SAF-CONCORD SHIPPING LTD ETERNITY SHIPPING COMPANY ALLENDALE INVESTMENTS S.A. MANOLIS SHIPPING LIMITED ALTERWALL BUSINESS INC. AGGELIKI SHIPPING LTD

Exhibit 4.54

Date 12 February 2016





SAF-CONCORD SHIPPING LTD
ETERNITY SHIPPING COMPANY
ALLENDALE INVESTMENTS X.X.
XXXXXXX SHIPPING LIMITED
ALTERWALL BUSINESS INC.
AGGELIKI SHIPPING LTD
as Borrowers


- and -


THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1
as Lenders


- and -


EUROBANK ERGASIAS S.A.
as Arranger, Agent, Account Bank and Security Trustee


__________________________________

__________________________________

relating to a secured term loan
of up to US$14,500,000










DANIOLOS LAW FIRM
Alassia Building
13 Defteras Xxxxxxxxxx Xxxxxx
000 00 Xxxxxxx
Xxxxxx
INDEX
 
CLAUSE NO.
PAGE NO.
1
INTERPRETATION
2
2
FACILITY
18
3
POSITION OF THE LENDERS
19
4
DRAWDOWN
20
5
INTEREST
20
6
INTEREST PERIODS
22
7
DEFAULT INTEREST
23
8
REPAYMENT AND PREPAYMENT
24
9
CONDITIONS PRECEDENT
25
10
REPRESENTATIONS AND WARRANTIES
26
11
GENERAL UNDERTAKINGS
28
12
CORPORATE UNDERTAKINGS
32
13
INSURANCE
34
14
SHIP COVENANTS
38
15
SECURITY COVER
42
16
PAYMENTS AND CALCULATIONS
44
17
APPLICATION OF RECEIPTS
45
18
APPLICATION OF EARNINGS
46
19
EVENTS OF DEFAULT
48
20
FEES AND EXPENSES
52
21
INDEMNITIES
53
22
NO SET-OFF OR TAX DEDUCTION
55
23
ILLEGALITY, ETC
57
24
INCREASED COSTS
58
25
SET‑OFF
59
26
TRANSFERS AND CHANGES IN LENDING OFFICES
60
27
VARIATIONS AND WAIVERS
63
28
NOTICES
65
29
SUPPLEMENTAL
66
30
LAW AND JURISDICTION
67
SCHEDULE 1  LENDERS AND COMMITMENTS
68
SCHEDULE 2  DRAWDOWN NOTICE
69
SCHEDULE 3  CONDITION PRECEDENT DOCUMENTS
70
SCHEDULE 4  TRANSFER CERTIFICATE
73
SCHEDULE 5  FORM OF COMPLIANCE CERTIFICATE
77
EXECUTION PAGES
79


THIS LOAN AGREEMENT is made on 12 February 2016

BETWEEN:

(1) (a) SAF-CONCORD SHIPPING LTD, being a company incorporated in accordance with  the laws of the Republic of Liberia whose registered office is situated at 00, Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx (“Borrower A”)

(b)            ETERNITY SHIPPING COMPANY,  being a company incorporated in accordance with the laws of the Republic of the Xxxxxxxx Islands, whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000, Xxxxxxxx xx Xxxxxxxx Xxxxxxx (“Borrower B”);

(c)            ALLENDALE INVESTMENTS S.A., a company incorporated in accordance with the laws of the Republic of Panama, whose registered office is at c/o Vives y Asociados, at Xxxxxxx X. xx Xxxxx Street, Xxxxx Xxxxxx Xxxxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxx of Panama (“Borrower C”);

(d) MANOLIS SHIPPING LIMITED, a company duly incorporated in accordance with the laws of the Republic of the Xxxxxxxx Islands, whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000, Xxxxxxxx xx Xxxxxxxx Xxxxxxx (the “Borrower D”);

(e) ALTERWALL BUSINESS INC., being a company incorporated in accordance with the laws of the Republic of Panama, whose registered office is at c/x Xxxxxxx y Asociates, Salbuda Building, top floor, East 53rd  Street, Xxxxxxxxxxxx Xxxxxxx, X.X. XXX 0000, Xxxxxx 0, Xxxxxx (the “Borrower E”); and

(f) AGGELIKI SHIPPING LTD, being a company incorporated in accordance with  the laws of the Republic of Liberia whose registered office is situated at 00, Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx (the “Borrower F”);

(2) THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1, as lenders (the “Lenders”);

(3) EUROBANK ERGASIAS S.A., a banking societé anonyme duly incorporated under the laws of Greece, having its registered office at 0, Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx, acting for the purposes of this Agreement through its office at 00, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx, as arranger (the “Arranger”);

(4) EUROBANK ERGASIAS S.A., a banking societé anonyme duly incorporated under the laws of Greece, having its registered office at 0, Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx, acting for the purposes of this Agreement through its office at 83, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx, as account bank (the “Account Bank”);

(5) EUROBANK ERGASIAS S.A., a banking societé anonyme duly incorporated under the laws of Greece, having its registered office at 0, Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx, acting for the purposes of this Agreement through its office at 00, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx, as agent (the “Agent”); and

1
(6) EUROBANK ERGASIAS S.A., a banking societé anonyme duly incorporated under the laws of Greece, having its registered office at 0, Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx, acting for the purposes of this Agreement through its office at 83, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx, as security trustee (the “Security Trustee”).

WHEREAS

The Lenders have agreed to make available to the Borrowers a secured term loan of up to the lesser of (a) US$14,500,000 and (b) 56% of the aggregate market value of the Ships, for the purpose of refinancing any and all outstanding indebtedness of the Borrowers and the Guarantor with the Lenders under the Existing Facilities remaining outstanding as at the date hereof and provide working capital to the Borrowers.

IT IS AGREED as follows:

1 INTERPRETATION
1.1 Definitions.  Subject to Clause 1.5, in this Agreement:
“Account Bank” means, in relation to any of the Cash Collateral Deposit Account, the Operating Account or the Retention Account, EUROBANK ERGASIAS S.A., acting through its Shipping Division at 00, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx, or another bank or financial institution approved by the Agent at the request of the Borrowers;
“Accounting Information” means the annual audited accounts for the Guarantor to be provided to the Agent in accordance with Clause 11.6 (a) of this Agreement (as the context may require);

“Accounts Pledges” means, together, the deed or deeds of pledge creating security over the Operating Account, the Retention Account and the Cash Collateral Deposit Account, to be executed by Borrowers in favour of the Security Trustee, in such form as the Lenders may approve or require;

“Affected Lender” has the meaning given in Clause 5.5;

“Affiliate” means a subsidiary of that person or a parent company of that person or any other subsidiary of that parent company;

“Agency and Trust Deed” means the agency and trust deed executed or to be executed between the Borrowers, the Lenders, the Arranger, the Account Bank, the Agent and the Security Trustee, in such form as the Lenders may approve or require;

“Agent” means EUROBANK ERGASIAS S.A., having its registered office at 0, Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx and acting through its office at 00, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx or any successor of it appointed under clause 5 of the Agency and Trust Deed;

“Applicable Accounts” means, as at the date of calculation or, as the case may be, in respect of an accounting period, the annual audited consolidated accounts of the Guarantor, which the Borrowers are obliged to procure to be delivered to the Agent pursuant to Clause 11.6;

“Approved Manager” means Eurobulk Ltd. of the Republic of Liberia, established in Greece under law 89/67, 378/68, 27/75 and 814/78 as amended by law 2234/94 with a branch office in Greece at 4, Messogiou & Xxxxxxx Xxxxxx, 000 00, Xxxxxxxx, Xxxxxx, or any other company appointed by the Borrowers with the prior written consent of the Agent (such consent not to be unreasonably withheld)  from time to time as the commercial, technical and operational manager of a Ship;
2
 
“Approved Manager’s Undertaking(s)-Assignment(s)” means, in relation to a Ship, a letter of undertaking executed or (as the context may require) to be executed by the Approved Manager in favour of the Security Trustee for that Ship in the terms reasonably required by the Security Trustee, agreeing certain matters in relation to the Approved Manager and subordinating the rights of the Approved Manager against that Ship and the relevant Borrower to the rights of the Creditor Parties under the Finance Documents and incorporating also a first priority assignment of all the rights which the Approved Manager may have in the Insurances relating to that Ship (other than the right to be reimbursed for P&I claims under the “pay and be paid” rule), in such form as the Agent, acting on the instructions of the Majority Lenders, may approve or require;

“Approved Flag” means the Republic of Liberia and/or the Republic of the Xxxxxxxx Islands and/or the Republic of Panama or such other flag as the Agent may, in sole and absolute discretion, approve as the flag on which a Ship shall be registered;

“Approved Flag State” means the Republic of Liberia and/or the Republic of the Xxxxxxxx Islands and/or the republic of Panama or any other country in which the Agent may, in its sole and absolute discretion, approve that a Ship be registered;

“Arranger” means EUROBANK ERGASIAS S.A., having its registered office at 0, Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx and acting through its office at 83, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx;

“Assignment” or “Assignments” means a first priority deed of assignment of all Insurances, Earnings, Requisition Compensation as well as of any Charter Rights in respect of any Charter in relation to a Ship, to be executed by the relevant Borrower in favour of the Security Trustee, in form and substance satisfactory to the Agent (acting on the instructions of the Majority Lenders) and respective notices of assignment and acknowledgements thereof and an “Assignment” means any of them;

“Availability Period” means the period commencing on the date of this Agreement and ending on:

(a) the Latest Permissible Drawdown Date or such later date as the Lenders may agree with the Borrowers; or
(b) if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated;
“Borrowers” means each one of the Borrowers as specified in the beginning of this Agreement;

“Business Day”  means a day other that a Saturday or Sunday on which banks are open in New York, London, Athens, Piraeus, Cyprus, Luxembourg and, in respect of a day on which a payment is required to be made under a Finance Document, also in New York City;
3
 
“Capital Control Approval” means the approval of the competent authorities of Greece in accordance with the applicable regulations of the Bank of Greece and the legislation relating to capital controls and other economic measures imposed by the Government of Greece;

“Cash Collateral Deposit” means an interest bearing amount of United States Dollars two million eight hundred thousand (US$2,800,000) which is to be held during the Security Period as cash collateral to the Cash Collateral Deposit Account;
“Cash Collateral Deposit Account” means an account opened or to be opened with the Agent or the Security Trustee or (at the Borrowers’ option and subject to the satisfaction of the Agent’s relevant reasonable requirements) with any of their affiliates outside Greece, in Cyprus or Luxembourg in the name of the Guarantor where the Cash Collateral Deposit is to be maintained during the Security Period;

“Charter” means any charter or other contract of employment of more than twelve months’ duration in respect of a Ship acceptable to the Agent;

"Charterer" in respect of any Charter, means a first class charterer in the opinion of the Agent and acceptable to the Agent in its discretion, the Agent’s approval not to be unreasonably withheld;

"Charter Rights" in respect of a Ship, means all rights and benefits accruing to the relevant Borrower under or arising out of the relevant Charter and not forming part of the Earnings;

“Code” means the United States Internal Revenue Code of 1986 (as amended);

“Commitment” means, in relation to a Lender, the amount set opposite its name in Schedule 1, or, as the case may require, the amount specified in the relevant Transfer Certificate, as that amount may be reduced, cancelled or terminated in accordance with this Agreement (and “Total Commitments” means the aggregate of the Commitments of all the Lenders);

“Commitment Letter” means the Commitment Letter dated 23rd December, 2015 addressed by the Bank to the Corporate Guarantor and duly accepted by the Borrowers and the Corporate Guarantors on 24 December 2015;

“Compliance Certificate” means a certificate referring to a compliance date in the form set out in Schedule 5 (or in any other form which the Agent approves) to be provided together with the financial accounts provided in accordance with Clauses 11.6 and 12.8;

“Compliance Date” means 31 December of each calendar year (or such other dates as the Agent may agree pursuant to Clause 12.8);

“Contractual Currency” has the meaning given in Clause 21.5;

“Contribution” means, in relation to a Lender, the part of the Loan which is owing to that Lender;
4

“Creditor Party” means the Agent, the Security Trustee, the Arranger, the Account Bank and any Lender, whether as at the date of this Agreement or at any later time;

“Dollars” and “$” means the lawful currency for the time being of the United States of America;

“Drawdown Date” means the date, being a Business Day falling not later than the Latest Permissible Drawdown Date requested by the Borrowers for the Loan to be made, or (as the context requires) the date on which the Loan is actually made;

“Drawdown Notice” means a notice in the form set out in Schedule 2 (or in any other form which the Agent approves or reasonably requires);

“Earnings” means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the owner of a Ship or (as the case may be) to the Security Trustee pursuant to the Assignment in connection with that Ship and which arise out of the use or operation of that Ship, including (but not limited to):

(a) all freight, hire and passage moneys, compensation payable to the owner of a Ship or (as the case may be) to the Security Trustee pursuant to the Assignment in connection with that Ship in the event of requisition of that Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship;

(b) all moneys which are at any time payable under Insurances in respect of loss of earnings;

