OPERATIONAL UNDERTAKINGS. The Borrower hereby further undertakes with the Lender to comply with the following provisions of this Clause 22 at all relevant times during the Security Period except as the Lender may otherwise previously permit in writing: 22.01 to ensure that the Ship shall be kept registered as a Liberian flag ship at the port of Monrovia, Liberia, (or under such other flag as may be acceptable to the Lender in its reasonable discretion) and not to do or suffer to be done anything whereby such registration may be forfeited or imperilled; 22.02 to ensure that all the Earnings of the Ship are paid into the Earnings Account; 22.03 to pay as and when due and payable, all taxes, assessments, levies, governmental charges, fines and penalties lawfully imposed on and enforceable against the Ship; 22.04 to ensure that the Ship (or any share thereof or interest therein) shall not be sold transferred, mortgaged, charged, hypothecated or abandoned (save in the case of maritime necessity) and that neither the Insurances nor the Earnings of the Ship or any Requisition Compensation will be assigned otherwise than in favour of the Lender; 22.05 to ensure that the Ship shall neither be employed and/or operated in a manner contrary to any law or regulation in any relevant jurisdiction including without limitation to the ISM Code and the ISPS Code and all Sanctions and neither Borrower nor the Manager will engage in any unlawful trade or carry any cargo that may expose the Ship to penalty, forfeiture or capture and in the event of hostilities in any part of the world (whether a war be declared or not) nor employ the Ship or voluntarily suffer her employment in carrying any contraband goods; 22.06 not to create or permit to be created or continued any lien or Encumbrance(s) on the Ship and/or the Insurances and/or the Earnings and/or any Requisition Compensation (other than Permitted Liens) and to satisfy all claims and demands which if unpaid might in law or by statute or otherwise create a lien or Encumbrance(s) and (without prejudice to the generality of the foregoing) to procure that no lien or Encumbrance(s) is created or permitted to be created or continued on the Ship for any reason whatsoever; 22.07 on the request of the Lender, to provide to and procure that the Lender shall be provided with satisfactory evidence that the wages, allotments, insurance and pension contributions of the Master and crew of the Ship are being paid in accordance with the relevant agreements relating to the Ship and the relevant regulations, and that all deductions from the remuneration of the Master and crew in respect of any tax liability (including all social insurance contributions) are being made and accounted for to the relevant authority and that the Master of the Ship has no claim for disbursements other than those properly incurred by him in the ordinary trading of the Ship on the voyage then in progress; 22.08 if any writ or proceedings are issued against the Ship or if the Ship shall be otherwise attached, arrested or detained by any proceeding in any court or tribunal or by any government or other authority, the Borrower shall immediately notify and procure that the Lender shall be notified thereof by telefax confirmed by letter and to cause the Ship to be released and all liens or Encumbrance(s) (except for the Mortgage and any Permitted Liens on the Ship) thereon to be discharged forthwith; 22.09 (save for the Approved Charter) not to voyage or time charter the Ship or place her under any contract for employment for any period which when aggregated with any optional periods of extension contained in the said charter or contract, would exceed twelve (12) months duration, provided however that in the event of the Ship being employed (with the Lender's prior written consent) under any charter which when aggregated with any optional periods contained in such charter would exceed twelve (12) months duration, the Lender shall be furnished forthwith with (a) details and documentary evidence satisfactory to the Lender in its sole discretion in respect of the new employment, (b) upon Lender's request, a specific assignment in favour of the Lender of the benefit of such charter together with a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer all in form and substance satisfactory to the Lender and (c) upon Lender's request, a specific agreement of subordination of the rights of such charterer to the rights of the Lender; 22.10 not to demise charter the Ship for any period whatsoever; 22.11 not to deliver the Ship into the possession of any person or persons for effecting repairs or renewals to the Ship the cost of which will exceed the amount of Seven hundred thousand Dollars ($700,000) unless such person or persons shall have given a written undertaking to the Lender not to exercise any lien or right of detention on the Ship in respect of the cost of such repairs or renewals; 22.12 at all times and at the Borrower's own expense, to maintain the Ship in a seaworthy condition and in good running order and repair in accordance with first class ship ownership and ship management practice and to keep and procure that the Ship is kept in such condition as will entitle her to the highest classification status with the Classification Society free from recommendations and notations which have not been complied with in accordance with their terms and to procure that, upon the Lender's request, the Lender is provided with a certificate issued by the Classification Society that such classification status is maintained and with copies of all other classification certificates as the Lender may request in writing; 22.13 to submit the Ship regularly to such periodical or other surveys as may be required for classification purposes and, if so required by the Lender in writing, supply and procure that the Lender is supplied with copies of all survey reports issued in respect thereof; 22.14 to notify and procure that the Lender is notified immediately by facsimile of any recommendation or requirement imposed on the Ship by the Classification Society, the Insurers or by any other competent authority that is not complied with in accordance with its terms; 22.15 to give to the Lender reasonable prior notice of any proposed dry docking or any underwater survey of the Ship so that the Lender (if it so desires) can arrange for a representative to be present; 22.16 to authorise and procure that the Classification Society and all other regulatory authorities of the Ship are authorised to disclose to the Lender any information or documents requested by the Lender relating to the classification, repair, maintenance or seaworthiness of the Ship; 22.17 to comply with all legal requirements whether imposed by enactment, regulation, common law or otherwise and to have on board the Ship as and when legally required valid certificates showing compliance therewith; 22.18 without prejudice to Clause 22.17, to take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to the Ship in any jurisdiction in or to which the Ship shall be employed or trade or which may otherwise be applicable to the Ship or the Borrower and, if the Lender shall so require, the Borrower shall enter into a "Carrier Initiative Agreement" with the United States Customs Service and to procure that such agreement (or any similar agreement hereafter introduced by any agency of the United States of America) is maintained by the Borrower in full force and effect; 22.19 to comply with and to ensure and procure that the Manager and all servants and agents of the Borrower and the Manager or any charterer of the Ship shall comply with, the ISM Code, the ISM Code Documentation, the ISPS Code, the ISPS Code Documentation, all Sanctions, all Environmental Laws and all legislation of any state or government in relation to the Ship, her ownership, operation and management or to the business of the Borrower and the Manager, including, without limitation, requirements relating to maxxxxx, submission of oil spill response plans, designation of qualified individuals and establishing financial responsibility; 22.20 to hold and procure that the Manager shall hold all appropriate ISM Documentation and to provide the Lender with copies of the relevant ISM Code Documentation and ISPS Code Documentation duly issued to the Borrower, the Manager and the Ship pursuant to the ISM Code and the ISPS Code; 22.21 to keep, or procure that it is kept, on board the Ship a copy of all relevant ISM Code Documentation and ISPS Code Documentation respectively; 22.22 to perform and discharge all duties and liabilities imposed on the Borrower under any charter, bixx xf lading or other contract relating to the Ship; 22.23 not to remove or permit the removal of any part of the Ship or any equipment belonging thereto, nor make or permit to be made any alteration in the structure type or speed of the Ship which materially reduces the value of the Ship (unless such removal or alteration is required by statute or by her Classification Society); 22.24 at all reasonable times and on reasonable notice, to permit and procure that the Lender or its authorised representative is permitted full and complete access to the Ship for the purpose of inspecting the state and condition of the Ship and her cargo and papers and at the written request of the Lender deliver and procure the delivery for inspection copies of any and all contracts and documents relating to the Ship whether on board or not; 22.25 to keep and procure that the Lender is kept fully informed as to the use, the employment and the position of the Ship and promptly provide and procure that the Lender is provided with information concerning the classification, status and insurance of the Ship from time to time as and when so required in writing by the Lender; 22.26 when so requested by the Lender, to appoint and procure that two firms of independent sale and purchase shipbrokers shall be appointed, as nominated or approved by the Lender, to give valuations of the Ship in Dollars, such valuations to be made without physical inspection (unless otherwise required by the Lender) and on the basis of an arm's-length transaction by a willing buyer from a willing seller and where the Ship is subject to a charter, with or without taking into account such charter (whichever results to a lower value of the Ship); The average of the aforesaid two valuations shall constitute the Market Value of the Ship. In case the difference between the said two valuations is more than ten per cent (10%), a third firm of independent sale and purchase shipbrokers, nominated or approved by the Lender, will be appointed and the average of all three such valuations shall constitute the Market Value of the Ship. The fees of the shipbrokers appointed to give such valuations shall be paid by the Borrower; 22.27 in the event of Compulsory Acquisition of the Ship by any Government Entity, to execute and procure the execution of any assignment that the Lender may request in relation to any and all amounts which such Government Entity shall be liable to pay as compensation for the Ship or for her use and if received by the Borrower to pay and procure the payment of such amounts immediately to the Lender, 22.28 to maintain the appointment of the Manager as manager of the Ship and not to vary in any material respect or terminate this appointment; 22.29 to execute and procure the execution by each other Security Party of any further document or documents required by the Lender in order to perfect or complete the security created by the Finance Documents; 22.30 to execute and deliver to the Lender such documents of transfer as the Lender may require in the event of sale of the Ship pursuant to any power of sale contained in the Mortgage or which the Lender may have in law; 22.31 to immediately notify the Lender by fax, confirmed forthwith by letter, of: (i) any casualty in respect of the Ship which is or is likely to be or to become a Major Casualty; (ii) any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss; (iii) any requirement or recommendation made by any insurer or classification society or by any competent authority in respect of the Ship which is not complied with in accordance with its terms; (iv) any arrest or detention of the Ship, any exercise or purported exercise of any lien on the Ship or her Earnings or her Insurances or any requisition of the Ship for hire; (v) any Environmental Claim made against the Borrower or the Manager or in connection with the Ship or any Environmental Incident in respect thereof; (vi) any claim for breach of the ISM Code or the ISPS Code being made against a Borrower and/or the Manager or otherwise in connection with the Ship; or (vii) 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 or the Sanctions not being complied with; and advise and procure that the Lender shall be advised in writing on a regular basis and in such detail as the Lender shall require of the Borrower's or any other person's response to any of those events or matters; 22.32 to keep prominently in the Chart Room and in the Master's cabin of the Ship a framed duly completed notice printed in plain type of such size that the area of print shall cover a space not less than six inches wide and nine inches high reading as follows: This Ship is owned by [..] of Liberia and is subject to a first priority/preferred Mortgage [and a deed of covenant collateral thereto - as the case may be] in favour of HSBC BANK PLC; under the terms of the said Mortgage, a certified copy of which is preserved with the Ship's papers, neither the owners nor the Captain nor any officer or agent nor any charterer of this Ship nor any other person whatsoever has any power, right or authority whatever to create, incur or permit the imposition on this Ship any commitments or encumbrances except for crews' wages accrued for not more than three (3) months or salvage."; and 22.33 to comply with its respective obligations under each Subject Document and not to (and ensure and procure that no other party thereto will) vary, amend or terminate any of the aforesaid documents.
Appears in 2 contracts
Samples: Financial Agreement (EuroDry Ltd.), Financial Agreement (Euroseas Ltd.)
