraphs (v), (vi) and (vii) of paragraph (b) above, the person to whom the Confidential Information is to be given is informed of its
confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Lender, it is not practicable so to do in the
circumstances;
|
| (d) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to
carry out its normal rating activities in relation to the Finance Documents and/or the Transaction Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or
all of such Confidential Information may be price-sensitive information.
|
| 39.4 |
Inside information
|
| (a) |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (v) of paragraph (b) of Clause 39.2 (Disclosure of Confidential Information) except
|
| (b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 39 (Confidential Information).
|
| (a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and the Commitment has been cancelled
or otherwise ceased to be available; and
|
| (b) |
the date on which the Lender otherwise ceases to be the Lender.
|
| (a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the
existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
|
| (b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the
contrary.
|
| (c) |
This Clause 42.1 (Jurisdiction) is for the benefit of
the Lender only. As a result, the Lender shall be not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any
number of jurisdictions.
|
| (a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
| (i) |
irrevocably appoints Messrs. E.J.C Album Solicitors, presently of Landmark House, 190 Willifield Way, London, NW11 6YA, England (Attention of Mr. Edward
Album, Tel: +44 208 455 7653, Fax: +44 208 457 5558, e-mail: ejca@mitgr.com) as its agent for service of process in relation to any proceedings
before the English courts in connection with any Finance Document; and
|
| (ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
| (b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of all
the Obligors) must immediately (and in any event within 14 days of such event taking place) appoint another agent on terms acceptable to the Lender. Failing this, the Lender may appoint another agent for this purpose.
|
|
Name of Borrower
|
Place of Incorporation
|
Registration number (or equivalent, if any)
|
Address for Communication
|
|
Premier Marine Co.
|
Marshall Islands
|
77643
|
154 Vouliagmenis Avenue, 166 74 Glyfada, Athens Greece
|
|
Fellow Shipping Co.
|
Marshall Islands
|
97694
|
154 Vouliagmenis Avenue, 166 74 Glyfada, Athens Greece
|
|
Name of Guarantor
|
Place of Incorporation
|
Registration number (or equivalent, if any)
|
Address for Communication
|
|
Seanergy Maritime Holdings Corp.
|
Marshall Islands
|
27721
|
154 Vouliagmenis Avenue, 166 74 Glyfada, Athens Greece
|
|
Name of Original Lender
|
Address for Communication
|
|
UniCredit Bank AG
|
7 Heraklitou Street, 10673 Athens, Greece
(or any other office of UniCredit Bank AG in accordance with Clause 28.4 (Change of lending office)
Fax: +30 210 3640063
Attention: the Managers
|
| 1 |
Obligors
|
| 1.1 |
A copy of the constitutional documents of each Obligor.
|
| (a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents
to which it is a party;
|
| (b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
| (c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation Request and
each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
| 1.3 |
An original of the power of attorney of each Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party.
|
| 1.4 |
A specimen of the signature of each person authorised by the resolution referred to in paragraph 1.2 above.
|
| 1.5 |
A certificate of incumbency in respect of any Approved Manager.
|
| 1.6 |
A copy of a resolution signed by the Guarantor as the holder of the issued shares in each Borrower, approving the terms of, and the transactions contemplated
by, the Finance Documents to which that Borrower is a party.
|
| 1.7 |
A certificate of each Obligor (signed by an officer) confirming that borrowing or guaranteeing, as appropriate, the Commitment would not cause any borrowing,
guaranteeing or similar limit binding on that Transaction Obligor to be exceeded.
|
| 1.8 |
A certificate of each Obligor that is incorporated outside the UK (signed by an officer) certifying either that (i) it has not delivered particulars of any UK
Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies.
|
| 1.9 |
A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Part A of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
| 2 |
MOA, Assignable Charter and other documents
|
| 2.1 |
Copies of the MOA and of all documents signed or issued by a Borrower or the relevant Seller (or any of them) under or in connection with it.
|
| 2.2 |
Copies of any Assignable Charter and of all documents signed or issued by a Borrower or the Charterer (or both of them) under or in connection with it.
|
| 2.3 |
Such documentary evidence as the Lender and its legal advisers may require in relation to the due authorisation and execution of the MOA and the Assignable
Charter by each of the parties thereto.
|
| 2.4 |
A copy of the Hedging Agreement executed by the Borrowers.
|
| 3.1 |
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2 (Conditions Precedent).
|
| 3.2 |
A duly executed original of any other document required to be delivered by each Finance Document if not otherwise referred to this Schedule 2 (Conditions Precedent).