(c) contributions of any nature whatsoever in respect of general average; and

(d) if and whenever a Ship is employed on terms whereby any moneys falling within paragraphs (a) or (b) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship;

“Environmental Claim” means:

(a) any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or

(b) any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,

and “claim” means a claim for damages, compensation, fines, penalties or any other payment of any kind whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset;
 
“Environmental Incident” means:

(a) any release of Environmentally Sensitive Material from a Ship; or
5

(b) any incident in which Environmentally Sensitive Material is released from a vessel other than a Ship and which involves a collision between that Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which that Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or that Ship or the owner of that Ship and/or any operator or manager is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or

(c) any other incident in which Environmentally Sensitive Material is released otherwise than from a Ship and in connection with which that Ship is actually or potentially liable to be arrested and/or where the owner of that Ship and/or any operator or manager of that Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action;

“Environmental Law” means any law relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material;

“Environmentally Sensitive Material” means oil, oil products and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous;

“Event of Default” means any of the events or circumstances described in Clause 19.1;

“Existing Facilities” means:

(a)            a term loan facility in the amount of (originally) Ten Million United States Dollars (US$10,000,000) granted by the Lender under its former name EFG Eurobank Ergasias S.A. to Borrower A, as borrower, pursuant to the Existing Facility Agreement A, out of which the principal amount remaining outstanding on the date of the Commitment Letter was three million two hundred fifty thousand United States Dollars (US$3,250,000) and following repayment in full of such amount on 15 January 2016, currently is zero (nil);

(b)            a term loan facility in the amount of (originally) Eight Million United States Dollars (US$8,000,000) granted by the Lender to the Guarantor, as borrower, pursuant to the Existing Facility Agreement B, out of which the principal amount remaining currently outstanding is five million three hundred seventy five thousand United States Dollars (US$5,375,000); and

(c)            a term loan facility in the amount of (originally) Five Million United States Dollars (US$5,000,000) granted by the Lender to (inter alia) Borrower D and Borrowers E, as borrowers, pursuant to the Existing Facility Agreement C, out of which the principal amount remaining currently outstanding is four million five hundred thousand United States Dollars (US$4,500,000)

and "Existing Facility" means any of them;
6

“Existing Facility Agreements” means:

(a)            a term loan facility agreement dated 9th January 2009 made between Borrower A and the Lender under its former name EFG Eurobank Ergasias S.A., made between Borrower A as borrower, and the Lender under its former name EFG Eurobank Ergasias S.A., as same has been thereafter assigned to Eurobank EFG Private Bank Luxembourg SA (now called Eurobank Private Bank Luxembourg SA) (the “Assignee”) pursuant to an assignment agreement dated 29th July 2011, as amended by an amendment agreement dated 29th November 2011 (together, “Assignment Agreement”), made between the Lender under its former name EFG Eurobank Ergasias S.A. as assignor and the Assignee, and as furthermore same has been amended by a first supplemental agreement dated 29 October 2012 made (inter alia) between Borrower A and the Assignee (“Existing Facility Agreement A”);

(b)            a term loan facility agreement dated 3 February 2014 made between the Guarantor as borrower and the Lender listed in Schedule (“Existing Facility Agreement B”); and

(c)            a term loan facility agreement dated 10 June 2015 made between (inter alia)  Borrower D and Borrowers E and the Lender listed in Schedule (“Existing Facility Agreement C”),

and "Existing Facility Agreement" means any of them;

“FATCA” means:

(a) sections 1471 to 1474 of the Code or any associated regulations or other official guidance;

(b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or

(c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;

“FATCA Application Date” means:

(a) in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 January 2014;

(b) in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or

(c) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
 
or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement;

“FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA;

7
 
“FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction;

“FATCA FFI” means a foreign financial institution as defined in section 1471(d)(4) of the Code which, if any Creditor Party is not a FATCA Exempt Party, could be required to make a FATCA Deduction;

“FATCA Non-Exempt Lender” means any Lender who is not a FATCA Exempt Party;

“FATCA Protected Lender” means any Lender irrevocably designated as a "FATCA Protected Lender" by the Borrowers by notice to that Lender and the Agent at least six months prior to the earliest FATCA Application Date for a payment by a Party to that Lender (or to the Agent for the account of that Lender);

“Final Maturity Date” means in respect of the Loan the date falling thirty six (36) months after the Drawdown Date of the Commitment but no later than February 28th, 2019;

“Finance Documents” means:

(a) this Agreement;

(b) the Drawdown Notice;

(c) the Agency and Trust Deed;

(d) the Guarantee;

(e) the Mortgages;

(f) the Assignments;

(g) the Accounts Pledges;

(h) the Approved Manager’s Undertakings;

(i) the Guarantor’s Undertaking(s)-Assignments; and

(j) any other document (whether creating a Security Interest or not) which is executed at any time by the Borrowers or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders under this Agreement or any of the documents referred to in this definition;

“Financial Indebtedness” means, in relation to a person (the “debtor”), a liability of the debtor:
 
(a) for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;

(b) under any loan stock, bond, note or other security issued by the debtor;

(c) under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
 
8

(d) under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;

(e) under any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or

(f) under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within (a) to (e) if the references to the debtor referred to the other person;

“Financial Year” means, in relation to the Borrowers, each period of 1 year commencing on 1 January in respect of which its accounts are or ought to be prepared;

“GAAP” means generally accepted accounting principles as from time to time in effect in the United States of America;

“Group” means the Guarantor and its subsidiaries (including the Borrowers);

"Guarantee" means the guarantee and indemnity given or, as the context may require, to be given by the Guarantor in form and substance satisfactory to the Agent, as security for the Secured Liabilities and any and all obligations of the Borrowers under this Agreement;

“Guarantor” means EUROSEAS LTD. being a company incorporated in accordance with the laws of the Republic of the Xxxxxxxx Islands, whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000 or any other legal entity nominated by the Borrowers and accepted by the Agent which have, or as the context may require, shall or may at any time guarantee the obligations of the Borrowers under this Agreement and/or those of the other Security Parties to the Lenders and/or any other Creditor Party;

“Guarantor’s Undertaking(s)-Assignment(s)” means, in relation to a Ship, an undertaking to the Security Trustee in respect of that Ship executed or (as the context may require) to be executed by the Guarantor, being nominated as co-assured in the insurance policies for that Ship whereby the Guarantor would undertake throughout the Security Period, to subordinate any and all claims it may have against the relevant Borrower and/or that Ship to the claims of the Lenders under the Loan Agreement and the Security Documents and would incorporate also a first priority assignment of all the rights which the Guarantor may have in the Insurances relating to that Ship (other than the right to be reimbursed for P&I claims under the “pay and be paid” rule);
“Insurances” means:

(a) all policies and contracts of insurance, including entries of a Ship in any protection and indemnity or war risks association, which are effected in respect of that Ship; and

(b) all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium;

“Interest Period” means a period determined in accordance with Clause 6;
9
“ISM Code” means the International Safety Management Code (including the guidelines on its implementation), adopted by the International Maritime Organisation Assembly as Resolutions A.741 (18) (as amended by XXX 000 (73)) and A.913(22) (superseding Resolution A.788(19)), as the same may be amended, supplemented or superseded from time to time (and the terms “safety management system”, “Safety Management Certificate” and “Document of Compliance” have the same meanings as are given to them in the ISM Code);

“ISPS Code” means the International Ship and Port Facility Security Code adopted by the International Maritime Organisation (as the same may be amended, supplemented or superseded from time to time);

“ISSC” means a valid and current International Ship Security Certificate issued under the ISPS Code;

“Latest Permissible Drawdown Date” means the 28th February 2016 being the latest date for drawdown of the Loan pursuant to Clause 2 hereof or such later date as the Lenders may agree in writing;

“Lender” means, subject to Clause 26.6:

(a) a bank or financial institution listed in Schedule 1 and acting through its branch indicated in Schedule 1 (or through another branch notified to the Borrowers under Clause 26.14), its successor or assign, unless it has delivered a Transfer Certificate or Certificates covering the entire amounts of its Commitment and its Contribution; and

(b) the holder for the time being of a valid Transfer Certificate;

“LIBOR” means, in relation to any amount and for any period, the offered rate (if any) for deposits of United States Dollars for such amount and for the period which is:

(a) the London interbank offered rate administrated by ICE Benchmark Administration Limited (or if ICE Benchmark Administration Limited ceases to act in the role of administrating and publishing LIBOR rates, the equivalent rate published by a subsequently appointed administrator of LIBOR) for United States Dollars for the relevant period displayed on the appropriate page of the Reuters screen at or about 11:00 a.m. (London time) on the Quotation Date for such period (and if the agreed page is replaced or service ceases to be available, the Agent may specify another page or service displaying the appropriate rate after consultation with the Borrowers); or
(b) if on such date no such rate is displayed, the arithmetic mean of the rates (rounded upwards to the nearest 1/16th of one per cent) quoted to the Agent as the rate for deposits of United States Dollars in an amount comparable to the amount in relation to which LIBOR is to be determined and for a period equivalent to the relevant period offered by the Agent to prime banks in the London Interbank Market at or about 11:00 a.m. (London time) on the Quotation Date for such period,
10
provided however that if the rate determined pursuant to paragraph (a) or paragraph (b) above is lower than zero (0), then LIBOR shall be zero (0);“Loan” means the principal amount for the time being outstanding under this Agreement;

“Major Casualty” means any casualty to a Ship in respect of which the claim or the aggregate of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $300,000 or the equivalent in any other currency;

“Majority Lenders” means:

(a) before the Loan has been made, Lenders whose Commitments are equal to or greater than 66 ⅔ per cent. of the Total Commitments; and

(b) after the Loan has been made, Lenders whose Contributions are equal to or greater than 66 ⅔ per cent. of the Loan;

“Mandatory Costs” shall have the meaning given to it in Clause 21.8;

“Margin” means six per cent (6%) per annum;

“Market Value” means the market value of a Ship determined prior to the Drawdown Date and at least once a year by one separate, independent and reputable first class sale and purchase broker, appointed by and reporting to the Agent certifying the market value such Ship on the basis of the value of that Ship charter free at the expense of the Borrowers in accordance with Clause 15.4 and 15.9 hereof;

“Material Adverse Effect” means, in the reasonable opinion of the Majority Lenders, a material adverse effect on the Borrowers’ ability to meet their obligations under any of the Finance Documents;

“Material Adverse Change” means any event or series of events which, in the reasonable opinion of the Majority Lenders, has or will have a Material Adverse Effect;

“Mortgage” or “Mortgages” means the first priority ship mortgage on each of the Ships to be executed by the relevant Borrower in favour of the Security Trustee under the Approved Flag (and deed of covenant collateral thereto if applicable), in such form as the Security Agent may approve or require, as the same may from time to time be amended and/or supplemented;

“Negotiation Period” has the meaning given in Clause 5.8;

“Net Worth” means the value of the total assets of the Guarantor minus total liabilities, as expressed in its financial statements;
 
“Notifying Lender” has the meaning given in Clause 23.1 or Clause 24.1 as the context requires;

“Operating Account” means an account in the name of each Borrower with the Agent or the Security Trustee, or any other account (with that or another office of the Agent in Cyprus or Luxembourg) which is designated by the Agent, following consultation with the Borrowers and the Guarantor, as the Operating Account for the purposes of this Agreement;

“Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union;
11
“Party” means a party to this Agreement or a Finance Document;

“PATRIOT Act” means the United States Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Improvement and Reauthorization Act of 2005 (H.R. 3199);

“Payment Currency” has the meaning given in Clause 21.5;

“Permitted Security Interests” means:

(a) Security Interests created by the Finance Documents;

(b) liens for unpaid crew’s wages in accordance with usual maritime practice;

(c) liens for salvage;

(d) liens arising by operation of law for not more than 2 months’ prepaid hire under any charter in relation to a Ship not prohibited by this Agreement;

(e) liens for master’s disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the owner of such Ship in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 14.12(h);

(f) any Security Interest created in favour of a plaintiff or defendant in any action of the court or tribunal before whom such action is brought as security for costs and expenses where a Borrower is prosecuting or defending such action in good faith by appropriate steps; and

(g) Security Interests arising by operation of law in respect of taxes which are not overdue for payment other than taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made;

“Pertinent Jurisdiction”, in relation to a company, means:

(a) England and Wales;
 
(b) the country under the laws of which the company is incorporated or formed;

(c) a country in which the company's central management and control is or has recently been exercised;

(d) a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax;

(e) a country in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are situated, in which the company maintains a permanent place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and
12

(f) a country the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c) above;

“Potential Event of Default” means an event or circumstance which, with the giving of any notice, the lapse of time and/or the satisfaction of any other condition, would constitute an Event of Default;

“Quotation Date” means, in relation to any Interest Period (or any other period for which an interest rate is to be determined under any provision of a Finance Document), the day on which quotations would ordinarily be given by leading banks in the London Interbank Market for deposits in the currency in relation to which such rate is to be determined for delivery on the first day of that Interest Period or other period;

“Repayment Date” means a date on which a repayment is required to be made under Clause 8;