OPERATIONAL UNDERTAKINGS. The Borrower hereby further undertakes with the Lender to comply with the following provisions of this Clause 22 20 at all relevant times during the Security Period except as the Lender may otherwise previously permit in writingPeriod:
22.01 20.01 to ensure that the Ship shall be kept registered as a Liberian flag ship at the port Port of Monrovia, Liberia, (Liberia and the Borrower shall not or under such other flag as may be acceptable to the Lender in its reasonable discretion) and do not to do or suffer to be done anything whereby such registration may be forfeited or imperilled;
22.02 20.02 to maintain and ensure that each other Corporate Security Party shall maintain its corporate existence under the laws of the country of its incorporation and comply with all relevant legislation applicable to it;
20.03 to ensure that all the Earnings of the Ship are shall be paid into the Earnings Account;
22.03 20.04 to pay as and ensure that when due and payable, all taxes, assessments, levies, governmental charges, fines and penalties lawfully imposed on and enforceable against the ShipShip shall be paid by the Borrower, unless contested in good faith by the appropriate proceedings;
22.04 20.05 to ensure that the Ship (or any share thereof or interest therein) shall not be sold transferred, mortgaged, charged, hypothecated (save as provided in the Mortgage) or abandoned (save in the case of maritime necessity) and that neither the Insurances nor the Earnings of the Ship or any Requisition Compensation will be assigned otherwise than in favour without the prior written consent of the Lender, which it shall have full power to withhold;
22.05 20.06 to ensure that the Ship shall neither not be employed and/or operated in a any manner contrary to any law or regulation in any relevant jurisdiction including without limitation to the ISM Code and the ISPS Code and all Sanctions and neither the Borrower nor the Manager will to engage in any unlawful trade or carry any cargo that may will expose the Ship to penalty, forfeiture or capture and in the event of hostilities in any part of the world (whether a war be declared or not) nor to employ the Ship or voluntarily suffer her employment in carrying any contraband goods;
22.06 20.07 not to create or permit to be created or continued any lien or Encumbrance(s) on the Ship and/or the Insurances and/or the Earnings and/or any Requisition Compensation (other than Permitted Liens) and and/or to satisfy all claims and demands which if unpaid might in law or by statute or otherwise create a lien or Encumbrance(s) and (without prejudice to the generality of the foregoing) to procure that no lien or Encumbrance(s) is shall be created or permitted to be created or continued on the Ship for any reason whatsoever;
22.07 20.08 on the request of the Lender, to provide to and procure that the Lender shall be provided with satisfactory evidence that the wages, allotments, insurance and pension contributions of the Master and crew of the Ship (if any) are being paid in accordance with the relevant agreements relating to the Ship and the relevant regulations, and that all deductions from the remuneration of the Master and crew in respect of any tax liability (including all social insurance contributions) are being made and accounted for to the relevant authority and that the Master of the Ship has no claim for disbursements other than those properly incurred by him in the ordinary trading of the Ship on the voyage then in progress;
22.08 20.09 if any writ or proceedings are issued against the Ship or if the Ship shall be is otherwise attached, arrested or detained by any proceeding in any court or tribunal or by any government or other authority, the Borrower shall to immediately notify and procure that the Lender shall be notified thereof by telefax confirmed by letter and to as soon as practicably possible thereafter cause the Ship to be released and all liens or Encumbrance(s) (except for the Mortgage and any Permitted Liens on the Ship) thereon to be discharged forthwithdischarged;
22.09 20.10 not without the prior written consent of the Lender (save for the Approved Charter) which not to be unreasonably withheld) voyage or time charter the Ship or place her under any contract for employment for any period which when aggregated with any optional periods of extension contained in the said charter or contract, would exceed twelve (12) months duration, provided however that in the event of the Ship being employed (with the Lender's prior written consent) under any charter which when aggregated with any optional periods contained in such charter would exceed twelve (12) months duration, the Lender shall be furnished forthwith with (a) details and documentary evidence satisfactory to the Lender in its sole discretion in respect of the new employment, (b) upon Lender's request, a specific assignment in favour of the Lender of the benefit of such charter together with a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer all in form and substance satisfactory to the Lender and (c) upon Lender's request, a specific agreement of subordination of the rights of such charterer to the rights of the Lender;
22.10 20.11 not to demise charter the Ship for any period whatsoever;
22.11 not to deliver the Ship into the possession of any person or persons for effecting repairs or renewals to the Ship the cost of which will exceed the amount of Seven hundred thousand Dollars ($700,000) unless such person or persons shall have given a written undertaking to the Lender not to exercise any lien or right of detention on the Ship in respect of the cost of such repairs or renewals;
22.12 20.12 at all times and at the Borrower's own expense, to maintain the Ship in a seaworthy condition and in good running order and repair in accordance with first class ship ownership and ship management practice and to keep and procure that the Ship is kept in such condition as will entitle her to the highest classification status with the Classification Society free from recommendations and notations which have not been complied with in accordance with their terms and to procure that, upon the Lender's request, that the Lender is provided with a certificate issued by the Classification Society that such classification status is maintained and with copies of all other classification certificates as the Lender may request in writing;
22.13 20.13 to submit the Ship regularly to such periodical or other surveys as may be required for classification purposes and, if so required by the Lender in writing, supply and procure that the Lender is supplied with copies of all survey reports issued in respect thereof;
22.14 20.14 to notify and procure that the Lender is notified immediately by facsimile telefax of any recommendation or requirement imposed on the Ship by the its Classification Society, the its Insurers or by any other competent authority that is not complied with in accordance with its terms;
22.15 to give to the Lender reasonable prior notice of any proposed dry docking or any underwater survey of the Ship so that the Lender (if it so desires) can arrange for a representative to be present;
22.16 20.15 to authorise and procure that the Classification Society and all other regulatory authorities of the Ship are authorised to disclose to the Lender any information or documents reasonably requested by the Lender relating to the classification, repair, maintenance or seaworthiness of the Ship;
22.17 20.16 to comply with all legal requirements whether imposed by enactment, regulation, common law regulation or otherwise and to have on board the Ship as and when legally required valid certificates showing compliance therewith;
22.18 20.17 without prejudice to Clause 22.1720.16, to take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to the Ship in any jurisdiction in or to which the Ship shall be employed or trade or which may otherwise be applicable to the Ship or the Borrower and, if the Lender shall so require, the Borrower shall to enter into a "Carrier Initiative Agreement" with the United States Customs Service and to procure that such agreement (or any similar agreement hereafter introduced by any agency of the United States of America) is maintained by the Borrower in full force and effecteffect by the Borrower;
22.19 20.18 to comply with and to will ensure and procure that the Manager and all servants and agents of the Borrower and the Manager or any charterer of the Ship shall comply with, the ISM Code, the ISM Code Documentation, the ISPS Code, the ISPS Code Documentation, all Sanctions, all Environmental Laws and all legislation of any state or government in relation to the Ship, her its ownership, operation and management or to the business of the Borrower and the Manager, including, without limitation, requirements relating to maxxxxxxxxxxxx, submission of oil spill response plans, designation of qualified individuals and establishing financial responsibility;
22.20 20.19 to hold and or procure that the Manager shall hold all appropriate ISM Documentation and to provide the Lender with copies of the relevant ISM Code Documentation and ISPS Code Documentation duly issued to the Borrower, the Manager and the Ship pursuant to the ISM Code and the ISPS Code;
22.21 20.20 to keep, or procure that it there is kept, on board the Ship a copy of all relevant ISM Code Documentation and ISPS Code Documentation respectively;
22.22 20.21 to perform and discharge all duties and liabilities imposed on the Borrower under any charter, bixx xf xxxx of lading or other contract relating to the Ship;
22.23 20.22 not to remove or permit the removal of any part of the Ship or any equipment belonging thereto, nor make or permit to be made any alteration in the structure type or speed of the Ship which materially reduces reduced the value of the Ship (unless such removal or alteration is required by statute or by her Classification Society)) without the prior written consent of the Lender, such consent not to be unreasonably withheld;
22.24 20.23 at all reasonable times and on reasonable notice, to permit and procure that the Lender or its authorised representative is permitted full and complete access to the Ship for the purpose of inspecting the state and condition of the Ship and her cargo and papers and at the written request of the Lender deliver and procure the delivery for inspection copies of any and all contracts and documents relating to the Ship whether on board or not;
22.25 20.24 to keep and procure that the Lender is kept fully informed as to the use, the employment and the position of the Ship and promptly provide and procure that the Lender is provided with information concerning the classification, status and insurance of the Ship from time to time as and when so required in writing by the Lender;
22.26 20.25 when so requested by the Lender, to appoint and procure that two firms a firm of independent sale and purchase shipbrokers shall be appointed, as nominated or approved by the Lender, to give valuations valuation of the Ship in Dollars, such valuations valuation to be made without physical inspection (unless otherwise required by the Lender) and on the basis of an arm's-length transaction by a willing buyer from a willing seller and where the Ship is subject to a charter, with or without taking into account such charter (whichever results to a lower value of the Ship); The average of the aforesaid two valuations shall constitute the Market Value of the Ship. In case the difference between the said two valuations is more than ten per cent (10%), a third firm of independent sale all costs and purchase shipbrokers, nominated or approved by the Lender, will be appointed and the average of all three fees payable in connection with each such valuations shall constitute the Market Value of the Ship. The fees of the shipbrokers appointed to give such valuations valuation shall be paid by the Borrower;
22.27 20.26 in the event of Compulsory Acquisition of the Ship by any Government Entity, to the Borrower shall execute and procure the execution of any assignment that the Lender may request in relation to any and all amounts which such Government Entity shall be liable to pay as compensation for the Ship or for her use and if received by the Borrower to pay and procure the payment of such amounts immediately to the Lender,
22.28 20.27 to maintain appoint and procure the appointment of the Manager as manager of the Ship and not to vary in any material respect or terminate this appointmentappointment without the Lender's prior written consent,;
22.29 20.28 to execute and procure the execution by each other Security Party of any further document or documents reasonably required by the Lender in order to perfect or complete the security created by the Finance Security Documents;
22.30 20.29 to execute and deliver to the Lender such documents of transfer as the Lender may require in the event of sale of the Ship pursuant to any power of sale contained in the Mortgage or which the Lender may have in law;
22.31 20.30 not to employ the Ship nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including, but not limited to, the ISM Code and the ISPS Code;
20.31 to immediately notify the Lender by fax, confirmed forthwith by letter, of:
(i) any casualty in respect of the Ship which is or is likely to be or to become a Major Casualty;
(ii) any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(iii) any requirement or recommendation made by any insurer or classification society or by any competent authority in respect of the Ship which is not complied with in accordance with its terms;
(iv) any arrest or detention of the Ship, any exercise or purported exercise of any lien on the Ship or her Earnings or her Insurances or any requisition of the Ship for hire;
(v) any Environmental Claim made against the Borrower or the Manager or in connection with the Ship or any Environmental Incident in respect thereof;
(vi) any claim for breach of the ISM Code or the ISPS Code being made against a the Borrower and/or the Manager or otherwise in connection with the Ship; or
(vii) 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 or the Sanctions not being complied with; and advise and procure that the Lender shall be advised in writing on a regular basis and in such detail as the Lender shall require of the Borrower's or any other person's response to any of those events or matters;; and
22.32 20.32 to keep prominently in the Chart Room and in the Master's cabin of the Ship a framed duly completed notice printed in plain type of such size that the area of print shall cover a space not less than six inches wide and nine inches high reading as follows: This Ship is owned by [..] of Liberia and is subject to a first priority/preferred Mortgage [and a deed of covenant collateral thereto - as the case may be] in favour of HSBC BANK PLC; under the terms of the said Mortgage, a certified copy of which is preserved with the Ship's papers, neither the owners nor the Captain nor any officer or agent nor any charterer of this Ship nor any other person whatsoever has any power, right or authority whatever to create, incur or permit the imposition on this Ship any commitments or encumbrances except for crews' wages accrued for not more than three (3) months or salvage."; and
22.33 to comply with its respective obligations under each Subject Document and not to (and ensure and procure that no other party thereto will) vary, amend or terminate any of the aforesaid documents.:
Appears in 2 contracts
Samples: Financial Agreement (EuroDry Ltd.), Financial Agreement (Euroseas Ltd.)