|
| 4 |
Security
|
| 4.1 |
A duly executed original of the Account Security in relation to each Earnings Account and of the Shares Security in respect of each Borrower (and of each
document to be delivered under each of them).
|
| 4.2 |
A duly executed original of the Hedging Agreement Security in respect of the Borrower (and of each document to be delivered under it).
|
| 5 |
Legal opinions
|
| 5.1 |
A legal opinion of Watson Farley & Williams, legal advisers to the Lender in England.
|
| 5.2 |
If an Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Lender in the relevant
jurisdiction.
|
| 6 |
Other documents and evidence
|
| 6.1 |
Evidence that the Borrowers have deposited at each relevant time with the Lender the required amount in respect of a Tranche (not forming part of the Advance)
towards payment of the Purchase Price of each of the Ships.
|
| 6.2 |
Evidence that any process agent referred to in Clause 42.2 (Service
of process), if not an Obligor, has accepted its appointment.
|
| 6.3 |
A copy of any other Authorisation or other document, opinion or assurance which the Lender considers to be necessary or desirable (if it has notified the
Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document.
|
| 6.4 |
The original of any mandates or other documents required in connection with the opening or operation of the Accounts.
|
| 6.5 |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid by the first
Utilisation Date.
|
| 6.6 |
Evidence satisfactory to the Lender that the Disclosed Person is the ultimate beneficial owner of not less than 30 per cent. of either (A) the issued shares
in the Guarantor and the voting rights attached to such shares and/or (B) the voting rights attached to any of the issued shares in the Guarantor which are not owned by the Disclosed Person and that no other person or company is the
ultimate beneficial owner (either directly or indirectly) of (A) issued shares in the Guarantor and the voting rights attached to such shares and/or (B) the voting rights in the
|
| 6.5 |
Such evidence as the Lender may require to be able to satisfy its "know your customer" or similar identification procedures in relation to the transactions
contemplated by the Finance Documents.
|
| 1 |
Borrowers
|
| 2 |
Ship and other security
|
| 2.1 |
A duly executed original of the Mortgage, the Deed of Covenant and the General Assignment in respect of the relevant Ship and of each document to be delivered
under or pursuant to each of them together with documentary evidence that the Mortgage in respect of that Ship has been duly registered as a valid first priority ship mortgage in accordance with the laws of the jurisdiction of its
Approved Flag.
|
| 2.2 |
Documentary evidence that that Ship:
|
| (a) |
has been unconditionally delivered by the relevant Seller to, and accepted by, the relevant Borrower under the MOA and that the full Purchase Price payable
and all other sums due to that Seller under the MOA, other than the sums to be financed pursuant to the Utilisation of the Advance, have been paid to that Seller;
|
| (b) |
is definitively and permanently registered in the name of the relevant Borrower under the Approved Flag applicable to that Ship (i) at the port of Douglas, in
the case of Ship A, and (ii) at the port of Majuro, in the case of Ship B;
|
| (c) |
is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents;
|
| (d) |
is classed with ABS, Lloyd’s Register or such other classification society which is a member of IACS and approved by the Lender in its discretion.
|
| (e) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
| 2.3 |
Documents establishing that that Ship will, as from the Utilisation Date of the Advance under the relevant Tranche, be managed commercially by the Approved
Commercial Manager and managed technically by the Approved Technical Manager on terms acceptable to the Lender, together with:
|
| (a) |
a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager of that Ship; and
|
| (b) |
copies of the Approved Technical Manager's Document of Compliance and of the Ship’s Safety Management Certificate (together with any other details of the
applicable Safety Management System which the Lender requires) and of any other documents required under the ISM Code and the ISPS Code in relation to that Ship including without limitation an ISSC.
|
| 2.4 |
An opinion from an independent insurance consultant acceptable to the Lender on such matters relating to the Insurances as the Lender may require.
|
| 2.5 |
Evidence of the Market Value of that Ship, addressed to the Lender, stated to be for the purposes of this Agreement and dated not earlier than 14 Business
Days before the Utilisation Date for that Advance.
|
| 3 |
Legal opinions
|
| (a) |
in respect of Ship A, Isle of Man; and
|
| (b) |
in respect of Ship B, the Republic of the Marshall Islands,
|
| 4 |
Other documents and evidence
|
| 4.1 |
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid by the
Utilisation Date for the Advance under the relevant Tranche.
|
|
From:
To:
|
Premier Marine Co.