“Requisition Compensation” includes all compensation or other moneys payable by reason of any act or event such as is referred to in paragraph (b) of the definition of “Total Loss”;

“Retention Account” means an interest bearing account in the name of the Borrowers with the Agent or the Security Trustee, or any other account (with that or another office of the Agent in Cyprus or Luxembourg) which is designated by the Agent as the Retention Account following consultation with the Borrowers and the Guarantor for the purposes of this Agreement;

“Restricted Person” means a person with whom transactions are currently prohibited or restricted under any Sanctions List or any worldwide sanctions (both as applicable to any Security Party) or is otherwise the target of Sanctions;

“Sanctions” means any economic sanctions laws, regulations, embargoes or restrictive measures applicable to any Security Party that are administered, enacted or enforced by:

(a)            the United States government;
 
(b)            the United Nations;

(c) the European Union or any of its Member States, including without limitation, the United Kingdom;

(d) any country to which any Borrower, or any other member of the Group is bound; or

(e) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (OFAC), the United States Department of State and Her Majesty’s Treasury (HMT) (together Sanctions Authorities);

13
“Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list issued by OFAC, the “Consolidated List of Financial Sanctions Targets and Investment Ban List” issued by HMT, or any similar list issued or maintained or made public by any of the Sanctions Authorities as applicable to any Security Party;

“Secured Liabilities” means all liabilities which the Borrowers, the Security Parties or any of them have, at the date of this Agreement or at any later time or times, under or by virtue of the Finance Documents and in the case of the Approved Manager under or by virtue of the Approved Manager’s Undertaking(s)-Assignment(s) or any judgment relating to such Finance Documents; and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country;

“Security Interest” means:

(a) a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;

(b) the rights of the plaintiff under an action in rem in which the vessel concerned has been arrested or a writ has been issued or similar step taken; and

(c) any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution;

“Security Party” means the Guarantor, the Approved Manager, and any other person (except a Creditor Party) who, as a surety or mortgagor, as a party to any subordination or priorities arrangement, or in any similar capacity, executes a document falling within paragraph (l) of the definition of “Finance Documents”;

“Security Period” means the period commencing on the date of this Agreement and ending on such date as all obligations whatsoever of all of the Security Parties under or pursuant to the Finance Documents whensoever arising have been irrevocably paid, performed and/or complied with;
 
“Security Trustee” means EUROBANK ERGASIAS S.A., having its registered office at 0, Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx and acting through its office at 00, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx or any successor of it appointed under clause 5 of the Agency and Trust Deed;

“Ships” means:

(a) the m.v. “XXXXXX X.”, built in 1998, being of 27,011 tons gross, 16,011 tons net, currently registered under the flag of the Republic of Liberia with Official Number 10909 in the name of Borrower A (“Ship A”);

(b) the m.v. “CAPTAIN COSTAS” built in 1992, being of 21053 gross tons registered under the Xxxxxxxx Islands flag with Official Number 2892 in the ownership of Borrower B (“Ship B”);
14
(c) the m.v. “XXX XXXXXX”, built in 1993, being of 15183 gross tons registered under the Panama flag with IMO 9055448 in the ownership of Borrower C (“Ship C”);

(d) the m.v. “MANOLIS P.” built in 1995, being of 14962 tons gross, 7579 tons net, currently registered under the flag of the Republic of the Xxxxxxxx Islands with Official Number 2849  in the name of Borrower D (“Ship D”);

(e) the m.v. “NINOS”, built in 1990, being of 15122 gross tons and of 6244 net tons currently registered under the Panama flag with IMO N 8909082 in the ownership of Borrower E  (“Ship E”);

(f) the m.v. “AGGELIKI P.” built in 1998, being of 23,809 tons gross, 10474 tons net, currently registered under the flag of the Republic of Liberia with Official Number 14698 in the name of Borrower F (“Ship F”);

and a “Ship” means any of them;
“Total Loss” means:

(a) actual, constructive, compromised, agreed or arranged total loss of a Ship;

(b) any expropriation, confiscation, requisition or acquisition of a Ship, whether for full consideration, a consideration less than her proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority, excluding a requisition for hire unless it is within 40 days redelivered to the full control of such Ship’s owner;

(c) any arrest, capture, seizure or detention of a Ship (including any hijacking or theft) unless she is within 40 days redelivered to the full control of such Ship’s owner;

“Total Loss Date” means:

(a)
in the case of an actual loss of a Ship, the date on which it occurred or, if that is unknown, the date when such Ship was last heard of;
 
(b) in the case of a constructive, compromised, agreed or arranged total loss of a Ship, the earliest of:

(i) the date on which a notice of abandonment is given to the insurers; and

(ii) the date of any compromise, arrangement or agreement made by or on behalf of the owner of a Ship, with the Ship's insurers in which the insurers agree to treat that Ship as a total loss; and

(c) in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred;

“Transfer Certificate” has the meaning given in Clause 26.2;
15
“Trust Property” has the meaning given in clause 3.1 of the Agency and Trust Deed; and

“US Tax Obligor” means:

(a) a Party which is resident for tax purposes in the United States of America; or

(b) a Party some or all of whose payments under the Finance Documents are from sources within the United States for US Federal income tax purposes.

1.2 Construction of certain terms.  In this Agreement:
“approved”  means, for the purposes of Clause 13, approved in writing by the Agent;

“asset” includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or other payment;

“company” includes any partnership, joint venture and unincorporated association;

“consent” includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation;

“contingent liability” means a liability which is not certain to arise and/or the amount of which remains unascertained;

“document” includes a deed; also a letter, fax or telex;

“excess risks”  means the proportion of claims for general average, salvage and salvage charges not recoverable under the hull and machinery policies in respect of a Ship in consequence of her insured value being less than the value at which that Ship is assessed for the purpose of such claims;

“expense” means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any value added or other tax applicable thereon;
“law” includes any form of delegated legislation, any order or decree, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;

“legal or administrative action” means any legal proceeding or arbitration and any administrative or regulatory action or investigation;

“liability” includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise;

“months”  shall be construed in accordance with Clause 1.3;

“obligatory insurances”  means all insurances effected, or which a Borrower is obliged to effect, under Clause 13 below or any other provision of this Agreement or another Finance Document;

“parent company”  has the meaning given in Clause 1.4;
16
“person”  includes any company; any state, political sub-division of a state and local or municipal authority; and any international organisation;

“policy”, in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms;

“protection and indemnity risks”  means the usual risks covered by a protection and indemnity association managed in London, including pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation therein of clause 1 of the Institute Time Clauses (Hulls)(1/10/83) or clause 8 of the Institute Time Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision in the Norwegian Marine Insurance Plan;

“regulation” includes any regulation, rule, official directive, request or guideline (either having the force of law or compliance with which is reasonable in the ordinary course of business of the party concerned) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self‑regulatory or other authority or organisation;

“subsidiary”  has the meaning given in Clause 1.4;

“successor” includes any person who is entitled (by assignment, novation, merger or otherwise) to any other person’s rights under this Agreement or any other Finance Document (or any interest in those rights) or who, as administrator, liquidator or otherwise, is entitled to exercise those rights; and in particular references to a successor include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation of it or any other person;

“tax”  includes any present or future tax, duty, impost, levy or charge of any kind which is imposed by any state, any political sub-division of a state or any local or municipal authority (including any such imposed in connection with exchange controls), and any connected penalty, interest or fine; and
 
“war risks” includes the risk of mines and all risks excluded by clause 23 of the Institute Time Clauses (Hulls) (1/10/83) or clause 24 of the Institute Time Clauses (Hulls) (1/11/1995).

1.3 Meaning of “month”.  A period of one or more “months” ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (“the numerically corresponding day”), but:
(a) on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or
(b) on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day;
and “month” and “monthly” shall be construed accordingly.
17
 
1.4 Meaning of “subsidiary”. A company (S) is a subsidiary of another company (P) if:
(a) a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P; or
(b) P has direct or indirect control over a majority of the voting rights attached to the issued shares of S; or
(c) P has the direct or indirect power to appoint or remove a majority of the directors of S; or
(d) P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance with the wishes of P;
and any company of which S is a subsidiary is a parent company of S.

1.5 General Interpretation.
(a) In this Agreement:
(i) references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;
(ii) references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise; and
(iii) words denoting the singular number shall include the plural and vice versa.
(b) Clauses 1.1 to 1.4 and paragraph (a) of this Clause 1.5 apply unless the contrary intention appears.
(c) References in Clause 1.1 to a document being in the form of a particular Appendix include references to that form with any modifications to that form which the Agent (with the authorisation of the Majority Lenders in the case of substantial modifications) approves or reasonably requires.
(d) The clause headings shall not affect the interpretation of this Agreement.
1.6 Event of Default.  A Potential Event of Default and/or an Event of Default) are “continuing” if either of them has not been remedied or waived.
2 FACILITY
2.1 Amount of facility.  Subject to the satisfaction of all conditions precedent and in reliance on the representations and warranties made in or in accordance with them and furthermore subject to Capital Control Approval and the other provisions of this Agreement, the Lenders shall make available to the Borrowers a secured term loan in one advance not exceeding the lesser of (a) $14,500,000 and (b) 56% of the aggregate market value of the Ships as at the Drawdown Date.
2.2 Lenders' participations in Loan.  Subject to the other provisions of this Agreement, each Lender shall participate in the Loan in the proportion which, as at the Drawdown Date, its Commitment bears to the Total Commitments.
18
 
2.3 Purpose of Loan.  The Borrowers undertake with each Creditor Party to use the Loan only for the purpose stated in the preamble to this Agreement.
3 POSITION OF THE LENDERS
3.1 Interests of Lenders several.  The rights of the Lenders under this Agreement (but without prejudice to the provisions of this Agreement relating to or requiring action by the Majority Lenders) are several; accordingly each Lender shall have the right to protect and enforce its rights arising out of this Agreement and it shall not be necessary for any other Lender and/or any other Creditor Party to be joined as an additional party in any proceedings for this purpose.
3.2 Independent action by a Lender.  None of the Lenders shall enforce, exercise any rights, remedies or powers or grant any consents or releases under or pursuant to, or otherwise have a direct recourse to the security and/or guarantees constituted by any of the Finance Documents without the prior written consent of the Majority Lenders but, provided such consent has been obtained, it shall not be necessary for any other Lender to be joined as an additional party in any proceedings for this purpose.
3.3 Obligations of Lenders several.  The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement to which it is a party shall not result in:
(a) the obligations of the other Lenders being increased; nor
(b) the Borrowers, any Security Party, any other Lender being discharged (in whole or in part) from its obligations under any Finance Document,
and in no circumstances shall a Lender have any responsibility for a failure of another Lender to perform its obligations under this Agreement.

3.4 Parties bound by certain actions of Majority Lenders.  Every Lender and any other Creditor Party, the Borrowers and each Security Party shall be bound by:
(a) any determination made, or action taken, by the Majority Lenders under any provision of a Finance Document;
(b) any instruction or authorisation given by the Majority Lenders to the Agent or the Security Trustee under or in connection with any Finance Document;
(c) any action taken (or in good faith purportedly taken) by the Agent or the Security Trustee in accordance with such an instruction or authorisation.
3.5 Reliance on action of Agent.  The Borrowers and each Security Party shall be entitled to assume that the Majority Lenders have duly given any instruction or authorisation which, under any provision of a Finance Document, is required in relation to any action which the Agent has taken or is about to take.
3.6 Construction.  In Clauses 3.4 and 3.5 references to action taken include (without limitation) the granting of any waiver or consent, an approval of any document and an agreement to any matter.
19
4 DRAWDOWN
4.1 Request for Loan.  Subject to the following conditions, the Borrowers may request the Loan to be made by ensuring that the Agent receives a completed Drawdown Notice not later than 10.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date.
4.2 Availability.  The conditions referred to in Clause 4.1 are that:
(a) the Drawdown Date has to be a Business Day during the Latest Permissible Drawdown Date;
(b) the amount of the Loan shall not exceed the lesser of (i) $14,500,000 and (ii) 56% of the aggregate market value of the Ships as at the Drawdown Date; and
(c) the Borrowers have complied with the provisions of Clause 9.1 with respect to the Loan.
4.3 Notification to Lenders of receipt of the Drawdown Notice.  The Agent shall promptly notify the Lenders that it has received the Drawdown Notice and shall inform each Lender of:
(a) the amount of the Loan and the Drawdown Date;
(b) the amount of that Lender's participation in the Loan; and
(c) the duration of the first Interest Period.
4.4 Drawdown Notice irrevocable.  The Drawdown Notice must be signed by a director or other authorised person of the Borrowers; and once served, the Drawdown Notice cannot be revoked without the prior consent of the Agent, acting on the authority of the Majority Lenders.
4.5 Lenders to make available Contributions.  Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date, make available to the Agent for the account of the Borrowers the amount due from that Lender on the Drawdown Date under Clause 2.2.
4.6 Disbursement of Loan.  Subject to the provisions of this Agreement, the Agent shall on the Drawdown Date pay to the Borrowers the amounts which the Agent receives from the Lenders under Clause 4.5; and that payment to the Borrowers shall be made:
(a) to the account which the Borrowers specify in the Drawdown Notice; and
(b) in the same funds as the Agent received the payments from the Lenders.
4.7 Disbursement of Loan to third party.   The payment by the Agent under Clause 4.6 shall constitute the making of the Loan and the Borrowers shall thereupon become indebted, as principal and direct obligors, to each Lender in an amount equal to that Lender's Contribution.
5 INTEREST
5.1 Payment of normal interest.  Subject to the provisions of this Agreement, interest on the Loan in respect of each Interest Period shall be paid by the Borrowers on the last day of that Interest Period.
20
5.2 Normal rate of interest.  Subject to the provisions of this Agreement, the rate of interest on the Loan in respect of an Interest Period shall be the aggregate of the Margin and LIBOR for that Interest Period.
5.3 Payment of accrued interest.  In the case of an Interest Period longer than 3 months, accrued interest shall be paid every 3 months during that Interest Period and on the last day of that Interest Period.
5.4 Notification of Interest Periods and rates of normal interest.  The Agent shall notify the Borrowers and each Lender of:
(a) each rate of interest; and
(b) the duration of each Interest Period;
as soon as reasonably practicable after each is determined.