OPERATIONAL UNDERTAKINGS. The Borrower Borrowers hereby further undertakes jointly and severally undertake with the Lender to that throughout the Security Period the Borrowers shall (and shall procure that each other relevant Security Party shall) comply with the following provisions of this Clause 22 at all relevant times during the Security Period 21.1 except as the Lender may otherwise previously permit in writingpermit:
22.01 21.1 to ensure and procure that the Ship shall be kept duly registered as a Liberian under the laws and flag ship at of the port of Monrovia, Liberia, Flag State (or under such other flag as may be acceptable registration or such other port to which the Lender may agree) in its reasonable discretion) the ownership of the Owner and the Owner shall not to do or suffer to be done anything whereby such registration may be forfeited or imperilled;
22.02 21.2 to ensure that all the Earnings of the Ship are shall be paid into the Earnings AccountAccounts or any of them and to procure that the Owner shall not open or maintain any accounts other than the Earnings Accounts with any bank other than the Lender without the Lender’s prior written consent;
22.03 21.3 to pay as and ensure that when due and payable, all taxes, assessments, levies, governmental charges, fines and penalties lawfully imposed on and enforceable against the ShipShip shall be paid by the Owner ;
22.04 21.4 to ensure that the Ship (or any share thereof or interest therein) shall not be sold transferred, mortgaged, charged, hypothecated or abandoned (save in the case of maritime necessity) and that neither the Insurances nor the Earnings of the Ship or any Requisition Compensation will be assigned otherwise than in favour without the prior written consent of the LenderLender which it shall have the power to withhold;
22.05 21.5 to ensure that the Ship shall neither not be employed and/or operated in a any manner contrary to any law or regulation regulations in any relevant jurisdiction including jurisdiction, including, without limitation to the ISM Code and the ISPS Code and all Sanctions and neither Borrower the Owner nor the Manager will shall engage in any unlawful trade or carry any cargo that may will expose the Ship to penalty, forfeiture or capture and in the event of hostilities in any part of the world (whether a war be declared or not) nor not employ the Ship or voluntarily suffer her employment in carrying any contraband goods;
22.06 21.6 to ensure that the Owner shall not to create or permit to be created or continued any lien or Encumbrance(s) on the Ship and/or the Insurances and/or the Earnings and/or any Requisition Compensation (other than Permitted Liens) and to and/or shall satisfy all claims and demands which if unpaid might in law or by statute or otherwise create a lien or Encumbrance(s) and (without prejudice to the generality of the foregoing) to procure that no lien or Encumbrance(s) is shall be created or permitted to be created or continued on the Ship for any reason whatsoeverwhatsoever other than Permitted Liens;
22.07 21.7 to ensure that on the request of the Lender, to the Owner shall provide to and procure that the Lender shall be provided with satisfactory evidence that the wages, allotments, insurance and pension contributions of the Master and crew of the Ship are being paid in accordance with the relevant agreements articles of agreement relating to the Ship and the relevant regulations, regulations and that all deductions from the remuneration of the Master and crew in respect of any tax liability (including all social insurance contributions) are being made and accounted for to the relevant authority and that the Master of the Ship has no claim for disbursements other than those properly incurred by him in the ordinary trading of the Ship on the voyage then in progress;
22.08 21.8 if any writ or proceedings are shall be issued against the Ship or if the Ship shall be otherwise attached, arrested or detained by any proceeding in any court or tribunal or by any government or other authority, to ensure and procure that the Borrower Owner shall immediately notify and procure that the Lender shall be notified thereof by telefax confirmed by letter and to as soon as practicably possible thereafter and in any event not later than fourteen (14) days from the date of occurrence of any of the aforesaid events cause the Ship to be released and all liens or Encumbrance(s) (except for the Mortgage and any Permitted Liens on the Ship) thereon to be discharged forthwithdischarged;
22.09 (21.9 save for the Approved Charter, to ensure and procure that the Owner shall not without the prior written consent of the Lender (which consent shall not be unreasonably withheld) not to voyage or time charter the Ship or place her under any contract for employment for any period which when aggregated with any optional periods of extension contained in the said charter or contract, would exceed twelve six (126) months duration, ; provided however that in the event of the Ship being employed (with the Lender's ’s prior written consent) under any demise or bareboat charter or any charter which when aggregated with any optional periods contained in such charter would exceed twelve six (126) months duration, the Lender shall be furnished forthwith with (a) details and documentary evidence satisfactory to the Lender in its sole discretion in respect of the new employment, (b) upon Lender's ’s request, a specific assignment in favour of the Lender of the benefit of such charter together with a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer all in form and substance satisfactory to the Lender and (c) upon Lender's ’s request, a specific agreement of subordination of the rights of such charterer to the rights of the Lender;
22.10 21.10 to ensure and procure that the Owner shall not without the prior written consent of the Lender (which it shall have full power to withhold) demise charter the Ship for any period whatsoever;
22.11 21.11 to ensure and procure that the Owner shall not without the prior written consent of the Lender (which it shall have full power to withhold) deliver the Ship into the possession of any person or persons for effecting repairs or renewals to the Ship the cost of which will exceed the amount of Seven Three hundred thousand Dollars ($700,000300,000) unless such person or persons shall have given a written undertaking to the Lender not to exercise any lien or right of detention on the Ship in respect of the cost of such repairs or renewals;
22.12 21.12 to ensure and procure that the Owner at all times and at the Borrower's Owner’s own expense, to shall maintain the Ship in a seaworthy condition and in good running order and repair in accordance with first class ship ownership and ship management practice and to keep and procure that the Ship is kept in such condition as will entitle her it to the highest classification status with the Classification Society free from recommendations and notations which have not been complied with in accordance with their terms and to procure that, upon the Lender's request, that the Lender is provided with a certificate certificates issued by the Classification Society that such classification status is maintained and with copies of all other classification certificates as the Lender may request in writing;
22.13 21.13 to ensure and procure that the Owner shall submit the Ship regularly to such periodical or other surveys as may be required for classification purposes and, if so required by the Lender in writing, supply and procure that the Lender is supplied with copies of all survey reports issued in respect thereof;
22.14 21.14 to ensure and procure that the Owner shall notify and procure that the Lender is notified immediately by facsimile telefax of any recommendation or requirement imposed on the Ship by the Classification Society, the its Insurers or by any other competent authority that is not complied with in accordance with its terms;
22.15 21.15 to ensure and procure that the Owner shall give to and procure that the Lender is given with reasonable prior notice of any proposed dry docking or any underwater survey of the Ship so that the Lender (if it so desires) can arrange for a representative to be present;
22.16 21.16 to ensure and procure that the Owner shall authorise and procure that the Classification Society and all other regulatory authorities of the Ship are authorised to disclose to the Lender any information or documents requested by the Lender relating to the classification, repair, maintenance or seaworthiness of the Ship;
22.17 21.17 to ensure and procure that the Owner shall comply with all legal requirements whether imposed by enactment, regulation, common law or otherwise and to have on board the Ship as and when legally required valid certificates showing compliance therewith;
22.18 21.18 without prejudice to Clause 22.1721.17, to ensure and procure that the Owner shall take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to the Ship in any jurisdiction in or to which the Ship shall be employed or trade or which may otherwise be applicable to the Ship Ship, the Owner or the Borrower either of them or any other Security Party and, if the Lender shall so require, to ensure and procure that the Borrower Owner shall enter into a "“Carrier Initiative Agreement" ” with the United States Customs Service and to procure that such agreement (or any similar agreement hereafter introduced by any agency of the United States of America) is maintained by the Borrower in full force and effecteffect by the Owner;
22.19 21.19 to ensure and procure that the Owner shall comply with and to ensure and procure that the Manager and all servants and agents of the Borrower Owner and the Manager or any charterer of the Ship (including, without limitation, the Charterer) shall comply with, the ISM Code, the ISM Code Documentation, the ISPS Code, the ISPS Code Documentation, all Sanctions, all Environmental Laws and all legislation of any state or government in relation to the Ship, her its ownership, operation and management or to the business of the Borrower and the Manager, Owner including, without limitation, requirements relating to maxxxxxxxxxxxx, submission of oil spill response plans, designation of qualified individuals and establishing financial responsibility;
22.20 21.20 to ensure and procure that the Owner shall hold and or procure that the Manager shall hold all appropriate ISM Documentation and to provide the Lender with copies of the relevant ISM Code Documentation and ISPS Code Documentation duly issued to the BorrowerOwner, the Manager and the Ship pursuant to the ISM Code and the ISPS Code;
22.21 21.21 to keep, ensure and procure that the Owner shall keep or procure that it is kept, on board kept onboard the Ship a copy of all relevant ISM Code Documentation and ISPS Code Documentation respectively;
22.22 21.22 to ensure and procure that the Owner shall perform and discharge all duties and liabilities imposed on the Borrower Owner under any chartercharter (including, bixx xf without limitation, the Charter), xxxx of lading or other contract relating to the Ship;
22.23 21.23 to ensure and procure that the Owner shall not to remove or permit the removal of any part of the Ship or any equipment belonging thereto, nor make or permit to be made any alteration in the structure type or speed of the Ship which materially reduces reduced the value of the Ship (unless such removal or alteration is required by statute or by her Classification Society)) without the prior written consent of the Lender which it shall have full power to withhold;
22.24 21.24 to ensure and procure that, at all reasonable times and on reasonable notice, to the Owner shall permit and procure that the Lender or its authorised representative is permitted full and complete access to the Ship for the purpose of inspecting the state and condition of the Ship and her its cargo and papers and at the written request of the Lender deliver and procure the delivery for inspection copies of any and all contracts and documents relating to the Ship whether on board or not;
22.25 21.25 to ensure and procure that the Owner shall keep and procure that the Lender is kept fully informed as to the use, the employment and the position of the Ship and promptly provide and procure that the Lender is provided with information concerning the classification, status and insurance of the Ship from time to time as and when so required in writing by the Lender;
22.26 21.26 when so requested by the Lender, to ensure and procure that the Owner shall appoint and procure that two firms of (2) independent sale and purchase shipbrokers shall be appointed, as nominated or approved by the Lender, Lender to give valuations of the Ship in Dollars, such valuations to be made without physical inspection (unless otherwise required by the Lender) and on the basis of an arm's-arms length transaction purchase by a willing buyer from a willing seller and where and, unless the Ship is subject to a charterLender otherwise requires, with or without taking into account such charter (whichever results to a lower value of the Ship)Charter or any other charterparty in respect thereof; The average of the aforesaid two valuations shall constitute the Market Value of the Ship. In case the difference between the said two valuations is more than ten per cent (10%), a third firm of independent sale all costs and purchase shipbrokers, nominated or approved by the Lender, will be appointed and the average of all three such valuations shall constitute the Market Value of the Ship. The fees of the shipbrokers appointed to give payable in connection with such valuations shall be paid by the BorrowerOwner and the Market Value of the Ship shall be determined by taking into account the average of the aforesaid valuations;
22.27 21.27 in the event of Compulsory Acquisition of the Ship by any Government Entity, to ensure and procure that the Owner shall execute and procure the execution of any assignment that the Lender may request in relation to any and all amounts which such Government Entity shall be liable to pay as compensation Requisition Compensation for the Ship or for her use and if received by the Borrower Owner to pay and procure the payment of such amounts immediately to the Lender,;
22.28 21.28 to maintain ensure and procure that the Owner shall appoint and procure the appointment of the Manager as manager of the Ship and shall not to vary in any material respect or terminate this appointmentappointment without the Lender’s prior written consent;
22.29 21.29 to execute ensure and procure that the execution by each other Security Party of any further document or documents required by the Lender in order to perfect or complete the security created by the Finance Documents;
22.30 to Owner shall execute and deliver to the Lender such documents of transfer as the Lender may require in the event of sale of the Ship pursuant to any power of sale contained in the Mortgage or which the Lender may have in law;
22.31 21.30 to ensure and procure that the Owner shall not employ the Ship nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including, but not limited to, the ISM Code, the ISM Code Documentation, the ISPS Code and the ISPS Code Documentation;
21.31 to ensure and procure that the Owner shall immediately notify the Lender by fax, confirmed forthwith by letter, of:
(i) any casualty in respect of the Ship which is or is likely to be or to become a Major Casualty;
(ii) any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(iii) any requirement or recommendation made by any insurer or classification society or by any competent authority in respect of the Ship which is not complied with in accordance with its terms;
(iv) any arrest or detention of the Ship, any exercise or purported exercise of any lien on the Ship or her Earnings or her Insurances or any requisition of the Ship for hire;
(v) any intended dry docking of the Ship;
(vi) any Environmental Claim made against the Borrower Owner or the Manager or either of them or in connection with the Ship or any Environmental Incident in respect thereof;
(vivii) any claim for breach of the ISM Code or the ISPS Code Code, being made against a Borrower the Owner and/or the Manager or otherwise in connection with the Ship; or
(viiviii) any other matter, event or incident, actual or threatened the effect of which will or could lead to the ISM Code or and/or the ISPS Code or the Sanctions not being complied with; and advise and procure that the Lender shall be advised in writing on a regular basis and in such detail as the Lender shall require of the Borrower's Owner’s or any other person's ’s response to any of those events or matters;
22.32 21.32 to ensure and procure that the Owner shall keep prominently in the Chart Room and in the Master's ’s cabin of the its Ship a framed duly completed notice printed in plain type of such size that the area of print shall cover a space not less than six inches wide and nine inches high reading as follows: This Ship is owned by [..] of Liberia GRAND RODOSI INC. (the “Owner”) and is subject to a first priority/preferred Mortgage [and a deed of covenant collateral thereto - as the case may be] in favour of HSBC MARFIN EGNATIA BANK PLC; Societe Anonyme under the authority of Title 21 of the Liberian Code of Laws of 1956 as amended. Under the terms of the said Mortgage, mortgage a certified copy of which is preserved with the Ship's papers, ’s papers neither the owners Owner nor the Captain nor any officer or agent nor any charterer of this Ship nor any other person whatsoever has any power, right or authority whatever to create, incur or permit the imposition on this Ship any commitments or encumbrances except for crews' crews wages accrued for not more than three (3) months or salvage."”; and
22.33 21.33 to comply and ensure and procure that each other Security Party will comply with its respective obligations under each Subject Document to which it/he is a party and not to (and ensure and procure that no each other party thereto will) Security Party will not vary, amend or terminate any of the aforesaid documentsdocuments to which it/he is a party.