Fellow Shipping Co. UniCredit Bank AG
|
|
Proposed Utilisation Date:
Amount:
Interest Period for the first Advance:
|
[●] (or, if that is not a Business Day, the next Business Day)
[●] or, if less, the Available Facility
[●]
|
| 3 |
We confirm that each condition specified in Clause 4.1 (Initial
conditions precedent) and Clause 4.2 (Further conditions precedent) of the Agreement as they relate to the Advance to which
this Utilisation Request refers is satisfied on the date of this Utilisation Request.
|
| 4 |
The proceeds of this Advance should be credited to [account].
|
| 5 |
This Utilisation Request is irrevocable.
|
|
From:
To:
|
Premier Marine Co.
Fellow Shipping Co. UniCredit Bank AG
|
|
To:
From:
|
UniCredit Bank AG
Seanergy Maritime Holdings Corp.
|
| 1 |
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate
unless given a different meaning in this Compliance Certificate.
|
| 2 |
We confirm that:
|
| 2.1 |
[the Leverage Ratio does not exceed [●] per cent.; and]
|
| 2.2 |
[the ratio of EBITDA to Net Interest Expenses (as shown in the relevant Financial Statements accompanying this Compliance Certificate) is not less than [●];
and]
|
| 2.3 |
[we maintain Cash and Cash Equivalents in an amount of [$ ] inclusive of [contractually committed but undrawn parts of] shareholders’Notes in an aggregate
amount of [$ ] [made available] to ourselves.]
|
| 3 |
[We confirm that no Event of Default is continuing.]
|
|
Name of the Borrower owner
|
Type
|
GRT
|
NRT
|
Approved Flag and port of registration
|
Approved Classification Society
|
Approved Classification
|
Approved Commercial Manager
|
Approved Technical Manager
|
|
|
“PREMIERSHIP”
|
Borrower A
|
bulk carrier
|
88479
|
56828
|
Isle of Man port of Douglas
|
ABS
|
+100 A1
|
Fidelity Marine or Seanergy Management
|
V. Ships and (as the case may be) Seanergy Shipmanagement
|
|
“CPO OCEANIA”
(to be renamed “FELLOWSHIP”)
|
Borrower B
|
Capsize bulk carrier
|
94250
|
59547
|
Marshall Islands, port of Majuro
|
Lloyds Register
|
+100 A5 Bulk Carrier BC(A) CSR DBC ERS ESP Grab (25 t) Holds (2,4,6,8) may be empty IW +MC AUT
|
Fidelity Marine or Seanergy Management
|
V. Ships and (as the case may be) Seanergy Shipmanagement
|
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) or a Selection Notice (Clause 9.1 (Selection of Interest Periods))
|
Two Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of a Utilisation Request)) or the expiry of the preceding Interest Period (Clause 9.1 (Selection
of Interest Periods))
|
|
LIBOR is fixed
|
Quotation Day as of 11:00 am London time
|
|
Reference Bank Rate calculated by reference to available quotations in accordance with Clause 10.2 (Calculation of Reference Bank Rate)
|
Noon on the Quotation Day
|
|
SIGNED by Stavros Gyftakis
|
)
|
|
|
duly authorised attorney-in-fact
|
)
|
|
|
for and on behalf of
|
)
|
/s/ Stavros Gyftakis
|
|
PREMIER MARINE CO.
|
)
|
|
|
in the presence of:
|
)
|
|
|
Witness' signature:
|
)
|
|
|
Witness' name: Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis
|
|
Witness' address:
|
)
|
|
SIGNED by Stavros Gyftakis
|
)
|
|
|
duly authorised attorney-in-fact
|
)
|
|
|
for and on behalf of
|
)
|
/s/ Stavros Gyftakis
|
|
FELLOW SHIPPING CO.
|
)
|
|
|
in the presence of:
|
)
|
|
|
Witness' signature:
|
)
|
|
|
Witness' name: Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis
|
|
Witness' address:
|
)
|
|
SIGNED by Stavros Gyftakis
|
)
|
|
|
duly authorised attorney-in-fact
|
)
|
|
|
for and on behalf of
|
)
|
/s/ Stavros Gyftakis
|
|
SEANERGY MARITIME HOLDINGS
|
)
|
|
|
CORP.
|
)
|
|
|
in the presence of:
|
)
|
|
|
Witness' signature:
|
)
|
|
|
Witness' name: Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis
|
|
Witness' address:
|
)
|
|
SIGNED by Kelina Kantzou
|
)
|
|
|
duly authorised attorney-in-fact
|
)
|
|
|
for and on behalf of
|
)
|
/s/ Kelina Kantzou
|
|
UNICREDIT BANK AG
|
)
|
|
|
in the presence of:
|
)
|
|
|
Witness' signature:
|
)
|
|
|
Witness' name: Emmanouil Pontikis
|
)
|
/s/ Emmanouil Pontikis
|
|
Witness' address:
|
)
|