5.5 Market disruption.  The following provisions of this Clause 5 apply if:
(a) at least one Business Day before the start of an Interest Period, Lenders having Contributions together amounting to more than 40 per cent. of the Loan (or, if the Loan has not been made, Commitments amounting to more than 40 per cent. of the Total Commitments) notify the Agent that LIBOR fixed by the Agent would not accurately reflect the cost to those Lenders of funding their respective Contributions (or any part of them) during the Interest Period in the London Interbank Dollar Market at or about 11.00 a.m. (London time) on the second Business Day before the commencement of the Interest Period (provided always that any such notifications by any such Lenders shall be duly substantiated); or
(b) at least one Business Day before the start of an Interest Period, the Agent is notified by a Lender (the “Affected Lender”) that for any reason it is unable to obtain Dollars in the London Interbank Market in order to fund its Contribution (or any part of it) during the Interest Period.
5.6 Notification of market disruption.  The Agent shall promptly notify the Borrowers and each of the Lenders stating the circumstances falling within Clause 5.5 which have caused its notice to be given.
5.7
 Suspension of drawdown.  If the Agent's notice under Clause 5.6 is served before the Loan is made:
(a) in a case falling within paragraph (a) of Clause 5.5, the Lenders' obligations to make the Loan;
(b) in a case falling within paragraph (b) of Clause 5.5, the Affected Lender's obligation to participate in the Loan;
shall be suspended while the circumstances referred to in the Agent's notice continue.
21

5.8 Negotiation of alternative rate of interest.  If the Agent’s notice under Clause 5.6 is served after the Loan is made, the Borrowers, the Agent and the Lenders or (as the case may be) the Affected Lender shall use reasonable endeavours to agree, within the 30 Business Days after the date on which the Agent serves its notice under Clause 5.6 (the “Negotiation Period”), an alternative interest rate or (as the case may be) an alternative basis for the Lenders or (as the case may be) the Affected Lender to fund or continue to fund their or its Contribution during the Interest Period concerned.
5.9 Application of agreed alternative rate of interest.  Any alternative interest rate or an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed.
5.10 Alternative rate of interest in absence of agreement.  If an alternative interest rate or alternative basis is not agreed within the Negotiation Period, and the relevant  circumstances are continuing at the end of the Negotiation Period, then the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender, set an interest period and interest rate representing the cost of funding of the Lenders or (as the case may be) the Affected Lender in Dollars or in any available currency of their or its Contribution plus the Margin; and the procedure provided for by this Clause 5.10 shall be repeated if the relevant circumstances are continuing at the end of the interest period so set by the Agent.
5.11 Notice of prepayment.  If the Borrowers do not agree with an interest rate set by the Agent under Clause 5.10, the Borrowers may give the Agent not less than 15 Business Days' notice of their intention to prepay the Loan at the end of the interest period set by the Agent.
5.12 Prepayment; termination of Commitments.  A notice under Clause 5.11 shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Affected Lender of the Borrowers’ notice of intended prepayment; and:
(a) on the date on which the Agent serves that notice, the Total Commitments or (as the case may require) the Commitment of the Affected Lender shall be cancelled; and
(b) on the last Business Day of the interest period set by the Agent, the Borrowers shall prepay (without premium or penalty) the Loan or, as the case may be, the Affected Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin.
5.13 Application of prepayment.  The provisions of Clause 8 shall apply in relation to the prepayment.
6 INTEREST PERIODS
6.1 Commencement of Interest Periods. The first Interest Period shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
6.2 Duration of normal Interest Periods.  Subject to Clauses 6.3 and 6.4, each Interest Period shall be:
(a) 3, 6, or 9 months as notified by the Borrowers to the Agent not later than 11.00 am (London time) 3 Business Days before the commencement of the Interest Period; or
(b) 3 months, if the Borrowers fail to notify the Agent by the time specified in paragraph (a); or
(c) such other period as the Agent may, with the Majority Lenders' authority, agree with the Borrowers.
22
6.3 Duration of Interest Periods for repayment instalments.  In respect of an amount due to be repaid under Clause 8 on a particular Repayment Date, an Interest Period shall end on that Repayment Date. No Interest Period shall extend beyond the final Repayment Date.
6.4 Non-availability of matching deposits for Interest Period selected.  If, after the Borrowers have selected and the Lenders have agreed to an Interest Period, any Lender notifies the Agent by 10:00 a.m. (London time) on the second Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences, then that Interest Period shall have such duration as the Agent after having consulted with the Borrowers may determine.
7 DEFAULT INTEREST
7.1 Payment of default interest on overdue amounts.  The Borrowers shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by the Borrowers under any Finance Document which the Agent, the Security Trustee or any other Creditor Party does not receive on or before the relevant due date for payment thereunder, that is:
(a) the date on which such Finance Documents provide that such amount is due for payment; or
(b) if a Finance Document provides that such amount is payable on demand, three (3) days following the date on which the demand is served; or
(c) if such amount has become immediately due and payable under Clause 19.4, the date on which it became immediately due and payable.
7.2 Default rate of interest and its calculation.  Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be two point fifty per cent (2.50%)
per annum above the Margin plus, in respect of successive periods of any duration (including at call) up to 3 months which the Agent may select from time to time:
(i) LIBOR; or
(ii) if the Agent determines that Dollar deposits for any such period are not being made available to a Lender or (as the case may be) Lenders by leading banks in the London Interbank Market in the ordinary course of business, a rate from time to time determined by the Agent by reference to the cost of funds to the Agent from such other sources as the Agent may from time to time determine.
7.3 Notification of interest periods and default rates.  The Agent shall promptly notify the Lenders and the Borrowers of each interest rate determined by the Agent under Clause 7.2 and of each period selected by the Agent for the purposes of that Clause; but this shall not be taken to imply that the Borrowers are liable to pay such interest only with effect from the date of the Agent's notification.
23
7.4 Payment of accrued default interest.  Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due.
7.5 Compounding of default interest.  Any such interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded.
8 REPAYMENT AND PREPAYMENT
8.1 Amount of repayment instalments.  The Borrowers shall repay the Loan by twelve (12) consecutive quarterly instalments, each of which shall be in the amount of Four hundred and sixty thousand Dollars ($460,000) and by a balloon payment of Eight million nine hundred and eighty thousand Dollars ($8,980,000).
8.2 Repayment Dates.  The first instalment shall be repaid on the date falling three (3) months after the Drawdown Date, each subsequent instalment shall be repaid at three monthly intervals thereafter and the balloon payment shall be repaid concurrently with the twelfth and final repayment instalment, which shall be repaid on the date falling on the earlier of (i) the third annual anniversary of the Drawdown Date and (ii) the Final Maturity Date.
Provided always that if the amount of the Loan drawn down hereunder is less than $14,500,000 then the amount of the repayment instalments and of the balloon payment shall be reduced on a pro rata basis.
8.3 Final Repayment Date.  On the final Repayment Date, the Borrowers shall additionally pay to the Lenders all other sums then accrued or owing under any Finance Document.
8.4 Voluntary prepayment.  Subject to the following conditions, the Borrowers may prepay the whole or part of the Loan on the last day of an Interest Period.
8.5 Conditions for voluntary prepayment.  The conditions referred to in Clause 8.4 are that:
(a) a partial prepayment shall be in the minimum amount of Two hundred fifty thousand Dollars ($250,000) or a multiple thereof;
(b) the Agent has received from the Borrowers at least ten (10) Business Days prior written confirmative and irrevocable notice specifying the amount to be prepaid and the date on which the prepayment is to be made (such date shall be the last day of an Interest Period); and
(c) the Borrowers have provided evidence satisfactory to the Agent that any consent required by the Borrowers or any Security Party in connection with the prepayment has been obtained and remains in force, and that any requirement relevant to this Agreement which affects the Borrowers or any Security Party has been complied with.
8.6 Effect of notice of prepayment.  A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authority of the Majority Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrowers on the date for prepayment specified in the prepayment notice.
24
8.7 Notification of notice of prepayment.  The Agent shall notify the Lenders promptly upon receiving a prepayment notice, and shall provide any Lender which so requests with a copy of any document delivered by the Borrowers under Clause 8.5(c).
8.8 Mandatory prepayment.  Upon sale or Total Loss of any of the Ships, following the application of the relevant proceeds, the Loan outstanding will be reduced pro rata and for the avoidance of any doubt, any amount so applied shall be used to reduce the outstanding Repayment Instalments and the balloon payment on a pro rata basis.
8.9 Amounts payable on prepayment.  A prepayment shall be made together with accrued interest (and any other amount payable under Clause 21 below or otherwise) in respect of the Loan and, if the prepayment is not made on the last day of an Interest Period, together with any sums payable under Clause 21.2 but without premium or penalty).
8.10 Application of partial prepayment.  Each partial prepayment shall be applied against the repayment instalments specified in Clause 8.1 (including the balloon payment) on a pro rata basis.
8.11 No reborrowing.  No amount prepaid or repaid may be re-borrowed.
9 CONDITIONS PRECEDENT
9.1 Documents, fees and no default.  Each Lender's obligation to contribute to the Loan is subject to the following conditions precedent:
(a) that, on or before the date of signing of this Agreement, the Agent receives the documents described in Part A of Schedule 3 in form and substance satisfactory to the Agent and its lawyers;
(b) that, on or before the date of drawdown of the Loan, the Lender receives the documents described in Part B in Schedule 3 in form and substance satisfactory to the Agent and its lawyers;
(c) that, on or before the service of the Drawdown Notice, the Agent receives the relevant fees payable pursuant to Clause 20.1 and has received payment of the expenses referred to in Clause 20.2;
(d) that at the date of the Drawdown Notice, at the Drawdown Date on the first day of each Interest Period and on the date of each Compliance Certificate:
(i) no Event of Default or Potential Event of Default has occurred and is continuing or would result from the borrowing of the Loan;
(ii) the representations and warranties in Clause 10 and those of the Borrowers or any Security Party which are set out in the other Finance Documents would be true and not misleading in any material respect if repeated on each of those dates with reference to the circumstances then existing;
(iii) none of the circumstances contemplated by Clause 5.5 has occurred and is continuing;
(iv) there has not been a Material Adverse Change in the financial positon or state of affairs of the Borrowers from that disclosed to the Agent prior to the date of this Agreement;
25
(e) that, if the ratio set out in Clause 15.1 were applied immediately following the making of the Loan, the Borrowers would not be obliged to provide additional security or prepay part of the Loan under that Clause; and
(f) that the Agent has received, and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which the Agent (acting reasonably)_may, with the authorisation of the Majority Lenders, request by notice to the Borrowers prior to the Drawdown Date.
9.2 Waiver of conditions precedent.  If the Majority Lenders, at their discretion, permit the Loan to be borrowed before certain of the conditions referred to in Clause 9.1 are satisfied, the Borrowers shall ensure that those conditions are satisfied within 5 Business Days after the Drawdown Date (or such longer period as the Agent may, with the authority of the Majority Lenders, specify).
10 REPRESENTATIONS AND WARRANTIES
10.1 General.  The Borrowers represent and warrant to each Creditor Party as follows:
10.2 Status.  Each Borrower is duly incorporated and validly existing and in good standing under the laws of its country of incorporation; neither the Borrowers nor any Security Party is a FATCA FFI or a US Tax Obligor.
10.3 Share capital and ownership.  Each Borrower incorporated in Liberia and/or in the Xxxxxxxx Islands has an authorised share capital divided into 500 registered and/or bearer shares and each Borrower incorporated in the Republic of Panama has an authorised share capital divided into 100 shares and the legal title and ownership of all those shares is held, free of any Security Interest or other claim, by the Guarantor.
10.4 Corporate power.  Each Borrower has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:
(a) to execute the Finance Documents to which it is a party; and
(b) to borrow under this Agreement and to make all the payments contemplated by, and to comply with, the Finance Documents to which each Borrower is a Party.
10.5 Consents in force.  All the consents referred to in Clause 10.4 remain in force and nothing has occurred which makes any of them liable to revocation.
10.6 Legal validity; effective Security Interests.  The Finance Documents to which each Borrower is a party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents):
(a) constitute that Borrower's legal, valid and binding obligations enforceable against that Borrower in accordance with their respective terms; and
(b) create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,
subject to any relevant insolvency laws affecting creditors' rights generally.
26
10.7 No third party Security Interests.  Without limiting the generality of Clause 10.6, at the time of the execution and delivery of each Finance Document:
(a) the Borrowers will have the right to create all the Security Interests which that Finance Document purports to create; and
(b) no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
10.8 No conflicts.  The execution by the Borrowers of each Finance Document to which they are a party, and the borrowing by the Borrowers of the Loan, and its compliance with each Finance Document to which they are a party will not involve or lead to a contravention of:
(a) any law or regulation in any Pertinent Jurisdiction; or
(b) the constitutional documents of the Borrowers; or
(c) any contractual or other obligation or restriction which is binding on the Borrowers or any of its assets, and will not have a Material Adverse Effect.
10.9 No withholding taxes.  All payments which the Borrowers are liable to make under the Finance Documents to which it is a party may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.
10.10 No default.  No Event of Default or Potential Event of Default has occurred and is continuing.
10.11 Information.  All information which has been provided in writing by or on behalf of the Borrowers or any Security Party to any Creditor Party in connection with any Finance Document satisfied the requirements of Clause 11.6; all audited and consolidated accounts which have been so provided satisfied the requirements of Clause 11.7; and there has been no Material Adverse Change in the financial position or state of affairs of the Borrowers from that disclosed in the latest of those accounts which constitutes a Material Adverse Effect.
10.12 No litigation.  No legal or administrative action involving the Borrowers or any Security Party (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has been commenced or taken or, to the Borrowers’ knowledge, is likely to be commenced or taken which, in either case and if determined adversely, would be likely to have a Material Adverse Effect.
10.13 Compliance with certain undertakings.  At the date of this Agreement, the Borrowers are in compliance with Clauses 11.2, 11.5, 11.9, 11.11 and 11.17.
10.14 Taxes paid.  The Borrowers have paid all taxes applicable to, or imposed on or in relation to it and its business.
10.15 ISM Code and ISPS Code compliance.  All requirements of the ISM Code and the ISPS Code as they relate to the Borrowers, the Approved Manager and the Ships have been complied with.
10.16 No Money Laundering.  Without prejudice to the generality of Clause 2.3, in relation to the borrowing by the Borrowers of the Loan, the performance and discharge of their obligations and liabilities under the Finance Documents, and the transactions and other arrangements effected or contemplated by the Finance Documents to which the Borrowers are a party, the Borrowers confirm that (i) they are acting for their  own account, (ii) that they will use the proceeds of the Loan for their  own benefit, under their full responsibility and exclusively for the purposes specified in this Agreement and (iii) that the foregoing will not involve or lead to contravention of any law, official requirements or other regulatory measure or procedure implemented to combat “money laundering” (as defined in Article 1 of the Directive (91/308/EEC) of the Council of the European Communities).
27
10.17 Patriot Act.  To the extent applicable to any of the Borrowers, the Borrowers are in compliance with (i) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto and (ii) the PATRIOT Act. No part of the proceeds of the Loan will be used, directly or indirectly, for any payments to any government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
11 GENERAL UNDERTAKINGS
11.1 General.  The Borrowers undertake with each Creditor Party to comply with the following provisions of this Clause 11 at all times during the Security Period except as the Agent may, with the authority of the Majority Lenders, otherwise permit.
11.2 Title; negative pledge; pari passu.  Each Borrower will:
(a) ensure that the Ships will maintain their present ownership, management, control and ultimate beneficial ownership and the Borrowers will hold the legal title to, and own the entire beneficial interest in the Ships’ Insurances and Earnings, free from all Security Interests and other interests and rights of every kind, except for those created by the Finance Documents and except
for Permitted Security Interests. For the avoidance of doubt the Lenders consent and agree to any changes relating to the shareholders of the Guarantor’s trading shares in the normal course of business and confirm that such changes do not violate the terms of this Agreement;
(b) not create or permit to arise any Security Interest (except for Permitted Security Interests) over any of its asset, present or future; and
(c) procure that its liabilities under the Finance Documents to which it is a party to will rank at least pari passu with all its other present and future unsecured liabilities, except for liabilities which are mandatorily preferred by law.
11.3 No disposal of assets.  The Borrowers will not (without the prior written consent of the Agent, acting with authority from the Majority Lenders) transfer, lease or otherwise dispose of:
(a) all or a substantial part of their assets, whether by one transaction or a number of transactions, whether related or not; or
(b) any debt payable to them or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation.
28
11.4 No other liabilities or obligations to be incurred.  The Borrowers will not incur any liability or obligation except (i) liabilities and obligations under the Finance Documents to which they are a party and (ii) liabilities or obligations incurred in the ordinary course of their business of operating and chartering the Ships.
11.5 Information provided to be accurate.  All financial and other information which is provided in writing by or on behalf of the Borrowers under or in connection with any Finance Document will be true and not misleading in any material respect and will not omit any material fact or consideration.
11.6 Provision of financial statements.  The Borrowers will:
(a) procure that the Guarantor furnishes the Agent, with annual, audited and consolidated financial statements of the Guarantor within 180 days after the end of the financial year concerned, and prepared in accordance with GAAP consistently applied, such obligation commencing from 1st January 2015;
(b) send to the Agent, together with the Accounting Information referred to in paragraph (a) above, a Compliance Certificate; and
(c) provide the Agent from time to time as the Agent may reasonably request and in form and substance satisfactory to the Agent with any information on the financial condition, commitments, business and operations of the Borrowers and any other Security Party.
11.7 Form of financial statements.  All financial statements delivered under Clause 11.6 will:
(a) give a true and fair view of the state of affairs of the Guarantor, or as the case may be, of the Borrowers at the date of those accounts and of the profit for the period to which those accounts relate; and
(b) fully disclose or provide for all significant liabilities of the Guarantor, or as the case may be, of the Borrowers for the period to which those accounts relate, to the Agent’s satisfaction.
11.8 Consents.  The Borrowers will maintain in force and promptly obtain or renew, and will promptly send certified copies to the Agent of, all consents required:
(a) for the Borrowers and any Security Party to perform their respective obligations under each of the Finance Documents to which each of them is a party;
(b) for the validity or enforceability of any Finance Document to which each of the Borrowers and any Security Party are is party,
and the Borrowers will comply (and will ensure that each Security Party will comply) with the terms of all such consents.