Appears in 1 contract
OPERATIONAL UNDERTAKINGS. 8.1. The Borrower hereby further Lessee undertakes with the Lender to comply with Lessor that from the following provisions of Delivery Date until all its liabilities under this Clause 22 at all relevant times during the Security Period except as the Lender may otherwise previously permit in writingAgreement have been discharged:
22.01 to ensure that (a) the Ship shall be kept registered as a Liberian flag ship at Lessee will not cause or permit the port of Monrovia, Liberia, (or under such other flag as may be acceptable to the Lender in its reasonable discretion) and not to do or suffer Equipment to be done anything whereby such registration may be forfeited or imperilled;
22.02 to ensure that all the Earnings of the Ship are paid into the Earnings Account;
22.03 to pay as and when due and payable, all taxes, assessments, levies, governmental charges, fines and penalties lawfully imposed on and enforceable against the Ship;
22.04 to ensure that the Ship (or any share thereof or interest therein) shall not be sold transferred, mortgaged, charged, hypothecated or abandoned (save in the case of maritime necessity) and that neither the Insurances nor the Earnings of the Ship or any Requisition Compensation will be assigned otherwise than in favour of the Lender;
22.05 to ensure that the Ship shall neither be employed and/or operated in a any manner contrary to any law or regulation in any relevant jurisdiction including without limitation which may for the time being be applicable to the ISM Code Equipment and the ISPS Code and all Sanctions and neither Borrower nor the Manager will engage in any unlawful trade not do or carry any cargo that allow to be done anything which may expose the Ship to penalty, forfeiture or capture and in the event of hostilities in any part of the world (whether a war be declared Equipment to penalty, forfeiture, impounding, detention or not) nor employ the Ship or voluntarily suffer her employment in carrying any contraband goodsdestruction;
22.06 not to create (b) the Lessee will promptly pay or permit to be created or continued any lien or Encumbrance(s) on procure the Ship and/or the Insurances and/or the Earnings and/or any Requisition Compensation (payment of all rent, rates, fees, license duties, registration charges, taxes and other than Permitted Liens) and to satisfy all claims and demands which if unpaid might in law or by statute or otherwise create a lien or Encumbrance(s) and (without prejudice to the generality of the foregoing) to procure that no lien or Encumbrance(s) is created or permitted to be created or continued on the Ship for any reason whatsoever;
22.07 on the request of the Lender, to provide to and procure that the Lender shall be provided with satisfactory evidence that the wages, allotments, insurance and pension contributions of the Master and crew of the Ship are being paid in accordance with the relevant agreements relating to the Ship and the relevant regulations, and that all deductions from the remuneration of the Master and crew outgoings in respect of any tax liability (including all social insurance contributions) are being made and accounted for to premises where the relevant authority and that the Master of the Ship has no claim for disbursements other than those properly incurred by him in the ordinary trading of the Ship on the voyage then in progress;
22.08 if any writ or proceedings are issued against the Ship or if the Ship shall be otherwise attached, arrested or detained by any proceeding in any court or tribunal or by any government or other authority, the Borrower shall immediately notify and procure that the Lender shall be notified thereof by telefax confirmed by letter and to cause the Ship to be released and all liens or Encumbrance(s) (except for the Mortgage and any Permitted Liens on the Ship) thereon to be discharged forthwith;
22.09 (save for the Approved Charter) not to voyage or time charter the Ship or place her under any contract for employment for any period which when aggregated with any optional periods of extension contained in the said charter or contract, would exceed twelve (12) months duration, provided however that in the event of the Ship being employed (with the Lender's prior written consent) under any charter which when aggregated with any optional periods contained in such charter would exceed twelve (12) months duration, the Lender shall be furnished forthwith with (a) details and documentary evidence satisfactory to the Lender in its sole discretion in respect of the new employment, (b) upon Lender's request, a specific assignment in favour of the Lender of the benefit of such charter together with a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer all in form and substance satisfactory to the Lender and (c) upon Lender's request, a specific agreement of subordination of the rights of such charterer to the rights of the Lender;
22.10 not to demise charter the Ship for any period whatsoever;
22.11 not to deliver the Ship into the possession of any person or persons for effecting repairs or renewals to the Ship the cost of which will exceed the amount of Seven hundred thousand Dollars ($700,000) unless such person or persons shall have given a written undertaking to the Lender not to exercise any lien or right of detention on the Ship in respect of the cost of such repairs or renewals;
22.12 at all times and at the Borrower's own expense, to maintain the Ship in a seaworthy condition and in good running order and repair in accordance with first class ship ownership and ship management practice and to keep and procure that the Ship is kept in such condition as will entitle her to the highest classification status with the Classification Society free from recommendations and notations which have not been complied with in accordance with their terms and to procure that, upon the Lender's request, the Lender is provided with a certificate issued by the Classification Society that such classification status is maintained and with copies of all other classification certificates as the Lender may request in writing;
22.13 to submit the Ship regularly to such periodical or other surveys as may be required for classification purposes and, if so required by the Lender in writing, supply and procure that the Lender is supplied with copies of all survey reports issued in respect thereof;
22.14 to notify and procure that the Lender is notified immediately by facsimile of any recommendation or requirement imposed on the Ship by the Classification Society, the Insurers or by any other competent authority that is not complied with in accordance with its terms;
22.15 to give to the Lender reasonable prior notice of any proposed dry docking Equipment or any underwater survey of part thereof shall be, and will keep the Ship so that the Lender (if it so desires) can arrange for a representative to be present;
22.16 to authorise and procure that the Classification Society and all other regulatory authorities of the Ship are authorised to disclose to the Lender any information or documents requested by the Lender relating to the classification, repair, maintenance or seaworthiness of the Ship;
22.17 to comply with all legal requirements whether imposed by enactment, regulation, common law or otherwise and to have on board the Ship as and when legally required valid certificates showing compliance therewith;
22.18 without prejudice to Clause 22.17, to take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to the Ship in any jurisdiction in or to which the Ship shall be employed or trade or which may otherwise be applicable to the Ship or the Borrower and, if the Lender shall so require, the Borrower shall enter into a "Carrier Initiative Agreement" with the United States Customs Service and to procure that such agreement (or any similar agreement hereafter introduced by any agency of the United States of America) is maintained by the Borrower in full force and effect;
22.19 to comply with and to ensure and procure that the Manager and all servants and agents of the Borrower and the Manager or any charterer of the Ship shall comply with, the ISM Code, the ISM Code Documentation, the ISPS Code, the ISPS Code Documentation, all Sanctions, all Environmental Laws and all legislation of any state or government in relation to the Ship, her ownership, operation and management or to the business of the Borrower and the Manager, including, without limitation, requirements relating to maxxxxx, submission of oil spill response plans, designation of qualified individuals and establishing financial responsibility;
22.20 to hold and procure that the Manager shall hold all appropriate ISM Documentation and to provide the Lender with copies of the relevant ISM Code Documentation and ISPS Code Documentation duly issued to the Borrower, the Manager and the Ship pursuant to the ISM Code and the ISPS Code;
22.21 to keepEquipment, or procure that it the Equipment is kept, on board the Ship a copy of all relevant ISM Code Documentation from being distrained for rent, rates and ISPS Code Documentation respectivelyother taxes or in any way attached;
22.22 to perform and discharge all duties and liabilities imposed on (c) the Borrower under any charter, bixx xf lading Lessee will not sub-let or other contract relating to the Ship;
22.23 not to remove or permit the removal otherwise part with possession of any part of the Ship Equipment to any person except with the prior written consent of the Lessor. Notwithstanding the consent or agreement of the Lessor to any such sub-letting or parting with possession, the Lessee shall at all times remain liable to observe and perform and shall be responsible for procuring the observation of and compliance with all the provisions of this Agreement;
(d) at all times from the Delivery Date until all its liabilities under this Agreement have been discharged, the Lessee shall, at its own expense, maintain, service, repair and overhaul each and every item of the Equipment so as to keep the Equipment equipped with the accessories, parts and components installed or supplied as part thereof at the Delivery Date or with substitutes or replacements made in accordance with this Agreement and to keep the Equipment in good repair, condition and appearance in all respects;
(e) the Lessor shall not be liable for any expense in repairing any item of the Equipment or be liable to supply any equipment or any equipment belonging thereto, nor make or permit to be made any alteration item in the structure type or speed lieu of the Ship which materially reduces Equipment or any part thereof if the value same is lost, confiscated, damaged or otherwise rendered unfit for use;
(f) the Lessee shall follow the Equipment manufacturer's recommendation as to the maintenance and service needs and use of the Ship (unless such removal or alteration is required by statute or by her Classification Society)Equipment;
22.24 (g) the Lessee shall permit the Lessor and any person authorized by the Lessor at all reasonable times and on with reasonable prior notice, to permit and procure that enter upon the Lender or its authorised representative is permitted full and complete access to premises in which the Ship Equipment are kept for the purpose of inspecting and examining the state and condition of Equipment;
(h) the Ship and her cargo and papers and at Lessee shall inform the written request of Lessor immediately if the Lender deliver and procure Equipment is the delivery for inspection copies subject matter of any litigation proceedings, distraint or lien by any person and all contracts and documents relating to the Ship whether on board or not;
22.25 to keep and procure that the Lender is kept fully informed as to the use, the employment and the position of the Ship and promptly provide and procure that the Lender is provided with information concerning the classification, status and insurance of the Ship from time to time as and when so required in writing costs incurred by the Lender;
22.26 when so requested by the Lender, Lessor to appoint and procure that two firms of independent sale and purchase shipbrokers oppose or defend such acts or actions shall be appointed, as nominated or approved by the Lender, to give valuations of the Ship in Dollars, such valuations to be made without physical inspection (unless otherwise required by the Lender) borne and on the basis of an arm's-length transaction by a willing buyer from a willing seller and where the Ship is subject to a charter, with or without taking into account such charter (whichever results to a lower value of the Ship); The average of the aforesaid two valuations shall constitute the Market Value of the Ship. In case the difference between the said two valuations is more than ten per cent (10%), a third firm of independent sale and purchase shipbrokers, nominated or approved by the Lender, will be appointed and the average of all three such valuations shall constitute the Market Value of the Ship. The fees of the shipbrokers appointed to give such valuations shall be paid by the Borrower;
22.27 in the event of Compulsory Acquisition of the Ship by any Government Entity, to execute and procure the execution of any assignment that the Lender may request in relation to any and all amounts which such Government Entity shall be liable to pay as compensation for the Ship or for her use and if received by the Borrower to pay and procure the payment of such amounts immediately to the Lender,
22.28 to maintain the appointment of the Manager as manager of the Ship and not to vary in any material respect or terminate this appointment;
22.29 to execute and procure the execution by each other Security Party of any further document or documents required by the Lender in order to perfect or complete the security created by the Finance Documents;
22.30 to execute and deliver to the Lender such documents of transfer as the Lender may require in the event of sale of the Ship pursuant to any power of sale contained in the Mortgage or which the Lender may have in law;
22.31 to immediately notify the Lender by fax, confirmed forthwith by letter, of:Lessee; and
(i) the Lessee shall not sell, assign, pledge, charge, encumber or part possession or otherwise deal with the Equipment or any casualty in respect of the Ship which is part thereof or is likely any interest therein nor create nor allow to be or to become a Major Casualty;
(ii) any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(iii) any requirement or recommendation made by any insurer or classification society or by any competent authority in respect of the Ship which is not complied with in accordance with its terms;
(iv) any arrest or detention of the Ship, any exercise or purported exercise of created any lien on the Ship or her Earnings or her Insurances or any requisition of the Ship for hire;
(v) any Environmental Claim made against the Borrower or the Manager or in connection with the Ship or any Environmental Incident in respect thereof;
(vi) any claim for breach of the ISM Code or the ISPS Code being made against a Borrower and/or the Manager or otherwise in connection with the Ship; or
(vii) 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 or the Sanctions not being complied with; and advise and procure that the Lender shall be advised in writing on a regular basis and in such detail as the Lender shall require of the Borrower's or any other person's response to any of those events or matters;
22.32 to keep prominently in the Chart Room and in the Master's cabin of the Ship a framed duly completed notice printed in plain type of such size that the area of print shall cover a space not less than six inches wide and nine inches high reading as follows: This Ship is owned by [..] of Liberia and is subject to a first priority/preferred Mortgage [and a deed of covenant collateral thereto - as the case may be] in favour of HSBC BANK PLC; under the terms of the said Mortgage, a certified copy of which is preserved with the Ship's papers, neither the owners nor the Captain nor any officer or agent nor any charterer of this Ship nor any other person whatsoever has any power, right or authority whatever to create, incur or permit the imposition on this Ship any commitments or encumbrances except for crews' wages accrued for not more than three (3) months or salvageEquipment."; and
22.33 to comply with its respective obligations under each Subject Document and not to (and ensure and procure that no other party thereto will) vary, amend or terminate any of the aforesaid documents.