11.9 Maintenance of Security Interests.  The Borrowers will:
(a) at their own cost, do all that they reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and
29
(b) without limiting the generality of paragraph (a) above, at their own cost, promptly register, file, record or enrol any Finance Document with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which, in the reasonable opinion of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
11.10 Notification of litigation.  The Borrowers will provide the Agent with details of any legal or administrative action involving a Borrower, the Approved Manager and any other Security Party or a Ship, its Earnings or its Insurances as soon as such action is instituted or it becomes apparent to the Borrowers that it is likely to be instituted, unless it is clear that the legal or administrative action cannot be considered as having a material adverse effect on the business, assets or financial condition of them or as affecting the validity or enforceability  of any Finance Document.
11.11 Principal place of business.  The Borrowers will not establish, or do anything as a result of which they would be deemed to have, a place of business in the United Kingdom or the United States of America.
11.12 Confirmation of no default.  The Borrowers will, not more than once per quarter and within 2 Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by 2 directors of the Borrowers and which:
(a) states that no Event of Default or Potential Event of Default has occurred; or
(b) states that no Event of Default or Potential Event of Default has occurred, except for a specified event or matter, of which all material details are given.
11.13 Notification of default.  The Borrowers will notify the Agent as soon as the Borrowers become aware of:
(a) the occurrence of an Event of Default or a Potential Event of Default which is continuing; or
(b) any matter which indicates that an Event of Default or a Potential Event of Default may have occurred,
and will thereafter keep the Agent fully up‑to‑date with all developments.

11.14 Provision of further information.  The Borrowers will inform the Agent of all major financial developments in the Borrowers and the Guarantor such as new loans, refinancing/restructuring of existing loans, new acquisitions and sales, contracts for term employment of the Ships and furthermore will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information relating to:
(a) the Borrowers, the Ships, their Insurances or their Earnings; or
(b) any other matter relevant to, or to any provision of, a Finance Document,
which may be requested by any Creditor Party at any time.
30

11.15 Provision of customer information. The Borrowers will produce such documents and evidence as the Lenders shall from time to time require, based on applicable laws and regulations from time to time and the Lenders’ own internal guidelines from time to time, relating to the Lenders’ knowledge of its customers.
11.16 Ownership.  The Borrowers or, as the case may be, any other corporate Security Party shall ensure that, throughout the Security Period without the prior written consent of the Agent, which shall not be unreasonably withheld, there shall be no change in the Directors and Officers in the Borrowers and in the Chief Executive Officer(s) of the Guarantor and moreover the Borrowers shall ensure that no change shall be made directly or indirectly in the ownership of the Borrowers, the beneficial ownership of the Guarantor, or the control of the Borrowers without the prior written consent of the Agent, which shall not be unreasonably withheld. For the avoidance of doubt the Lenders consent and agree to any changes relating to the Guarantor’s trading shares in the normal course of business and confirm that such changes do not violate the terms of this Agreement.
11.17 Sanctions
The Borrowers undertake (and shall procure that each Security Party and any Affiliate of any of them undertakes) that:

(a) no member of the Group, no Security Party nor any of their subsidiaries, nor any of their respective directors, officers, employees (nor, to the knowledge of such Security Party, any of their affiliates, agents or representatives):

(i)            is a Restricted Party;

(ii) is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Restricted Party, and none of such persons owns or controls a Restricted Party;

(iii)            owns or controls a Restricted Party; or
 
(iv) has received notice of or is aware of or is subject to any claim,proceedings, formal notice or investigation with respect to Sanctions;

(b) no proceeds of the Loan or any part thereof shall be made available, directly or indirectly, to any subsidiary, joint venture partner or other person to fund any trade, business or other activities involving or for the benefit of a Restricted Party or in any country or territory, that, at the time of such funding, is a Sanctioned Country nor shall they be otherwise directly or indirectly, applied in a manner that would result in a violation of Sanctions by any Security Party or for any purpose prohibited by Sanctions;

(c) no Security Party nor any of their subsidiaries, nor any of their respective directors, officers, employees (nor, to the knowledge of such Security Party, any of their affiliates, agents or representatives) has taken any action resulting in a violation by such persons of Sanctions or which constitutes or would constitute any such violation by the Borrowers or any Security Party.

11.18 Provision of copies and translation of documents.  The Borrowers will supply the Agent with a sufficient number of copies of the documents referred to above to provide 1 copy for each Creditor Party.
31
12 CORPORATE UNDERTAKINGS
12.1 General.  The Borrowers also undertake with each Creditor Party to comply with the following provisions of this Clause 12 at all times during the Security Period except as the Agent may, with the authority of the Majority Lenders, otherwise permit.
12.2 Maintenance of status.  Each Borrower will maintain its separate corporate existence and remain in good standing under the laws of its incorporation.
12.3 Negative undertakings.  Each Borrower will not:
(a) carry on any type of business other than the ownership, chartering and operation of its Ship in accordance with its constitutional documents;
(b) make any form of distribution (other than payment of a dividend pursuant to Clause 12.4) or effect any form of redemption, purchase, reduction or return of share capital or issue, allot or grant any person a right to any shares in its capital; or
(c) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), which consent and instructions will not be unreasonably be withheld, incur any debt or provide any form of credit or issue any guarantee to any person, except in the ordinary course of business; or
(d) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), open or maintain any account with any bank or financial institution except accounts with the Agent (or another office of the Agent in Cyprus or Luxembourg) for the purposes of the Finance Documents and accounts notified to the Agent prior to the date of this Agreement; or
(e) acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative; or
(f) enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation, or change its name; or
(g) purchase any further assets (other than the Ship owned by such Borrower), either directly or indirectly (through subsidiaries); or
(h) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), which consent and instructions will not be unreasonably be withheld, incur any other Financial Indebtedness. Any shareholder loans, inter company loans, affiliate loans and third party loans to the Borrowers shall be fully subordinated to the rights of the Creditor Parties under the Loan Agreement and the Finance Documents, on terms satisfactory to the Agent in its sole discretion.
12.4 Dividends.  The Borrowers will not declare or pay any dividends or other distribution following the occurrence of an Event of Default which is continuing without the prior written consent of the Agents.
32
12.5 Cash Collateral Deposit.  The Borrowers shall ensure that the Guarantor will maintain from the Drawdown Date and at all times thereafter during the Security Period, in an account with the Agent or the Security Trustee or (at the Borrowers’ option and subject to the satisfaction of the Agent’s relevant reasonable requirements) with any of their affiliates outside Greece, in Cyprus or Luxembourg the Cash Collateral Deposit which is, and will not be subject to any Security Interest (other than pursuant to the relevant Account Pledge) as cash collateral.
12.6 Debt to equity ratio. The Borrowers will ensure that the aggregate debt to equity ratio of the Ships will not exceed 75% of the aggregate Market Value of the Ships obtained in accordance with Clause 15.4.
12.7 Minimum Net Worth. The Borrowers will ensure that the Guarantor’s minimum Net Worth listed in Nasdaq will be United States Dollars fifteen million (USD15,000,000).
12.8 Compliance Check.  On each Compliance Date, compliance with the undertakings contained in Clause 12.5 and 15.1 shall be determined by reference to the Accounting Information for the twelve month period in each Financial Year of the Borrowers (commencing with the twelve month period ending on 31 December 2015) delivered to the Agent pursuant to the Agreement.  At the same time as it delivers that Accounting Information, the Borrowers shall deliver to the Agent a Compliance Certificate signed by a director of the Borrowers. If, prior to the delivery of a Compliance Certificate, the Borrowers become aware that such undertakings will not be complied with, the Borrowers shall immediately notify the Agent thereof.
12.9 Application of FATCA
The Borrowers shall not become (and shall procure that no Security Party shall become) a FATCA FFI or a US Tax Obligor, without the prior written consent of the Lenders.
13 INSURANCE
13.1 General.  The Borrowers undertake with each Creditor Party to comply with the following provisions of this Clause 13 at all times during the Security Period, except as the Agent may (with the authority of the Majority Lenders), otherwise permit.
13.2 Maintenance of obligatory insurances.  The Borrowers shall keep the Ships insured at the expense of the Borrowers against:
(a) fire and usual marine risks (including hull and machinery and excess risks);
(b) war risks (including war protection and indemnity liabilities, terrorism, piracy and confiscation); and
(c) protection and indemnity risks (including cover for oil pollution liability risks); and
(d) loss of hire; and
(e) any other risks against which the Majority Lenders consider, having regard to practices and other circumstances prevailing at the relevant time, it would in the opinion of the Majority Lenders be reasonable for the Borrowers to insure and which are specified by the Security Trustee by notice to the Borrowers.
13.3 Terms of obligatory insurances.  The Borrowers shall effect such insurances:
(a) in Dollars;
33
(b) in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of (i) 125% of the amount of the Loan and (ii) the aggregate market value of the Ships;
(c) in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry (with the international group of protection and indemnity clubs) and the international marine insurance market (currently $1,000,000,000);
(d) in relation to protection and indemnity risks in respect of the full value and tonnage of the Ship;
(e) on approved terms; and
(f) through approved brokers and with approved insurance companies and/or underwriters and/or war risks associations, and protection and indemnity risks shall be placed with a member of the International Group of P&I Clubs.
13.4 Further protections for the Creditor Parties.  In addition to the terms set out in Clause 13.3, the Borrowers shall procure that the obligatory insurances shall:
(a) be in the name of the respective Borrower or whenever the Security Trustee so requires, name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Trustee, but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
(b) procure that the insurers shall note the Security Trustee’s interest and endorse the relevant notices of assignment and Loss Payable Clause on the relevant certificates of entry or policies and shall furnish the Security Trustee with a copy of such certificates of entry or policies;
(c) use their best enceavors to provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set‑off, counterclaim or deductions or condition whatsoever;
(d) provide that following an Event of Default which is continuing the Security Trustee may make proof of loss if the Borrowers fail to do so.
13.5 Renewal of obligatory insurances.  The Borrowers shall:
(a) at least 21 days before the expiry of any obligatory insurance:
(i) notify the Security Trustee of the brokers (or other insurers) and any protection and indemnity or war risks association through or with whom the Borrowers propose to renew that insurance and of the proposed terms of renewal; and
(ii) in case of any material change in insurance cover, obtain the Majority Lenders' approval to the matters referred to in paragraph (i) above;
(b) at least 14 days before the expiry of any obligatory insurance, renew the insurance; and
34
(c) procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall before the expiry of the current insurances notify the Security Trustee in writing of the terms and conditions of the renewal.
13.6 Copies of policies; letters of undertaking.  The Borrowers shall ensure that all approved brokers provide the Security Trustee with copies of all policies relating to the obligatory insurances which they effect or renew and of a letter or letters or undertaking in a form required by the Security Trustee and including undertakings by the approved brokers that:
(a) they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 13.4;
(b) they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause;
(c) they will advise the Security Trustee immediately of any material change to the terms of the obligatory insurances;
(d) they will notify the Security Trustee, not less than 7 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from the Borrowers or their agents and, in the event of their receiving instructions to renew, they will promptly notify the Security Trustee of the terms of the instructions; and
(e) if the insurances form part of a fleet cover, they will not set off any claims on the Ships against premiums due for other vessels under the fleet cover or against premiums due for other insurances; neither will they cancel the insurance cover of the Ships for reason of non-payment of such premiums; and they will arrange for a separate policy to be issued in respect of the Ships forthwith upon being so requested by the Security Trustee.
13.7 Copies of certificates of entry.  The Borrowers shall ensure that, from any protection and indemnity and/or war risks associations in which a Ship is entered, the Security Trustee is provided with:
(a) a certified copy of the certificate of entry for that Ship;
(b) a letter or letters of undertaking in such form as may be required by the Security Trustee; and
(c) a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Ship.
13.8 Deposit of original policies.  The Borrowers shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or renewed.
13.9 Payment of premiums.  The Borrowers shall punctually pay all premiums or other sums payable in respect of the obligatory insurances and produce all relevant receipts when so required by the Security Trustee.
13.10 Guarantees.  The Borrowers shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.
35
13.11 Restrictions on employment.  The Borrowers shall not employ the Ships owned by them, nor permit them to be employed, outside the cover provided by any obligatory insurances.
13.12 Compliance with terms of insurances.  The Borrowers shall not do or omit to do (or permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable thereunder repayable in whole or in part; and, in particular:
(a) the Borrowers shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause 13.7(c) above) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval;
(b) the Borrowers shall not make any changes relating to the classification or classification society or manager or operator of the Ships approved by the underwriters of the obligatory insurances; and
(c) the Borrowers shall not employ the Ships, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
13.13 Alteration to terms of insurances.  The Borrowers shall neither make or agree to any material alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance without the prior written consent of the Security Trustee (not to be unreasonably withheld).
13.14 Settlement of claims.  The Borrowers shall not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty without the prior written consent of the Security Trustee (which consent will not be unreasonably withheld), and shall do all things necessary and provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any time become payable in respect of the obligatory insurances in accordance with the Finance Documents.
13.15 Provision of copies of communications.  A Borrower shall, if required by the Security Trustee, provide the Security Trustee, at the time of each such communication, copies of all material written communications between that Borrower and:
(a) the approved brokers; and
(b) the approved protection and indemnity and/or war risks associations; and
(c) the approved insurance companies and/or underwriters, which relate directly or indirectly to:
(i) such Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
36
(ii) any credit arrangements made between such Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory insurances .
13.16 Provision of information.  In addition, a Borrower shall promptly provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such designated person) reasonably requests for the purpose of:
(a) obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
(b) effecting, maintaining or renewing any such insurances as are referred to in Clause 13.17 below or dealing with or considering any matters relating to any such insurances,
and that Borrower shall, forthwith upon demand, indemnify the Security Trustee in respect of all fees and other expenses incurred by or for the account of the Security Trustee in connection with any such report as is referred to in paragraph (a) above (it being understood however that prior to the occurrence of an Event of Default which is continuing the Borrowers will only bear the costs of such insurance reports once per year).

13.17 Mortgagees’ interest, additional perils.  The Agent shall be entitled from time to time to effect, maintain and renew a mortgagee’s interest additional perils pollution insurance and a mortgagees’ interest insurance in an amount equal to 115% of the Loan and otherwise on such terms, through such insurers and generally in such manner as the Lenders may from time to time consider appropriate and the Borrowers shall upon demand against appropriate vouchers/invoices fully indemnify the Lenders in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.
13.18 Review of insurance requirements.  The Majority Lenders shall be entitled to review the requirements of this Clause 13 from time to time in order to take account of any changes in circumstances after the date of this Agreement which are, in the reasonable opinion of the Majority Lenders, significant and capable of affecting the Borrowers or the Ships and their insurance (including, without limitation, changes in the availability or the cost of insurance coverage or the risks to which the Borrowers may be subject), and, prior to the occurrence of an Event of Default which is continuing, may appoint insurance consultants in relation to this review at the cost of the Borrowers, subject to such appointment taking place once per year.
13.19 Modification of insurance requirements.  The Security Trustee shall notify the Borrowers of any proposed modification under Clause 13.18 to the requirements of this Clause 13 which the Majority Lenders (acting reasonably) consider appropriate in the circumstances.
13.20 Compliance with instructions.  The Security Trustee shall be entitled but will not be bound to (without prejudice to or limitation of any other rights which it may have or acquire under any Finance Document) to effect the insurances of a Ship  in the amount and in terms acceptable to the Security Trustee from time to time at the cost and on behalf of the Borrowers.
37
14 SHIPS COVENANTS
14.1 General.  The Borrowers also undertake with each Creditor Party to comply with the following provisions of this Clause 14 at all times during the Security Period, except as the Agent (with the authority of the Majority Lenders) may otherwise permit.
14.2 Ship's name and registration.  Each Borrower shall keep its Ship registered in its name under the Approved Flag; shall not do or allow to be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port of registry or flag of that Ship without the prior written consent of the Agent (acting on the authority of the Majority Lenders), such consent not to be unreasonably withheld.
14.3 Repair and classification.  Each Borrower shall keep its Ship in a good and safe condition and state of repair:
(a) consistent with first‑class ship ownership and management practice;
(b) so as to maintain such Ship with the highest classification available for vessels of the same age, type and specification as that Ship with Lloyd’s Register of Shipping (or such other first class classification society being a member of IACS and as may be approved by the Security Trustee), free of overdue recommendations and conditions affecting the Ship’s class; and
(c) so as to comply with all laws and regulations applicable to vessels registered at ports in the Approved Flag State or to vessels trading to any jurisdiction to which that Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code.
14.4 Modification.  The Borrowers shall not make any modification or repairs to, or replacement of, the Ships or equipment installed on her which would or might materially alter the structure, type or performance characteristics of the Ships or materially reduce her value.
14.5 Removal of parts.  A Borrower shall not remove any material part of its Ship, or any item of equipment installed on, such Ship unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Lenders and becomes on installation on that Ship the property of the relevant Borrower and subject to the security constituted by the relevant Mortgage Provided that a Borrower may install leased equipment owned by a third party if the equipment can be removed without any risk of damage to its Ship.
14.6 Surveys.  Each Borrower shall submit its Ship regularly to all periodical or other surveys which may be required for classification purposes, at the cost and expense of the Borrowers. The Agent shall have the right to request one or more technical survey reports of the Ships by surveyors appointed to by the Agent at the cost of the Borrowers, provided that the frequency of such reports shall be limited to one per year (unless an Event of Default shall have occurred and is continuing).
14.7 Inspection.  The Borrowers shall permit the Security Trustee (by surveyors or other persons appointed by it for that purpose) to board the Ship at all reasonable times, but without interference to the Ship’s trading and operations, to inspect her condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections.  Provided that the Ships are found to be in satisfactory condition, the cost of such inspections shall be borne by the Borrowers not more than once per year.
38
14.8 Prevention of and release from arrest.  Unless contested in good faith by appropriate proceedings, the Borrowers shall promptly discharge:
(a) all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ships, their Earnings or their Insurances; and
(b) all taxes, dues and other amounts charged in respect of the Ships, their Earnings or their Insurances;
and, forthwith upon receiving notice of the arrest of a Ship, or of her detention in exercise or purported exercise of any lien or claim, the Borrowers shall procure her prompt release by providing bail or otherwise as the circumstances may require.

14.9 Compliance with laws etc.  Each Borrower shall:
(a) comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws and all other laws or regulations relating to the Ship owned by it, its ownership, operation and management or to the business of that Borrower (including, without limitation, the obtaining of all relevant certificates of financial responsibility and any other matters required for entering United States territorial waters or calling at any United States Port);
(b) comply (and procure that each Security Party and each Affiliate of any of them shall comply) in all aspects with all Sanctions;
(c) not employ its Ship nor allow her employment in any manner contrary to any Sanctions;
(d) in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit its Ship to enter or trade to any zone which is declared a war zone by any government or by that Ship's war risks insurers unless the prior written consent of the Majority Lenders has been given and the Borrowers have (at their expense) effected any special, additional or modified insurance cover which the Majority Lenders may require.
14.10 Provision of information.  The Borrowers shall promptly provide the Security Trustee with any information which the Majority Lenders reasonably request regarding:
(a) the Ships, their employment, position and engagements;
(b) the Earnings and payments and amounts due to the master and crew of the Ships;
(c) any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Ships and any payments made in respect of the Ships;
(d) any towages and salvages;
39
(e) its compliance, the Approved Manager's compliance or the compliance of the Ships with the ISM Code and, upon the Security Trustee's request, provide copies of any current charter relating to the Ship and of any current charter guarantee, and copies of the ISM Code and ISPS Code documentation.
14.11 Notification of certain events.  The Borrower shall immediately notify the Security Trustee by letter of:
(a) any casualty which is or is likely to be or to become a Major Casualty;
(b) any occurrence as a result of which a Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(c) any requirement or recommendation made by any insurer or classification society (or any withdrawal of class) or by any competent authority which is not complied with in accordance with its terms;
(d) any arrest or detention of a Ship which is not lifted within forth eight (48) hours, any exercise or purported exercise of any lien on a Ship or her Earnings or any requisition of that Ship for hire;
(e) any intended dry docking of a Ship;
(f) any Environmental Claim made against the Borrowers or in connection with the Ships or any Environmental Incident;
(g) any claim for breach of the ISM Code or the ISPS Code being made against the Borrowers, the Approved Manager or otherwise in connection with the Ships; or
(h) any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
and the Borrowers shall keep the Security Trustee advised in writing on a regular basis and in such detail as the Security Trustee shall require of the Borrowers’, the Approved Manager’s or any other person's response to any of those events or matters.
 