Appears in 1 contract
OPERATIONAL UNDERTAKINGS. The Borrower Borrowers hereby further undertakes jointly and severally undertake with the Lender to that throughout the Security Period the Borrowers shall (and shall procure that each other relevant Security Party shall) comply with the following provisions of this Clause 22 at all relevant times during the Security Period 21.1 except as the Lender may otherwise previously permit in writingpermit:
22.01 21.1 to ensure and procure that the each Ship shall be kept registered as a Liberian under the laws and the flag ship at of the port relevant Flag State in the ownership of Monrovia, Liberia, (or under its Owner and such other flag as may be acceptable to the Lender in its reasonable discretion) and Owner shall not to do or suffer to be done anything whereby such registration may be forfeited or imperilled;
22.02 21.2 to ensure that all the Earnings of the each Ship are shall be paid into the relevant Earnings AccountAccount(s) opened in the name of the Owner of such Ship that no Owner shall open or maintain any account other that the Accounts with any bank other than the Lender, without the Lender’s prior written consent;
22.03 21.3 to pay as and ensure that when due and payable, all taxes, assessments, levies, governmental charges, fines and penalties lawfully imposed on and enforceable against the ShipShips or any of them shall be paid by the relevant Owner;
22.04 21.4 to ensure that none of the Ship Ships (or any share thereof or interest therein) shall not be sold transferred, mortgaged, charged, hypothecated or abandoned (save in the case of maritime necessity) and that neither the Insurances nor the Earnings of the Ship Ships or any Requisition Compensation of them will be assigned otherwise than in favour without the prior written consent of the LenderLender which it shall have the power to withhold;
22.05 21.5 to ensure that none of the Ship Ships shall neither be employed and/or operated in a any manner contrary to any law or regulation regulations in any relevant jurisdiction including jurisdiction, including, without limitation to the ISM Code and the ISPS Code and all Sanctions and neither Borrower none of the Owners nor the Manager will shall engage in any unlawful trade or carry any cargo that may will expose the relevant Ship to penalty, forfeiture or capture and in the event of hostilities in any part of the world (whether a war be declared or not) nor not employ the any Ship or voluntarily suffer her employment in carrying any contraband goods;
22.06 not 21.6 to ensure that no Owner shall create or permit to be created or continued any lien or Encumbrance(s) on the its Ship and/or the Insurances and/or the Earnings and/or any Requisition Compensation of its Ship (other than Permitted Liens) and to and/or shall satisfy all claims and demands which if unpaid might in law or by statute or otherwise create a lien or Encumbrance(s) and (without prejudice to the generality of the foregoing) to procure that no lien or Encumbrance(s) is shall be created or permitted to be created or continued on the its Ship for any reason whatsoeverwhatsoever other than Permitted Liens;
22.07 21.7 to ensure that on the request of the Lender, to each Owner shall provide to and procure that the Lender shall be provided with satisfactory evidence that the wages, allotments, insurance and pension contributions of the Master and crew of the its Ship are being paid in accordance with the relevant agreements articles of agreement relating to the such Ship and the relevant regulations, regulations and that all deductions from the remuneration of the Master and crew in respect of any tax liability (including all social insurance contributions) are being made and accounted for to the relevant authority and that the Master of the its Ship has no claim for disbursements other than those properly incurred by him in the ordinary trading of the such Ship on the voyage then in progress;
22.08 21.8 if any writ or proceedings are shall be issued against the any Ship or if the any Ship shall be otherwise attached, arrested or detained by any proceeding in any court or tribunal or by any government or other authority, the Borrower Owners shall immediately notify and procure that the Lender shall be notified thereof by telefax confirmed by letter and to as soon as practicably possible thereafter and in any event not later than fourteen (14) days from the date of occurrence of any of the aforesaid events cause the such Ship to be released and all liens or Encumbrance(s) (except for the Mortgage and any Permitted Liens on the such Ship) thereon to be discharged forthwithdischarged;
22.09 (21.9 save for the Approved CharterCharters, to ensure and procure that no Owner shall without the prior written consent of the Lender (which consent shall not be unreasonably withheld) not to voyage or time charter the its Ship or place her under any contract for employment for any period which when aggregated with any optional periods of extension contained in the said charter or contract, would exceed twelve (12) months duration, ; provided however that in the event of the a Ship being employed (with the Lender's ’s prior written consent) under any demise or bareboat charter or any charter which when aggregated with any optional periods contained in such charter would exceed twelve (12) months duration, the Lender shall be furnished forthwith with (a) details and documentary evidence satisfactory to the Lender in its sole discretion in respect of the new employment, (b) upon Lender's ’s request, a specific assignment in favour of the Lender of the benefit of such charter together with a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer all in form and substance satisfactory to the Lender and (c) upon Lender's ’s request, a specific agreement of subordination of the rights of such charterer to the rights of the Lender;
22.10 not 21.10 to ensure and procure that no Owner shall without the prior written consent of the Lender (which it shall have full power to withhold) demise charter the its Ship for any period whatsoever;
22.11 not 21.11 to ensure and procure that no Owner shall without the prior written consent of the Lender (which it shall have full power to withhold) deliver the its Ship into the possession of any person or persons for effecting repairs or renewals to the such Ship the cost of which will exceed the amount of Seven Three hundred thousand Dollars ($700,000300,000) unless such person or persons shall have given a written undertaking to the Lender not to exercise any lien or right of detention on the such Ship in respect of the cost of such repairs or renewals;
22.12 21.12 to ensure and procure that at all times and at the Borrower's Owners’ own expense, to each Owner shall maintain the its Ship in a seaworthy condition and in good running order and repair in accordance with first class ship ownership and ship management practice and to keep and procure that the its Ship is kept in such condition as will entitle her it to the highest classification status with the Classification Society free from recommendations and notations which have not been complied with in accordance with their terms and to procure that, upon the Lender's request, that the Lender is provided with a certificate certificates issued by the Classification Society that such classification status is maintained and with copies of all other classification certificates as the Lender may request in writing;
22.13 21.13 to ensure and procure that each Owner shall submit the its Ship regularly to such periodical or other surveys as may be required for classification purposes and, if so required by the Lender in writing, supply and procure that the Lender is supplied with copies of all survey reports issued in respect thereof;
22.14 21.14 to ensure and procure that each Owner shall notify and procure that the Lender is notified immediately by facsimile telefax of any recommendation or requirement imposed on the its Ship by the Classification Society, the its Insurers or by any other competent authority that is not complied with in accordance with its terms;
22.15 21.15 to ensure and procure that the Owners shall give to and procure that the Lender is given with reasonable prior notice of any proposed dry docking or any underwater survey of the a Ship so that the Lender (if it so desires) can arrange for a representative to be present;
22.16 21.16 to ensure and procure that the Owners shall authorise and procure that the Classification Society and all other regulatory authorities of the Ship Ships are authorised to disclose to the Lender any information or documents requested by the Lender relating to the classification, repair, maintenance or seaworthiness of the ShipShips;
22.17 21.17 to ensure and procure that the Borrowers shall comply with all legal requirements whether imposed by enactment, regulation, common law or otherwise and to have on board the Ship Ships as and when legally required valid certificates showing compliance therewith;
22.18 21.18 without prejudice to Clause 22.1721.17, to ensure and procure that the Owners shall take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to the Ship Ships in any jurisdiction in or to which the a Ship shall be employed or trade or which may otherwise be applicable to a Ship, to ensure and procure that the Ship Owners or the Borrower any of them or any other Security Party and, if the Lender shall so require, the Borrower Owners shall enter into a "“Carrier Initiative Agreement" ” with the United States Customs Service and to procure that such agreement (or any similar agreement hereafter introduced by any agency of the United States of America) is maintained by the Borrower in full force and effecteffect by the Owners;
22.19 21.19 to ensure and procure that the Owners shall comply with and to ensure and procure that the Manager and all servants and agents of the Borrower Owners and the Manager or any charterer of the Ship Ships (including, without limitation, the Charterers) shall comply with, the ISM Code, the ISM Code Documentation, the ISPS Code, the ISPS Code Documentation, all Sanctions, all Environmental Laws and all legislation of any state or government in relation to the ShipShips, her their ownership, operation and management or to the business of the Borrower and the Manager, Owners including, without limitation, requirements relating to maxxxxxxxxxxxx, submission of oil spill response plans, designation of qualified individuals and establishing financial responsibility;
22.20 21.20 to ensure and procure that the Owners shall hold and or procure that the Manager shall hold all appropriate ISM Documentation and to provide the Lender with copies of the relevant ISM Code Documentation and ISPS Code Documentation duly issued to the BorrowerOwners, the Manager and the Ship Ships pursuant to the ISM Code and the ISPS Code;
22.21 21.21 to keep, ensure and procure that the Owners shall keep or procure that it is kept, on board the kept onboard each Ship a copy of all relevant ISM Code Documentation and ISPS Code Documentation respectively;
22.22 21.22 to ensure and procure that the Owners shall perform and discharge all duties and liabilities imposed on the Borrower Owners or any of them under any chartercharter (including, bixx xf without limitation, the Charters), xxxx of lading or other contract relating to the ShipShips;
22.23 21.23 to ensure and procure that the Owners shall not to remove or permit the removal of any part of the any Ship or any equipment belonging thereto, nor make or permit to be made any alteration in the structure type or speed of the any Ship which materially reduces reduced the value of the such Ship (unless such removal or alteration is required by statute or by her Classification Society)) without the prior written consent of the Lender which it shall have full power to withhold;
22.24 21.24 to ensure and procure that at all reasonable times and on reasonable notice, to the Owners shall permit and procure that the Lender or its authorised representative is permitted full and complete access to the Ship Ships for the purpose of inspecting the state and condition of the Ship Ships and her their cargo and papers and at the written request of the Lender deliver and procure the delivery for inspection copies of any and all contracts and documents relating to the Ship Ships whether on board or not;
22.25 21.25 to ensure and procure that the Owners shall keep and procure that the Lender is kept fully informed as to the use, the employment and the position of the each Ship and promptly provide and procure that the Lender is provided with information concerning the classification, status and insurance of the each Ship from time to time as and when so required in writing by the Lender;
22.26 21.26 to ensure and procure that when so requested by the Lender, to the Owners shall appoint and procure that two firms of (2) independent sale and purchase shipbrokers shall be appointed, as nominated or approved by the Lender, Lender to give valuations of each Ship and any other Fleet Ship, as the Ship in Dollars, such valuations to be made Lender may require without physical inspection (unless otherwise required by the Lender) and on the basis of an arm's-arms length transaction purchase by a willing buyer from a willing seller and where and, unless the Ship is subject to a charterLender otherwise requires, with or without taking into account such charter (whichever results to a lower value of the Ship)any Charter or any other charterparty in respect thereof; The average of the aforesaid two valuations shall constitute the Market Value of the Ship. In case the difference between the said two valuations is more than ten per cent (10%), a third firm of independent sale all costs and purchase shipbrokers, nominated or approved by the Lender, will be appointed and the average of all three such valuations shall constitute the Market Value of the Ship. The fees of the shipbrokers appointed to give payable in connection with such valuations shall be paid by the BorrowerBorrowers and the value of each Ship and/or other Fleet Ship (as the case may be) shall be determined by taking into account the average of the aforesaid valuations;
22.27 21.27 to ensure and procure that in the event of Compulsory Acquisition of the a Ship by any Government Entity, to the Owners shall execute and procure the execution of any assignment that the Lender may request in relation to any and all amounts which such Government Entity shall be liable to pay as compensation Requisition Compensation for the such Ship or for her use and if received by the Borrower Owners to pay and procure the payment of such amounts immediately to the Lender,;
22.28 21.28 to maintain ensure and procure that each Owner shall appoint and procure the appointment of the Manager as manager of the its Ship and shall not to vary in any material respect or terminate this appointmentappointment without the Lender’s prior written consent;
22.29 21.29 to execute ensure and procure that the execution by each other Security Party of any further document or documents required by the Lender in order to perfect or complete the security created by the Finance Documents;
22.30 to Owners shall execute and deliver to the Lender such documents of transfer as the Lender may require in the event of sale of any of the Ship Ships pursuant to any power of sale contained in the Mortgage Mortgages or any of them or which the Lender may have in law;
22.31 21.30 to ensure and procure that the Owners shall not employ the Ships or any of them nor allow their employment in any manner contrary to any law or regulation in any relevant jurisdiction including, but not limited to, the ISM Code and the ISPS Code;
21.31 to ensure and procure that the Owners shall immediately notify the Lender by fax, confirmed forthwith by letter, of:
(i) any casualty in respect of the a Ship which is or is likely to be or to become a Major Casualty;
(ii) any occurrence as a result of which the a Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(iii) any requirement or recommendation made by any insurer or classification society or by any competent authority in respect of the a Ship which is not complied with in accordance with its terms;
(iv) any arrest or detention of the a Ship, any exercise or purported exercise of any lien on the a Ship or her Earnings or her Insurances or any requisition of the a Ship for hire;
(v) any intended dry docking of a Ship;
(vi) any Environmental Claim made against the Borrower Owners or any of them or the Manager or in connection with the a Ship or any Environmental Incident in respect thereof;
(vivii) any claim for breach of the ISM Code or the ISPS Code Code, being made against a Borrower the Owners or any of them and/or the Manager or otherwise in connection with the a Ship; or
(viiviii) any other matter, event or incident, actual or threatened the effect of which will or could lead to the ISM Code or and/or the ISPS Code or the Sanctions not being complied with; and advise and procure that the Lender shall be advised in writing on a regular basis and in such detail as the Lender shall require of the Borrower's Owners’ or any other person's ’s response to any of those events or matters;
22.32 to 21.32 each Owner shall keep prominently in the Chart Room and in the Master's ’s cabin of the its Ship a framed duly completed notice printed in plain type of such size that the area of print shall cover a space not less than six inches wide and nine inches high reading as follows: This Ship is owned by [..name of Owner] of Liberia (the “Owner”) and is subject to a first priority/preferred Mortgage [and a deed of covenant collateral thereto - as the case may be] mortgage in favour of HSBC MARFIN EGNATIA BANK PLC; under Societe Anonyme. Under the terms of the said Mortgage, mortgage a certified copy of which is preserved with the Ship's papers, ’s papers neither the owners Owner nor the Captain nor any officer or agent nor any charterer of this Ship nor any other person whatsoever has any power, right or authority whatever to create, incur or permit the imposition on this Ship any commitments or encumbrances except for crews' crews wages accrued for not more than three (3) months or salvage."”; and
22.33 21.33 to comply and ensure and procure that each other Security Party shall comply with its respective obligations under each Subject Document to which it is a party and not to (and ensure and procure that no each other party thereto will) Security Party will not vary, amend or terminate any of the aforesaid documentsdocuments to which it is a party.
Appears in 1 contract
OPERATIONAL UNDERTAKINGS. The Borrower Borrowers hereby further undertakes jointly and severally undertake with the Lender to that throughout the Security Period the Borrowers shall (and shall procure that each other relevant Security Party shall) comply with the following provisions of this Clause 22 at all relevant times during the Security Period 21.1 except as the Lender may otherwise previously permit in writingpermit:
22.01 21.1 to ensure and procure that on the relevant Delivery Date each Ship shall be kept duly registered as a Liberian flag ship at under the port laws of Monrovia, Liberia, (or under the relevant Flag State in the ownership of its Owner and such other flag as may be acceptable to the Lender in its reasonable discretion) and Owner shall not to do or suffer to be done anything whereby such registration may be forfeited or imperilled;
22.02 21.2 to ensure that all the Earnings of the each Ship are shall be paid into the relevant Earnings AccountAccount opened in the name of the Owner of such Ship;
22.03 21.3 to pay as and ensure that when due and payable, all taxes, assessments, levies, governmental charges, fines and penalties lawfully imposed on and enforceable against the ShipShips or any of them shall be paid by the Borrowers, unless contested in good faith and by the appropriate proceedings;
22.04 21.4 to ensure that none of the Ship Ships (or any share thereof or interest therein) shall not be sold transferred, mortgaged, charged, hypothecated or abandoned (save in the case of maritime necessity) and that neither the Insurances nor the Earnings of the Ship Ships or any Requisition Compensation of them will be assigned otherwise than in favour without the prior written consent of the LenderLender which it shall have the power to withhold;
22.05 21.5 to ensure that none of the Ship Ships shall neither be employed and/or operated in a any manner contrary to any law or regulation regulations in any relevant jurisdiction including jurisdiction, including, without limitation to the ISM Code and the ISPS Code and all Sanctions none of the Owners and neither Borrower nor the relevant Manager will shall engage in any unlawful trade or carry any cargo that may will expose the relevant Ship to penalty, forfeiture or capture and in the event of hostilities in any part of the world (whether a war be declared or not) nor not employ the any Ship or voluntarily suffer her employment in carrying any contraband goods;
22.06 not 21.6 to ensure that no Owner shall create or permit to be created or continued any lien or Encumbrance(s) on the its Ship and/or the Insurances and/or the Earnings and/or any Requisition Compensation of its Ship (other than Permitted Liens) and to and/or shall satisfy all claims and demands which if unpaid might in law or by statute or otherwise create a lien or Encumbrance(s) and (without prejudice to the generality of the foregoing) to procure that no lien or Encumbrance(s) is shall be created or permitted to be created or continued on the its Ship for any reason whatsoeverwhatsoever other than Permitted Liens;
22.07 21.7 to ensure that on the request of the Lender, to each Owner shall provide to and procure that the Lender shall be provided with satisfactory evidence that the wages, allotments, insurance and pension contributions of the Master and crew of the its Ship are being paid in accordance with the relevant agreements articles of agreement relating to the such Ship and the relevant regulations, regulations and that all deductions from the remuneration of the Master and crew in respect of any tax liability (including all social insurance contributions) are being made and accounted for to the relevant authority and that the Master of the its Ship has no claim for disbursements other than those properly incurred by him in the ordinary trading of the such Ship on the voyage then in progress;
22.08 21.8 if any writ or proceedings are shall be issued against the any Ship or if the any Ship shall be otherwise attached, arrested or detained by any proceeding in any court or tribunal or by any government or other authority, the Borrower Owners shall immediately notify and procure that the Lender shall be notified thereof by telefax confirmed by letter and to as soon as practicably possible thereafter cause the such Ship to be released and all liens or Encumbrance(s) (except for the Mortgage and any Permitted Liens on the such Ship) thereon to be discharged forthwithdischarged;
22.09 (21.9 save for the Approved CharterCharters, no Owner shall without the prior written consent of the Lender (which consent shall not be unreasonably withheld) not to voyage or time charter the its Ship or place her under any contract for employment for any period which when aggregated with any optional periods of extension contained in the said charter or contract, would exceed twelve (12) months duration, ; provided however that in the event of the a Ship being employed (with the Lender's ’s prior written consent) under any demise or bareboat charter or any charter which when aggregated with any optional periods contained in such charter would exceed twelve (12) months duration, the Lender shall be furnished forthwith with (a) details and documentary evidence satisfactory to the Lender in its sole discretion in respect of the new employment, (b) upon Lender's ’s request, a specific assignment in favour of the Lender of the benefit of such charter together with a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer all in form and substance satisfactory to the Lender and (c) upon Lender's ’s request, a specific agreement of subordination of the rights of such charterer to the rights of the Lender;
22.10 not 21.10 no Owner shall without the prior written consent of the Lender (which it shall have full power to withhold) demise charter the its Ship for any period whatsoever;
22.11 not 21.11 no Owner shall without the prior written consent of the Lender (which it shall have full power to withhold) deliver the its Ship into the possession of any person or persons for effecting repairs or renewals to the such Ship the cost of which will exceed the amount of Seven Three hundred thousand Dollars ($700,000300,000) unless such person or persons shall have given a written undertaking to the Lender not to exercise any lien or right of detention on the such Ship in respect of the cost of such repairs or renewals;
22.12 21.12 at all times and at the Borrower's Owners’ own expense, to each Owner shall maintain the its Ship in a seaworthy condition and in good running order and repair in accordance with first class ship ownership and ship management practice and to keep and procure that the its Ship is kept in such condition as will entitle her him to the highest classification status with the Classification Society free from recommendations and notations which have not been complied with in accordance with their terms and to procure that, upon the Lender's request, that the Lender is provided with a certificate certificates issued by the relevant Classification Society that such classification status is maintained and with copies of all other classification certificates as the Lender may request in writing;
22.13 to 21.13 each Owner shall submit the its Ship regularly to such periodical or other surveys as may be required for classification purposes and, if so required by the Lender in writing, supply and procure that the Lender is supplied with copies of all survey reports issued in respect thereof;
22.14 to 21.14 the Owners shall notify and procure that the Lender is notified immediately by facsimile telefax of any recommendation or requirement imposed on the Ship Ships by the their Classification Society, the their Insurers or by any other competent authority that is not complied with in accordance with its terms;
22.15 to 21.15 the Owners shall give to and procure that the Lender is given with reasonable prior notice of any proposed dry docking or any underwater survey of the a Ship so that the Lender (if it so desires) can arrange for a representative to be present;
22.16 to 21.16 the Owners shall authorise and procure that the Classification Society and all other regulatory authorities of the Ship Ships are authorised to disclose to the Lender any information or documents requested by the Lender relating to the classification, repair, maintenance or seaworthiness of the ShipShips;
22.17 to 21.17 the Borrowers shall comply with all legal requirements whether imposed by enactment, regulation, common law or otherwise and to have on board the Ship Ships as and when legally required valid certificates showing compliance therewith;
22.18 21.18 without prejudice to Clause 22.1721.17, to the Owners shall take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to the Ship Ships in any jurisdiction in or to which the a Ship shall be employed or trade or which may otherwise be applicable to a Ship, the Ship Owners or the Borrower any of them or any other Security Party and, if the Lender shall so require, the Borrower Owners shall enter into a "“Carrier Initiative Agreement" ” with the United States Customs Service and to procure that such agreement (or any similar agreement hereafter introduced by any agency of the United States of America) is maintained by the Borrower in full force and effecteffect by the Owners;
22.19 to 21.19 the Owners shall comply with and to ensure and procure that the relevant Manager and all servants and agents of the Borrower Owners and the relevant Manager or any charterer of the Ship Ships shall comply with, the ISM Code, the ISM Code Documentation, the ISPS Code, the ISPS Code Documentation, all Sanctions, all Environmental Laws and all legislation of any state or government in relation to the ShipShips, her their ownership, operation and management or to the business of the Borrower and the Manager, Owners including, without limitation, requirements relating to maxxxxxxxxxxxx, submission of oil spill response plans, designation of qualified individuals and establishing financial responsibility;
22.20 to 21.20 the Owners shall hold and or procure that the relevant Manager shall hold all appropriate ISM Documentation and to provide the Lender with copies of the relevant ISM Code Documentation and ISPS Code Documentation duly issued to the BorrowerOwners, the relevant Manager and the Ship Ships pursuant to the ISM Code and the ISPS Code;
22.21 to keep, 21.21 the Owners shall keep or procure that it is kept, on board the kept onboard each Ship a copy of all relevant ISM Code Documentation and ISPS Code Documentation respectively;
22.22 to 21.22 the Owners shall perform and discharge all duties and liabilities imposed on the Borrower Owners or any of them under any chartercharter (including, bixx xf without limitation, the Charters), xxxx of lading or other contract relating to the ShipShips;
22.23 21.23 the Owners shall not to remove or permit the removal of any part of the any Ship or any equipment belonging thereto, nor make or permit to be made any alteration in the structure type or speed of the any Ship which materially reduces reduced the value of the such Ship (unless such removal or alteration is required by statute or by her Classification Society)) without the prior written consent of the Lender which it shall have full power to withhold;
22.24 21.24 at all reasonable times and on reasonable notice, to the Owners shall permit and procure that the Lender or its authorised representative is permitted full and complete access to the Ship Ships for the purpose of inspecting the state and condition of the Ship Ships and her their cargo and papers and at the written request of the Lender deliver and procure the delivery for inspection copies of any and all contracts and documents relating to the Ship Ships whether on board or not;
22.25 to 21.25 the Owners shall keep and procure that the Lender is kept fully informed as to the use, the employment and the position of the each Ship and promptly provide and procure that the Lender is provided with information concerning the classification, status and insurance of the each Ship from time to time as and when so required in writing by the Lender;
22.26 21.26 when so requested by the Lender, to the Owners shall appoint and procure that two firms of (2) independent sale and purchase shipbrokers shall be appointed, as nominated or approved by the Lender, Lender to give valuations of the each Ship in Dollars, such valuations to be made without physical inspection (unless otherwise required by the Lender) and on the basis of an arm's-arms length transaction purchase by a willing buyer from a willing seller and where and, unless the Ship is subject to a charterLender otherwise requires, with or without taking into account such charter (whichever results to a lower value of the Ship)any Charter or any other charterparty in respect thereof; The average of the aforesaid two valuations shall constitute the Market Value of the Ship. In case the difference between the said two valuations is more than ten per cent (10%), a third firm of independent sale all costs and purchase shipbrokers, nominated or approved by the Lender, will be appointed and the average of all three such valuations shall constitute the Market Value of the Ship. The fees of the shipbrokers appointed to give payable in connection with such valuations shall be paid by the BorrowerOwners and the value of each Ship shall be determined by taking into account the average of the aforesaid valuations;
22.27 21.27 in the event of Compulsory Acquisition of the a Ship by any Government Entity, to the Owners shall execute and procure the execution of any assignment that the Lender may request in relation to any and all amounts which such Government Entity shall be liable to pay as compensation Requisition Compensation for the such Ship or for her use and if received by the Borrower Owners to pay and procure the payment of such amounts immediately to the Lender,;
22.28 to maintain 21.28 each Owner shall appoint and procure the appointment of the relevant Manager as manager of the its Ship and shall not to vary in any material respect or terminate this appointmentappointment without the Lender’s prior written consent;
22.29 to execute and procure 21.29 the execution by each other Security Party of any further document or documents required by the Lender in order to perfect or complete the security created by the Finance Documents;
22.30 to Owners shall execute and deliver to the Lender such documents of transfer as the Lender may require in the event of sale of any of the Ship Ships pursuant to any power of sale contained in the Mortgage Mortgages or any of them or which the Lender may have in law;
22.31 21.30 the Owners shall not employ the Ships or any of them nor allow their employment in any manner contrary to any law or regulation in any relevant jurisdiction including, but not limited to, the ISM Code and the ISPS Code;
21.31 the Owners shall immediately notify the Lender by fax, confirmed forthwith by letter, of:
(i) any casualty in respect of the a Ship which is or is likely to be or to become a Major Casualty;
(ii) any occurrence as a result of which the a Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(iii) any requirement or recommendation made by any insurer or classification society or by any competent authority in respect of the a Ship which is not complied with in accordance with its terms;
(iv) any arrest or detention of the a Ship, any exercise or purported exercise of any lien on the a Ship or her Earnings or her Insurances or any requisition of the a Ship for hire;
(v) any intended dry docking of a Ship;
(vi) any Environmental Claim made against the Borrower Owners or the Manager any of them or in connection with the a Ship or any Environmental Incident in respect thereof;
(vivii) any claim for breach of the ISM Code or the ISPS Code Code, being made against a Borrower the Owners or any of them and/or the relevant Manager or otherwise in connection with the a Ship; or
(viiviii) any other matter, event or incident, actual or threatened the effect of which will or could lead to the ISM Code or and/or the ISPS Code or the Sanctions not being complied with; and advise and procure that the Lender shall be advised in writing on a regular basis and in such detail as the Lender shall require of the Borrower's Owners’ or any other person's ’s response to any of those events or matters;
22.32 to 21.32 each Owner shall keep prominently in the Chart Room and in the Master's ’s cabin of the its Ship a framed duly completed notice printed in plain type of such size that the area of print shall cover a space not less than six inches wide and nine inches high reading as follows: This Ship is owned by [..name of Owner] of Liberia (the “Owner”) and is subject to a first priority/preferred Mortgage [and a deed of covenant collateral thereto - as the case may be] mortgage in favour of HSBC MARFIN EGNATIA BANK PLC; under Societe Anonyme. Under the terms of the said Mortgage, mortgage and deed of covenants a certified copy of which is preserved with the Ship's papers, ’s papers neither the owners Owner nor the Captain nor any officer or agent nor any charterer of this Ship nor any other person whatsoever has any power, right or authority whatever to create, incur or permit the imposition on this Ship any commitments or encumbrances except for crews' crews wages accrued for not more than three (3) months or salvage."”; and
22.33 to 21.33 each Owner shall comply with its respective obligations under each Subject Document and shall not to (and ensure and procure that no other party thereto will) vary, amend or terminate any of the aforesaid documents.