14.12 Restrictions on chartering, appointment of managers, etc.  The Borrowers shall not without the prior written consent of the Agent (acting on the authority of the Majority Lenders):
(a) let a Ship on demise charter for any period;
(b) enter into any time or consecutive voyage charter in respect of a Ship for a term which exceeds, or which by virtue of any optional extensions may exceed, 12 months;
(c) enter into any charter in relation to a Ship under which more than 2 months' hire (or the equivalent) is payable in advance;
(d) charter a Ship otherwise than on bona fide arm's length terms  at the time when that Ship is fixed;
(e) appoint a commercial, technical or operational manager of a Ship (other than the Approved Manager) or agree to any material alteration to the terms of the Approved Manager's appointment (and in respect of which, the consent of the Agent shall not be unreasonably withheld);
40
(f) de‑activate or lay up a Ship;
(g) change the legal ownership of the shares in a Ship;
(h) put a Ship into the possession of any person for the purpose of work being done upon her in an amount exceeding or likely to exceed Three hundred thousand United States Dollars ($300,000) (or the equivalent in any other currency) unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or her Earnings for the cost of such work or otherwise; or
(i) change the classification society with which a Ship is classed (and in respect of which, the consent of the Agent and the authority of the Majority Lenders shall not be unreasonably withheld).
14.13 Notice of Mortgage.  The Borrowers shall keep each Mortgage registered against the relevant Ship as a valid first priority mortgage, carry on board that Ship a certified copy of the relevant Mortgage and place and maintain in a conspicuous place in the navigation room and the Master's cabin of such Ship a framed printed notice stating that such Ship is mortgaged by the relevant Borrower to the Lenders.
14.14 Sharing of Earnings.   The Borrowers shall not enter into any agreement or arrangement for the sharing of any Earnings other than a profit sharing agreed at arm’s length under a charter party provided that it is not a part of any pool arrangement, in which case the Agent’s prior written consent will be required (such consent not to be unreasonably withheld).
14.15 ISPS Code.  The Borrowers shall comply with the ISPS Code and in particular, without limitation, shall:
(a) procure that a Ship and the company responsible for such Ship’s compliance with the ISPS Code, comply with the ISPS Code; and
(b) maintain for each Ship an ISSC; and
(c) notify the Lender immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
14.16 Time charter assignment.  If a Borrower enters into any time charter or contract of affreightment in respect of its Ship which is of twelve (12) months or more in duration, or is capable of exceeding twelve (12) months in duration, that Borrower shall execute in favour of the Security Trustee an assignment and notice of assignment (and shall use its best endeavours to obtain an acknowledgement of the same from the relevant charterer or counterparty) of such time charter or contract of affreightment in such form and on such terms as the Agent may reasonably require, and shall deliver to the Agent such other documents equivalent to those referred to at paragraphs 3, 4 and 5 of Schedule 3 hereof as the Agent may require.
14.17 No freight derivatives. The Borrowers shall not enter into or agree to enter into (without the consent of the Majority Lenders) any freight derivatives or any other instruments which have the effect of hedging forward exposure to freight derivatives.
41
15 SECURITY COVER
15.1 Provision of additional security cover; prepayment of Loan.  The Borrowers undertake with each Creditor Party that if the Agent (acting on the instructions of the Majority Lenders) notifies the Borrowers that:

(a) the aggregate market values (determined as provided below) of the Ships; plus
(b) the net realisable value of any additional security previously provided under this Clause 15 (including the Cash Collateral Deposit but always excluding amounts standing to the credit of the Operating Account, the Retention Account), is
is during the Security Period below one hundred and thirty per cent (130%) of the outstanding amount of the Loan, the Borrowers will, within thirty (30) days after the date on which the Agent's notice is served, either:

(i) provide, or ensure that a third party provides, additional security which, in the opinion of the Majority Lenders, has a net realisable value at least equal to the shortfall and which consists of either (aa) cash pledged to the Security Trustee which when in the form of cash in Dollars, will be valued on a Dollar for Dollar basis or (bb) a Security Interest (including, but not limited to, a first priority mortgage or a second priority mortgage over another vessel), covering such asset or assets and documented in such terms as the Agent may, with authorisation from the Majority Lenders, approve or require; or
(ii) prepay in accordance with Clause 8 such part of the Loan as will eliminate the shortfall, to be applied against repayment instalments (including the balloon payment) on a pro rata basis.
15.2 Meaning of additional security.  In Clause 15.1 “security” means a Security Interest over an asset or assets (whether securing the Borrowers’ liabilities under the Finance Documents or a guarantee in respect of those liabilities), or a guarantee, letter of credit or other security in respect of the Borrowers’ liabilities under the Finance Documents, in each case in a form and substance acceptable to the Agent in its sole discretion.
15.3 Requirement for additional documents.  The Borrowers shall not be deemed to have complied with Clause 15.1(i) above until the Agent has received in connection with the additional security certified copies of documents of the kinds referred to in paragraphs 3, 4 and 5 of Schedule 3 and such legal opinions in terms acceptable to lawyers selected by the Agent in its sole discretion.
15.4 Valuation of Ship.  Subject to the following provisions of this Clause 15.4, the  Market Value of the Ships shall be determined:
(a) in Dollars, as at the date of (or no earlier than 30 days prior to) such valuation;
(b) by an independent shipbroker selected by or acceptable to the Agent and reporting to the Agent;
(c) with or without physical inspection of the Ships (as the Agent may require);
42
(d) on the basis of a sale for prompt delivery for cash on normal arm's length commercial form as between a willing seller and a willing buyer, free of any existing charter or other contract of employment.
15.5 Value of additional vessel security.  The net realisable value of any additional security which is provided under Clause 15.2 and which consists of a Security Interest over a vessel other than a Ship shall be that shown by way of a valuation complying with the requirements of Clause 15.4.
15.6 Valuations binding and conclusive.  Any valuation under Clause 15.1(i), 15.4 or 15.5 shall be binding and conclusive evidence of the Market Value of the Ships or of the other assets it refers to at the date of such valuation.
15.7 Provision of information.  The Borrowers shall promptly provide the Agent and any shipbroker or expert acting under Clause 15.4 or 15.5 with any information which the Agent or the shipbroker or expert may reasonable request for the purposes of the valuation; and, if the Borrowers fail to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which the shipbroker or the Majority Lenders (or the expert appointed by them) consider prudent.
15.8 Payment of valuation expenses. Without prejudice to the generality of the Borrowers’ obligations under Clauses 20.2, 20.3 and 21.3, the Borrowers shall, subject to the provisions of Clause 15.9, on demand, pay the Agent the amount of the fees and expenses of any shipbrokers or experts instructed by the Agent under this Clause and all legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause.
15.9 Frequency of valuations. The Agent shall be entitled to obtain written valuations of the Ships prior to the drawdown of the Loan and any time during the Security Period, provided that after drawdown of the Loan the costs and expenses of such shall only be borne by the Borrowers once per year (unless an Event of Default has occurred and is continuing or a mandatory prepayment event under Clause 8.8 has occurred, in which case the Agent shall be entitled to obtain a valuation at any time, at the cost and expense of the Borrowers).
16 PAYMENTS AND CALCULATIONS
16.1 Currency and method of payments.  All payments to be made by the Lenders or by the Borrowers under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable to it:
(i) by not later than 11.00 a.m. (New York City time) on the due date;
(ii) in same day Dollar funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement);
(iii) if in Dollars, to the account of the Agent with such corresponding bank in New York as the Agent may from time to time notify to the Borrowers and the other Creditor Parties; and
(iv) in the case of an amount payable to the Security Trustee, to such account as it may from time to time notify to the Borrowers and the other Creditor Parties.
43
16.2 Payment on non-Business Day.  If any payment by the Borrowers under a Finance Document would otherwise fall due on a day which is not a Business Day:
(a) the due date shall be extended to the next succeeding Business Day; or
(b) if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day,
and interest shall be payable during any extension under paragraph (a) at the rate payable on the original due date.
16.3 Basis for calculation of periodic payments. All interest and commitment fee and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
16.4 Distribution of payments to Creditor Parties. Subject to Clauses 16.5, 16.6 and 16.7:
(a) any amount received by the Agent under a Finance Document for distribution or remittance to a Lender, or the Security Trustee shall be made available by the Agent to that Lender, or, as the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the Lender or the Security Trustee may have notified to the Agent not less than 5 Business Days previously; and
(b) amounts to be applied in satisfying amounts of a particular category which are due to the Lenders generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it.
16.5 Permitted deductions by Agent. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which the Agent is then entitled under any Finance Document to require that Lender to pay on demand.
16.6 Agent only obliged to pay when monies received. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to the Borrowers or any Lender any sum which the Agent is expecting to receive for remittance or distribution to the Borrowers or that Lender until the Agent has satisfied itself that it has received that sum.
16.7 Refund to Agent of monies not received. If and to the extent that the Agent makes available a sum to the Borrowers or a Lender, without first having received that sum, the Borrowers or (as the case may be) the Lender concerned shall, on demand:
(a) refund the sum in full to the Agent; and
(b) pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.
44
16.8 Agent may assume receipt. Clause 16.7 shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it made available.
16.9 Creditor Party accounts. Each Creditor Party shall maintain accounts showing the amounts owing to it by the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.
16.10 Agent's memorandum account. The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender from the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.
16.11 Accounts prima facie evidence. If any accounts maintained under Clauses 16.9 and 16.10 show an amount to be owing by the Borrowers or a Security Party to a Creditor Party, those accounts shall, absent manifest error, be prima facie evidence that that amount is owing to that Creditor Party.
17 APPLICATION OF RECEIPTS
17.1 Normal order of application.  Except as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:‑
(a) FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents in the following order and proportions:
(i) first, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents other than those amounts referred to at (ii) and (iii) below (including, but without limitation, all amounts payable by the Borrowers under Clauses 20, 21 and 22 of this Agreement or by the Borrowers or any Security Party under any corresponding or similar provision in any other Finance Document);
(ii) secondly, in or towards satisfaction pro rata of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents but shall have failed to pay or deliver to the Creditor Parties at the time of application or distribution under this Clause 17); and
(iii) thirdly, in or towards satisfaction pro rata of the Loan;
(b) SECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document but which the Agent, by notice to the Borrowers, the Security Parties and the other Creditor Parties, states in its reasonable opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 17.1(a); and
(c) THIRDLY: any surplus shall be paid to the Borrowers or to any other person appearing to be entitled to it.
45
17.2 Variation of order of application.  The Agent may, following the occurrence of an Event of Default or a Potential Event of Default which is continuing, with the authorisation of the Majority Lenders by notice to the Borrowers, the Security Parties and the other Creditor Parties provide for a different manner of application from that set out in Clause 17.1 either as regards a specified sum or sums or as regards sums in a specified category or categories.
17.3 Appropriation rights overriden. This Clause 17 and any notice which the Agent gives under Clause 17.2 shall override any right of appropriation possessed, and any appropriation made, by the Borrowers or any Security Party.
18 APPLICATION OF EARNINGS
18.1 Payment and application of Earnings.  The Borrowers undertake with the Lenders to ensure that, throughout the Security Period (and subject only to the provisions of an Assignment for a Ship), all the Earnings of a Ship are paid to the relevant Operating Account and shall be applied as follows:
(a) first, towards payment of all sums other than principal and interest due to the Lenders under this Agreement and the other Finance Documents;
(b) secondly, towards payment of the next instalment of principal and the next payment of interest due to the Lenders in accordance with the provisions of Clause 18.2; and
(c) thirdly, any surplus shall (subject always to the other provisions of this Clause 18 and provided no Event of Default is continuing) be available to the Borrowers, and
it is expressly agreed that so long as no Event of Default shall have occurred and is continuing, the Borrowers shall be entitled to withdraw from the Operating Account(s) any amount, provided however that if in the opinion of the Agent or the Security Trustee (as the case may be) there will be insufficient sums standing to the credit of the Operating Account(s) to meet payments under (a) and (b) above, the Agent or the Security Trustee (as the case may be) shall be entitled to refuse any withdrawal from the Operating Account(s).