Appears in 1 contract
OPERATIONAL UNDERTAKINGS. The Each Borrower hereby further undertakes with the Lender to comply with the following provisions of this Clause 22 at all relevant times during the Security Period except as the Lender may otherwise previously permit in writing:
22.01 to ensure that the each Ship shall be kept registered as a Liberian flag ship at the port of Monrovia, Liberia, (or under such other flag as may be acceptable to the Lender in its reasonable discretion) and not to do or suffer to be done anything whereby such registration may be forfeited or imperilled;
22.02 to ensure that all the Earnings of the Ship Ships are paid into the relevant Earnings Account;
22.03 to pay as and when due and payable, all taxes, assessments, levies, governmental charges, fines and penalties lawfully imposed on and enforceable against the each Ship;
22.04 to ensure that the each Ship (or any share thereof or interest therein) shall not be sold transferred, mortgaged, charged, hypothecated or abandoned (save in the case of maritime necessity) and that neither the Insurances nor the Earnings of the either Ship or any Requisition Compensation will be assigned otherwise than in favour of the Lender;
22.05 to ensure that the each Ship shall neither be employed and/or operated in a manner contrary to any law or regulation in any relevant jurisdiction including without limitation to the ISM Code and the ISPS Code and all Sanctions and neither Borrower nor the Manager will engage in any unlawful trade or carry any cargo that may expose the a Ship to penalty, forfeiture or capture and in the event of hostilities in any part of the world (whether a war be declared or not) nor employ the a Ship or voluntarily suffer her employment in carrying any contraband goods;
22.06 not to create or permit to be created or continued any lien or Encumbrance(s) on the a Ship and/or the Insurances and/or the Earnings and/or any Requisition Compensation (other than Permitted Liens) and to satisfy all claims and demands which if unpaid might in law or by statute or otherwise create a lien or Encumbrance(s) and (without prejudice to the generality of the foregoing) to procure that no lien or Encumbrance(s) is created or permitted to be created or continued on the a Ship for any reason whatsoever;
22.07 on the request of the Lender, to provide to and procure that the Lender shall be provided with satisfactory evidence that the wages, allotments, insurance and pension contributions of the Master and crew of the either Ship are being paid in accordance with the relevant agreements relating to the such Ship and the relevant regulations, and that all deductions from the remuneration of the Master and crew in respect of any tax liability (including all social insurance contributions) are being made and accounted for to the relevant authority and that the Master of the such Ship has no claim for disbursements other than those properly incurred by him in the ordinary trading of the such Ship on the voyage then in progress;
22.08 if any writ or proceedings are issued against the a Ship or if the a Ship shall be otherwise attached, arrested or detained by any proceeding in any court or tribunal or by any government or other authority, the Borrower Borrowers shall immediately notify and procure that the Lender shall be notified thereof by telefax confirmed by letter and to cause the such Ship to be released and all liens or Encumbrance(s) (except for the Mortgage and any Permitted Liens on the Ship) thereon to be discharged forthwith;
22.09 (save for the Approved Charter) not to voyage or time charter the a Ship or place her under any contract for employment for any period which when aggregated with any optional periods of extension contained in the said charter or contract, would exceed twelve (12) months duration, provided however that in the event of the a Ship being employed (with the Lender's prior written consent) under any charter which when aggregated with any optional periods contained in such charter would exceed twelve (12) months duration, the Lender shall be furnished forthwith with (a) details and documentary evidence satisfactory to the Lender in its sole discretion in respect of the new employment, (b) upon Lender's request, a specific assignment in favour of the Lender of the benefit of such charter together with a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer all in form and substance satisfactory to the Lender and (c) upon Lender's request, a specific agreement of subordination of the rights of such charterer to the rights of the Lender;
22.10 not to demise charter the a Ship for any period whatsoever;
22.11 not to deliver the a Ship into the possession of any person or persons for effecting repairs or renewals to the such Ship the cost of which will exceed the amount of Seven Five hundred thousand Dollars ($700,000500,000) unless such person or persons shall have given a written undertaking to the Lender not to exercise any lien or right of detention on the such Ship in respect of the cost of such repairs or renewals;
22.12 at all times and at the Borrower's Borrowers' own expense, to maintain the Ship Ships in a seaworthy condition and in good running order and repair in accordance with first class ship ownership and ship management practice and to keep and procure that the each Ship is kept in such condition as will entitle her to the highest classification status with the Classification Society free from recommendations and notations which have not been complied with in accordance with their terms and to procure that, upon the Lender's request, the Lender is provided with a certificate issued by the Classification Society that such classification status is maintained and with copies of all other classification certificates as the Lender may request in writing;
22.13 to submit the each Ship regularly to such periodical or other surveys as may be required for classification purposes and, if so required by the Lender in writing, supply and procure that the Lender is supplied with copies of all survey reports issued in respect thereof;
22.14 to notify and procure that the Lender is notified immediately by facsimile of any recommendation or requirement imposed on the a Ship by the Classification Society, the Insurers or by any other competent authority that is not complied with in accordance with its terms;
22.15 to give to the Lender reasonable prior notice of any proposed dry docking or any underwater survey of the a Ship so that the Lender (if it so desires) can arrange for a representative to be present;
22.16 to authorise and procure that the Classification Society and all other regulatory authorities of the either Ship are authorised to disclose to the Lender any information or documents requested by the Lender relating to the classification, repair, maintenance or seaworthiness of the a Ship;
22.17 to comply with all legal requirements whether imposed by enactment, regulation, common law or otherwise and to have on board the either Ship as and when legally required valid certificates showing compliance therewith;
22.18 without prejudice to Clause 22.17, to take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to the either Ship in any jurisdiction in or to which the a Ship shall be employed or trade or which may otherwise be applicable to the a Ship or the Borrower Borrowers and, if the Lender shall so require, the Borrower shall to enter into a "Carrier Initiative Agreement" with the United States Customs Service and to procure that such agreement (or any similar agreement hereafter introduced by any agency of the United States of America) is maintained by the Borrower Borrowers in full force and effect;
22.19 to comply with and to ensure and procure that the Manager and all servants and agents of the either Borrower and the Manager or any charterer of the a Ship shall comply with, the ISM Code, the ISM Code Documentation, the ISPS Code, the ISPS Code Documentation, all Sanctions, all Environmental Laws and all legislation of any state or government in relation to the a Ship, her ownership, operation and management or to the business of the either Borrower and the Manager, including, without limitation, requirements relating to maxxxxxmxxxxxx, submission of oil spill response plans, designation of qualified individuals and establishing financial responsibility;
22.20 to hold and procure that the Manager shall hold all appropriate ISM Documentation and to provide the Lender with copies of the relevant ISM Code Documentation and ISPS Code Documentation duly issued to the relevant Borrower, the Manager and the each Ship pursuant to the ISM Code and the ISPS Code;
22.21 to keep, or procure that it is kept, on board the either Ship a copy of all relevant ISM Code Documentation and ISPS Code Documentation respectively;
22.22 to perform and discharge all duties and liabilities imposed on the either Borrower under any charter, bixx xf bxxx of lading or other contract relating to the a Ship;
22.23 not to remove or permit the removal of any part of the a Ship or any equipment belonging thereto, nor make or permit to be made any alteration in the structure type or speed of the a Ship which materially reduces the value of the such Ship (unless such removal or alteration is required by statute or by her Classification Society);
22.24 at all reasonable times and on reasonable notice, to permit and procure that the Lender or its authorised representative is permitted full and complete access to the Ship Ships for the purpose of inspecting the state and condition of the Ship Ships and her their cargo and papers and at the written request of the Lender to deliver and procure the delivery for inspection copies of any and all contracts and documents relating to the Ship Ships whether on board or not;
22.25 to keep and procure that the Lender is kept fully informed as to the use, the employment and the position of the Ship Ships and promptly provide and procure that the Lender is provided with information concerning the classification, status and insurance of the Ship Ships from time to time as and when so required in writing by the Lender;
22.26 when so requested by the Lender, to appoint and procure that two firms of independent sale and purchase shipbrokers shall be appointed, as nominated or approved by the Lender, to give valuations of the Ship Ships in Dollars, such valuations to be made without physical inspection (unless otherwise required by the Lender) and on the basis of an arm's-length transaction by a willing buyer from a willing seller and where the a Ship is subject to a charter, with or without taking into account such charter (whichever results to a lower value of the such Ship); The average of the aforesaid two valuations shall constitute the Market Value of the ShipShips. In case the difference between the said two valuations is more than ten per cent (10%), a third firm of independent sale and purchase shipbrokers, nominated or approved by the Lender, will be appointed and the average of all three such valuations shall constitute the Market Value of the ShipShips. The fees of the shipbrokers appointed to give such valuations shall be paid by the BorrowerBorrowers;
22.27 in the event of Compulsory Acquisition of the a Ship by any Government Entity, to execute and procure the execution of any assignment that the Lender may request in relation to any and all amounts which such Government Entity shall be liable to pay as compensation for the such Ship or for her use and if received by the Borrower Owner thereof to pay and procure the payment of such amounts immediately to the Lender,
22.28 to maintain the appointment of the Manager as manager of the Ship Ships and not to vary in any material respect or terminate this appointment;
22.29 to execute and procure the execution by each other Security Party of any further document or documents required by the Lender in order to perfect or complete the security created by the Finance Security Documents;
22.30 to execute and deliver to the Lender such documents of transfer as the Lender may require in the event of sale of the a Ship pursuant to any power of sale contained in the Mortgage or which the Lender may have in law;
22.31 to immediately notify the Lender by fax, confirmed forthwith by letter, of:
(i) any casualty in respect of the a Ship which is or is likely to be or to become a Major Casualty;
(ii) any occurrence as a result of which the a Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(iii) any requirement or recommendation made by any insurer or classification society or by any competent authority in respect of the a Ship which is not complied with in accordance with its terms;
(iv) any arrest or detention of the a Ship, any exercise or purported exercise of any lien on the a Ship or her Earnings or her Insurances or any requisition of the a Ship for hire;
(v) any Environmental Claim made against the a Borrower or the Manager or in connection with the a Ship or any Environmental Incident in respect thereof;
(vi) any claim for breach of the ISM Code or the ISPS Code being made against a Borrower and/or the Manager or otherwise in connection with the a Ship; or
(vii) 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 or the Sanctions not being complied with; and advise and procure that the Lender shall be advised in writing on a regular basis and in such detail as the Lender shall require of the Borrower's Borrowers' or any other person's response to any of those events or matters;
22.32 to keep prominently in the Chart Room and in the Master's cabin of the each Ship a framed duly completed notice printed in plain type of such size that the area of print shall cover a space not less than six inches wide and nine inches high reading as follows: This Ship is owned by [..] of Liberia and is subject to a first priority/preferred priority Liberian Mortgage [and a deed of covenant collateral thereto - as the case may be] in favour of HSBC BANK PLC; under the terms of the said Mortgage, a certified copy of which is preserved with the Ship's papers, neither the owners Owners nor the Captain nor any officer or agent nor any charterer of this Ship nor any other person whatsoever has any power, right or authority whatever to create, incur or permit the imposition on this Ship any commitments or encumbrances except for crews' crews wages accrued for not more than three (3) months or salvage."; and
22.33 to comply with its respective obligations under each Subject Document and not to (and ensure and procure that no other party thereto will) vary, amend or terminate any of the aforesaid documents.
Appears in 1 contract
Samples: Financial Agreement (EuroDry Ltd.)
OPERATIONAL UNDERTAKINGS. The Borrower Borrowers hereby further undertakes jointly and severally undertake with the Lender to that throughout the Security Period the Borrowers shall (and shall procure that each other relevant Security Party shall) comply with the following provisions of this Clause 22 at all relevant times during the Security Period 21.1 except as the Lender may otherwise previously permit in writingpermit:
22.01 21.1 to ensure and procure that the each Ship shall be kept duly registered as a Liberian flag ship at under the port laws of Monrovia, Liberia, (or under such other flag as may be acceptable to the Lender relevant Flag State in the ownership of its reasonable discretion) Owner and each Owner shall not to do or suffer to be done anything whereby such registration may be forfeited or imperilled;
22.02 21.2 to ensure that all the Earnings of the each Ship are shall be paid into the Earnings AccountAccount opened in the name of the Owner of such Ship and not to open or maintain any accounts other than the Accounts with any bank other than the Lender, without the Lender’s prior written consent;
22.03 21.3 to pay as and ensure that when due and payable, all taxes, assessments, levies, governmental charges, fines and penalties lawfully imposed on and enforceable against the ShipShips or any of them shall be paid by the Borrowers, unless contested in good faith and by the appropriate proceedings;
22.04 21.4 to ensure that none of the Ship Ships (or any share thereof or interest therein) shall not be sold (except if no Event of Default has occurred and the relevant Borrower prepays the relevant amount of the Facilities determined in accordance with Clause 10.01) transferred, mortgaged, charged, hypothecated or abandoned (save in the case of maritime necessitynecessity and in the case of the Permitted Liens) and that neither the Insurances nor the Earnings of the Ship Ships or any Requisition Compensation of them will be assigned otherwise than in favour without the prior written consent of the LenderLender such consent not to be unreasonably withheld;
22.05 21.5 to ensure that none of the Ship Ships shall neither be employed and/or operated in a any manner contrary to any law or regulation regulations in any relevant jurisdiction including jurisdiction, including, without limitation to the ISM Code and the ISPS Code and all Sanctions none of the Borrowers and neither Borrower nor the Manager will shall engage in any unlawful trade or carry any cargo that may will expose the relevant Ship to penalty, forfeiture or capture and in the event of hostilities in any part of the world (whether a war be declared or not) nor not employ the any Ship or voluntarily suffer her employment in carrying any contraband goods;
22.06 not 21.6 to ensure that no Owner shall create or permit to be created or continued any lien or Encumbrance(s) on the its Ship and/or the Insurances and/or the Earnings and/or any Requisition Compensation of its Ship (other than Permitted Liens) and to and/or shall satisfy all claims and demands which if unpaid might in law or by statute or otherwise create a lien or Encumbrance(s) and (without prejudice to the generality of the foregoing) to procure that no lien or Encumbrance(s) is shall be created or permitted to be created or continued on the its Ship for any reason whatsoeverwhatsoever other than Permitted Liens;
22.07 21.7 to ensure that on the request of the Lender, to each Owner shall provide to and procure that the Lender shall be provided with satisfactory evidence that the wages, allotments, insurance and pension contributions of the Master and crew of the its Ship are being paid in accordance with the relevant agreements relating to the Ship and the relevant regulations, and that all deductions from the remuneration of the Master and crew in respect of any tax liability (including all social insurance contributions) are being made and accounted for to the relevant authority and that the Master of the its Ship has no claim for disbursements other than those properly incurred by him in the ordinary trading of the such Ship on the voyage then in progress;
22.08 21.8 if any writ or proceedings are shall be issued against the any Ship or if the any Ship shall be otherwise attached, arrested or detained by any proceeding in any court or tribunal or by any government or other authority, the Borrower Borrowers shall immediately notify and procure that the Lender shall be notified thereof by telefax confirmed by letter and to as soon as practicably possible thereafter cause the such Ship to be released and all liens or Encumbrance(s) (except for the Mortgage and any Permitted Liens on the such Ship) thereon to be discharged forthwithdischarged;
22.09 (21.9 save for the Approved CharterCharters, no Owner shall without the prior written consent of the Lender (which consent shall not be unreasonably withheld) not to voyage or time charter the its Ship or place her under any contract for employment for any period which when aggregated with any optional periods of extension contained in the said charter or contract, would exceed twelve (12) months duration, ; provided however that in the event of the a Ship being employed (with the Lender's ’s prior written consent) under any demise or bareboat charter or any charter which when aggregated with any optional periods contained in such charter would exceed twelve (12) months duration, the Lender shall be furnished forthwith with (a) details and documentary evidence satisfactory to the Lender in its sole discretion in respect of the new employment, (b) upon Lender's ’s request, a specific assignment in favour of the Lender of the benefit of such charter together with a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer all in form and substance satisfactory to the Lender and (c) upon Lender's ’s request, a specific agreement of subordination of the rights of such charterer to the rights of the Lender;
22.10 not 21.10 no Owner shall without the prior written consent of the Lender (which it shall have full power to withhold) demise charter the its Ship for any period whatsoever;
22.11 21.11 no Owner shall without the prior written consent of the Lender (which consent shall not to be unreasonably withheld ) deliver the its Ship into the possession of any person or persons for effecting repairs or renewals to the such Ship the cost of which will exceed the amount of Seven hundred and fifty thousand Dollars ($700,000750,000) unless such person or persons shall have given a written undertaking to the Lender not to exercise any lien or right of detention on the such Ship in respect of the cost of such repairs or renewals;
22.12 21.12 at all times and at the Borrower's Borrowers’ own expense, to each Owner shall maintain the its Ship in a seaworthy condition and in good running order and repair in accordance with first class ship ownership and ship management practice and to keep and procure that the Ship is Ships are kept in such condition as will entitle her them to the highest classification status with the Classification Society free from overdue recommendations and notations affecting class which have not been complied with in accordance with their terms and to procure that, upon the Lender's request, that the Lender is provided with a certificate certificates issued by the their Classification Society that such classification status is maintained and with copies of all other classification certificates as the Lender may request in writing;
22.13 to 21.13 each Owner shall submit the its Ship regularly to such periodical or other surveys as may be required for classification purposes and, if so required by the Lender in writing, supply and procure that the Lender is supplied with copies of all survey reports issued in respect thereof;
22.14 to 21.14 the Borrowers shall notify and procure that the Lender is notified immediately by facsimile telefax of any overdue recommendation or requirement affecting class imposed on the Ship Ships by the their Classification Society, the their Insurers or by any other competent authority that is not complied with in accordance with its terms;
22.15 to 21.15 the Borrowers shall give to and procure that the Lender is given with reasonable prior notice of any proposed dry docking or any underwater survey of the each Ship so that the Lender (if it so desires) can arrange for a representative to be presentpresent provided that such representative shall not interfere with the operation of such Ship ;
22.16 to 21.16 the Borrowers shall authorise and procure that the Classification Society and all other regulatory authorities of the each Ship are authorised to disclose to the Lender any information or documents requested by the Lender relating to the classification, repair, maintenance or seaworthiness of the ShipShips;
22.17 to 21.17 the Borrowers shall comply with all legal requirements whether imposed by enactment, regulation, common law or otherwise and to have on board the Ship Ships as and when legally required valid certificates showing compliance therewith;
22.18 21.18 without prejudice to Clause 22.1721.17, to the Borrowers shall take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to the Ship Ships in any jurisdiction in or to which the a Ship shall be employed or trade or which may otherwise be applicable to a Ship, the Ship Borrowers or the Borrower any of them or any other Security Party and, if the Lender shall so require, the Borrower Borrowers shall enter into a "“Carrier Initiative Agreement" ” with the United States Customs Service and to procure that such agreement (or any similar agreement hereafter introduced by any agency of the United States of America) is maintained by the Borrower in full force and effecteffect by the Borrowers;
22.19 to 21.19 the Borrowers shall comply with and to ensure and procure that the Manager and all servants and agents of the Borrower Borrowers and the Manager or any charterer of the Ship Ships shall comply with, the ISM Code, the ISM Code Documentation, the ISPS Code, the ISPS Code Documentation, all Sanctions, all Environmental Laws and all legislation of any state or government in relation to the ShipShips, her their ownership, operation and management or to the business of the Borrower and the Manager, Borrowers including, without limitation, requirements relating to maxxxxxxxxxxxx, submission of oil spill response plans, designation of qualified individuals and establishing financial responsibility;
22.20 to 21.20 the Borrowers shall hold and or procure that the Manager shall hold all appropriate ISM Documentation and to provide the Lender with copies of the relevant ISM Code Documentation and ISPS Code Documentation duly issued to the BorrowerBorrowers, the Manager and the Ship Ships pursuant to the ISM Code and the ISPS Code;
22.21 to keep, 21.21 the Borrowers shall keep or procure that it is kept, on board the kept onboard each Ship a copy of all relevant ISM Code Documentation and ISPS Code Documentation respectively;
22.22 to 21.22 the Borrowers shall perform and discharge all duties and liabilities imposed on the Borrower Borrowers or any of them under any chartercharter (including without limitation the Charters), bixx xf xxxx of lading or other contract relating to the ShipShips;
22.23 21.23 the Borrowers shall not to remove or permit the removal of any part of the any Ship or any equipment belonging thereto, nor make or permit to be made any alteration in the structure type or speed of the any Ship which materially reduces reduced the value of the such Ship (unless such removal or alteration is required by statute or by her Classification Society)) without the prior written consent of the Lender which it shall have full power to withhold;
22.24 21.24 at all reasonable times and on reasonable notice, to the Borrowers shall permit and procure that the Lender or its authorised representative is permitted full and complete access to the Ship Ships for the purpose of inspecting the state and condition of the Ship Ships and her their cargo and papers and at the written request of the Lender deliver and procure the delivery for inspection copies of any and all contracts and documents relating to the Ship Ships whether on board or not;
22.25 to 21.25 the Borrowers shall keep and procure that the Lender is kept fully informed as to the use, the employment and the position of the each Ship and promptly provide and procure that the Lender is provided with information concerning the classification, status and insurance of the each Ship from time to time as and when so required in writing by the Lender;
22.26 21.26 when so requested by the Lender, to the Borrowers shall appoint and procure that two firms of (2) independent sale and purchase shipbrokers shall be appointed, as nominated or approved by the Lender, Lender to give valuations of the each Ship in Dollars, such valuations to be made without physical inspection (unless otherwise required by the Lender) and on the basis of an arm's-arms length transaction purchase by a willing buyer from a willing seller and where and, unless the Ship is subject to a charterLender otherwise requires, with or without taking into account such charter (whichever results to a lower value of the Ship)any Charter or any other charterparty in respect thereof; The average of the aforesaid two valuations shall constitute the Market Value of the Ship. In case the difference between the said two valuations is more than ten per cent (10%), a third firm of independent sale all costs and purchase shipbrokers, nominated or approved by the Lender, will be appointed and the average of all three such valuations shall constitute the Market Value of the Ship. The fees of the shipbrokers appointed to give payable in connection with such valuations shall be paid by the BorrowerBorrowers and the value of each Ship shall be determined by taking into account the average of the aforesaid valuations;
22.27 21.27 in the event of Compulsory Acquisition of the a Ship by any Government Entity, to the Borrowers shall execute and procure the execution of any assignment that the Lender may request in relation to any and all amounts which such Government Entity shall be liable to pay as compensation Requisition Compensation for the such Ship or for her use and if received by the Borrower Borrowers to pay and procure the payment of such amounts immediately to the Lender,;
22.28 to maintain 21.28 each Owner shall appoint and procure the appointment of the Manager as manager of the its Ship and shall not to vary in any material respect or terminate this appointmentappointment without the Lender’s prior written consent;
22.29 to execute and procure 21.29 the execution by each other Security Party of any further document or documents required by the Lender in order to perfect or complete the security created by the Finance Documents;
22.30 to Borrowers shall execute and deliver to the Lender such documents of transfer as the Lender may require in the event of sale of any of the Ship Ships pursuant to any power of sale contained in the Mortgage Mortgages or any of them or which the Lender may have in law;
22.31 21.30 the Borrowers shall not employ the Ships or any of them nor allow their employment in any manner contrary to any law or regulation in any relevant jurisdiction including, but not limited to, the ISM Code and the ISPS Code;
21.31 the Borrowers shall, promptly after becoming aware of any of the following matters, immediately notify the Lender by fax, confirmed forthwith by letter, of:
(i) any casualty in respect of the a Ship which is or is likely to be or to become a Major Casualty;
(ii) any occurrence as a result of which the a Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(iii) any requirement or recommendation made by any insurer or classification society or by any competent authority in respect of the a Ship which is not complied with in accordance with its terms;
(iv) any arrest or detention of the a Ship, any exercise or purported exercise of any lien on the a Ship or her Earnings or her Insurances or any requisition of the a Ship for hire;
(v) any intended dry docking of a Ship;
(vi) any Environmental Claim made against the Borrower Borrowers or the Manager any of them or in connection with the a Ship or any Environmental Incident in respect thereof;
(vivii) any claim for breach of the ISM Code or the ISPS Code Code, being made against a Borrower the Borrowers or any of them and/or the Manager or otherwise in connection with the a Ship; or
(viiviii) any other matter, event or incident, actual or threatened the effect of which will or could lead to the ISM Code or and/or the ISPS Code or the Sanctions not being complied with; and advise and procure that the Lender shall be advised in writing on a regular basis and in such detail as the Lender shall require of the Borrower's Borrowers’ or any other person's ’s response to any of those events or matters;
22.32 to 21.32 each Owner shall keep prominently in the Chart Room and in the Master's ’s cabin of the its Ship a framed duly completed notice printed in plain type of such size that the area of print shall cover a space not less than six inches wide and nine inches high reading as follows: This Ship is owned by [..name of Owner] of Liberia (the “Owner”) and is subject to a first priority/preferred Mortgage [priority mortgage and a accompanying deed of covenant collateral thereto - as the case may be] covenants in favour of HSBC MARFIN EGNATIA BANK PLC; under Societe Anonyme of 00 Xxxxxxxxx Xxxxxx, 000 00 Xxxxxxxx, Xxxxxx, Xxxxxx. Under the terms of the said Mortgage, mortgage and deed of covenants a certified copy of which is preserved with the Ship's papers, ’s papers neither the owners Owner nor the Captain nor any officer or agent nor any charterer of this Ship nor any other person whatsoever has any power, right or authority whatever to create, incur or permit the imposition on this Ship any commitments or encumbrances except for crews' crews wages accrued for not more than three (3) months or salvage."”; and
22.33 to 21.33 each Borrower shall comply with its respective obligations under each Subject Document and shall not to (and ensure and procure that no other party thereto will) vary, amend or terminate any of the aforesaid documents.
Appears in 1 contract
Samples: Financial Agreement (Seanergy Maritime Holdings Corp.)