18.2 Monthly retentions.  The Borrowers undertake with the Lender to ensure that, in each calendar month of the Security Period commencing one month after the Drawdown Date, on such dates as the Lenders may from time totime specify, there is transferred to the Retention Account out of the aggregate Earnings received in the Operating Account(s) during the preceding calendar month:
(a) one‑third of the amount of the repayment instalment falling due under Clause 8 on the next Repayment Date; and
(b) the relevant fraction of the aggregate amount of interest on the Loan which is payable on the next due date for payment of interest under this Agreement.
The “relevant fraction” is a fraction of which the numerator is 1 and the denominator the number of months comprised in the then current Interest Period (or, if the period is shorter, the number of months from the later of the commencement of the current Interest Period or the last due date for payment of interest to the next due date for payment of interest under this Agreement).
46
18.3 Shortfall in Earnings.  If the aggregate Earnings received in the Operating Account are insufficient in any month for the required amount to be transferred to the Retention Account under Clause 18.2, the Borrowers shall make up the amount of the insufficiency on demand from the Lenders; but, without thereby prejudicing the Lenders’ right to make such demand at any time, the Lenders may permit the Borrowers to make up all or part of the insufficiency by increasing the amount of any transfer under Clause 18.2 from the Earnings received in the next or subsequent months.
18.4 Application of retentions.  Until an Event of Default occurs, the Lenders shall on each Repayment Date and on each due date for the payment of interest under this Agreement apply in accordance with the payment details set out in Clause 16.1 so much of the balance on the Retention Account as equals:
(a) the repayment instalment due on that Repayment Date; or
(b) the amount of interest payable on that interest payment date;
in discharge of the Borrowers’ liability for that repayment instalment or that interest.
18.5 Interest accrued on Retention Account.  Any credit balance on the Retention Account shall bear interest at the rate from time to time offered by the Lenders to its customers for Dollar deposits of similar amounts and for periods similar to those for which such balance appears to the Lenders likely to remain on the Retention Account. Interest accruing under this Clause shall be credited to the Operating Account.
18.6 Location of accounts.  The Borrowers shall promptly:
(a) comply with any requirement of the Agent as to the location or re‑location of the Operating Account(s) and the Retention Account (or either of them);
(b) execute any documents which the Lenders specify to create or maintain in favour of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Operating Account and the Retention Account.
18.7 Debits for expenses etc.  The Lenders shall be entitled (but not obliged) from time to time to debit the Operating Account with prior notice in order to discharge any amount due and payable to it under Clause 20 or 21 or payment of which they have become entitled to demand under Clause 20 or 21.
18.8
 Borrowers’ obligations unaffected.  The provisions of this Clause 18 do not affect:
(a) the liability of the Borrowers to make payments of principal and interest on the due dates; or
(b) any other liability or obligation of the Borrowers or any Security Party under any Finance Document.
19 EVENTS OF DEFAULT
19.1 Events of Default.  An Event of Default occurs if:
47
(a) the Borrowers or any Security Party fail to pay when due or (if payable on demand) three (3) days following the date on which the written demand is served any sum payable under a Finance Document or under any document relating to a Finance Document, unless such failure to pay is caused by an administrative or technical error or any disruption event in the payment/communication system which is beyond the control of the Borrowers, in which case the Borrowers shall rectify such error within three (3) Business Days; or
(b) any breach occurs of Clauses 9.2, 11.2, 11.11, 11.17, 12.2, 12.3, 13 or 15.1 and in case any such breach (other than those referred to in Clauses 9.2. 13 and 15.1 hereinabove to which other grace periods are applicable, as therein provided) is in the opinion of the Security Trustee, capable of remedy, if it will continue un-remedied for seven (7) Business Days after its occurrence; or
(c) any breach by the Borrowers or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraph (a) or (b)) which, in the opinion of the Majority Lenders, is capable of remedy, and such default continues unremedied ten (10) days after written notice from the Agent requesting action to remedy the same; or
(d) (subject to any applicable grace period specified in the Finance Document) any breach by the Borrowers or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a), (b) or (c)); or
(e) any representation, warranty or statement made by, or by an officer of, the Borrowers or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or misleading in a material way when it is made; or
(f) any of the following occurs in relation to any Financial Indebtedness of the Borrowers:
(i) any Financial Indebtedness of the Borrowers is not paid when due or, if  payable on demand, three (3) days following the date on which the written demand is served; or
(ii) any Financial Indebtedness of the Borrowers becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; or
(iii) a lease, hire purchase agreement or charter creating any Financial Indebtedness of the Borrowers is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or
(iv) any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of the Borrowers ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or
(v) any Security Interest securing any Financial Indebtedness of the Borrowers becomes enforceable; or
48
(g) any of the following occurs in relation to the Borrowers:
(i) the Borrowers become, in the opinion of the Majority Lenders, unable to pay their debts as they fall due; or
(ii) any assets of the Borrowers are subject to any form of execution, attachment, arrest, sequestration or distress in respect of a sum of, or sums aggregating, $300,000 or more or the equivalent in another currency unless such execution, attachment, arrest, sequestration or distress is being contested in good faith and on substantial grounds and is discussed or withdrawn within thirty (30) days of the occurrence thereof; or
(iii) any administrative or other receiver is appointed over any asset of the Borrowers; or
(iv) the Borrowers make any formal declaration of bankruptcy or any formal statement to the effect that they are insolvent or likely to become insolvent, or a winding up or administration order is made in relation to the Borrowers, or the members or directors of the Borrowers pass a resolution to the effect that it should be wound up, placed in administration; or
(v) a petition is presented in any Pertinent Jurisdiction for the winding up or administration, or the appointment of a provisional liquidator, of the Borrowers unless the petition is being contested in good faith and on substantial grounds and is dismissed or withdrawn within 30 days of the presentation of the petition; or
(vi) the Borrowers petition a court, or present any proposal for, any form of judicial or non‑judicial suspension or deferral of payments, reorganisation of their debt (or certain of their debt) or arrangement with all or a substantial proportion (by number or value) of their creditors or of any class of them or any such suspension or deferral of payments, reorganisation or arrangement is effected by court order, contract or otherwise; or
(vii) any meeting of the members or directors of the Borrowers is summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iii), (iv), (v) or (vi) above; or
(viii) in a Pertinent Jurisdiction other than England, any event occurs or any procedure is commenced which, in the reasonable opinion of the Majority Lenders, is similar to any of the foregoing; or
(h) the Borrowers cease or suspend carrying on its business or a part of their business which, in the opinion of the Majority Lenders, is material in the context of this Agreement; or
(i) it becomes unlawful in any Pertinent Jurisdiction or impossible:
(i) for the Borrowers or any Security Party to discharge any liability under a Finance Document or to comply with any other obligation which the Majority Lenders consider material under a Finance Document; or
(ii) for the Agent, the Security Trustee, the Account Bank or the Lenders to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or
49
(j) any consent necessary to enable the Borrowers to own, operate or charter the Ships or to enable the Borrowers or any Security Party to comply with any provision which the Majority Lenders (acting reasonably) consider material of a Finance Document is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or
(k) it appears to the Majority Lenders that, without their prior consent, a change has occurred after the date of this Agreement in the beneficial ownership of the shares in the Borrowers as declared to the Bank prior to the execution of this Agreement. For the avoidance of doubt the Bank consents and agrees to any changes relating to the Guarantor’s trading shares in the normal course of business and confirm that such changes do not violate the terms of this Agreement; or
(l) any provision which the Majority Lenders (acting reasonably) consider material of a Finance Document proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another third party claim or interest; or
(m) the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
(n) If any debt of any Security Party (which in the case of the Guarantor exceeds an aggregate amount of $750,000) is not paid when due or any debt of any Security Party (which in the case of the Guarantor exceeds an aggregate amount of $750,000) becomes due and payable prior to the date when it would otherwise have become due (unless as a result of the exercise by the relevant Security Party of a voluntary right of prepayment), or any creditor of any Security Party becomes entitled to declare its claim (which in the case of the Guarantor exceeds an aggregate amount of $750,000) due and payable, or any facility or commitment available to any Security Party is withdrawn, suspended or cancelled by reason of any default (however described) of such Security Party and such debt is not discharged within seven (7) Business Days; or
(o) any other event occurs or any other circumstances arise or develop including, without limitation:
(i) a Material Adverse Effect; or
(ii) any accident or other event involving the Ship,
in the light of which the Majority Lenders (acting reasonably) consider that there is a significant risk that the Borrowers are, or will later become, unable to discharge their liabilities under the Finance Documents as they fall due.

19.2 Actions following an Event of Default.  On, or at any time after, the occurrence of an Event of Default which is continuing:
(a) the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
(i) serve on the Borrowers a notice stating that the Commitments and all other obligations of each Lender to the Borrowers under this Agreement are terminated; and/or
50
(ii) serve on the Borrowers a notice stating that the Loan, all accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
(iii) take any other action which, as a result of the Event of Default or any notice served under paragraph (i) or (ii) above, the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
(b) the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the Majority Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph (a) (i) or (ii) above, the Security Trustee, the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law.
19.3 Termination of Commitments.  On the service of a notice under paragraph (a)(i) of Clause 19.2, the Commitments and all other obligations of each Lender to the Borrowers under this Agreement shall terminate.
19.4 Acceleration of Loan.  On the service of a notice under paragraph (a)(ii) of Clause 19.2, the Loan, all accrued interest and all other amounts accrued or owing from the Borrowers or any Security Party under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.
19.5 Multiple notices; action without notice.  The Agent may serve notices under paragraphs (a) (i) and (ii) of Clause 19.2 simultaneously or on different dates and it and/or the Security Trustee may take any action referred to in that Clause if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
19.6 Notification of Creditor Parties and Security Parties.  The Agent shall send to each Lender, the Security Trustee, the Account Bank and each Security Party a copy or the text of any notice which the Agent serves on the Borrowers under Clause 19.2; but the notice shall become effective when it is served on the Borrowers, and no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide the Borrowers or any Security Party with any form of claim or defence.
19.7 Creditor Parties’ rights unimpaired.  Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in particular, this Clause is without prejudice to Clause 3.1 and Clause 3.2.
19.8 Exclusion of Creditor Party Liability.  No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to a Borrowers or a Security Party:
(a) for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
51
(b) as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset;
except that this does not exempt a Creditor Party or a receiver or manager from liability for losses shown to have been caused by the gross negligence or the wilful misconduct of such Creditor Party's own officers and employees or (as the case may be) such receiver's or manager's own partners or employees.

19.9 Interpretation.  In Clause 19.1(f) references to an event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement or a termination event in a finance lease; and in Clause 19.1(g) “petition” includes an application.
19.10 Relevant Persons.  In this Clause 19, a “Relevant Person” means the Borrowers, the Approved Manager, and any other Security Party.
20 FEES AND EXPENSES
20.1 Fees.  The Borrowers shall pay to the Agent a non-refundable front end flat fee of 1.5% of the amount of the Loan for the account of the Arranger, on the Drawdown Date.
20.2 Costs of negotiation, preparation etc.  The Borrowers shall pay to the Agent on its demand the amount of all expenses (including, but not limited to, all legal expenses and VAT, if applicable) incurred by the Agent or the Security Trustee in connection with the negotiation, preparation, execution or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document or a related document, other than any syndication costs/expenses.
20.3 Costs of variations, amendments, enforcement etc.  The Borrowers shall pay to the Agent, on the Agent's demand, the amount of all expenses incurred by a Lender in connection with:
(a) any amendment or supplement to a Finance Document;
(b) any consent or waiver by the Lenders, the Majority Lenders or the Creditor Party concerned under or in connection with a Finance Document;
(c) the valuation of any security provided or offered under Clause 15 or any other matter relating to such security;
(d) any step taken by the Agent or the Security Trustee concerned with a view to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose.
20.4 Documentary taxes. The Borrowers shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent's demand, fully indemnify each Creditor Party against any liabilities and expenses resulting from any failure or delay by the Borrowers to pay such a tax.
20.5 Certification of amounts.  A notice which is signed by two officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 20 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall, save for manifest error, be prima facie evidence that the amount, or aggregate amount, is due.
52
21 INDEMNITIES
21.1 Indemnities regarding borrowing and repayment of Loan.  The Borrower shall fully indemnify the Agent and each Lender on the Agent's written demand and the Security Trustee on its demand in respect of all expenses, liabilities and losses which are incurred by that Creditor Party, or which that Creditor Party reasonably and with due diligence estimates that it will incur, as a result of or in connection with:
(a) the Loan not being borrowed on the date specified in the Drawdown Notice for any reason other than a default by the Lender claiming the indemnity;
(b) the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period;
(c) any failure (for whatever reason) by the Borrowers to make payment of any amount due under a Finance Document on the due date or, if  payable on demand, three (3) days following the date on which the written demand is served (after giving credit for any default interest paid by the Borrowers on the amount concerned under Clause 7);
(d) the occurrence and/or continuance of an Event of Default or a Potential Event of Default (including, but not limited to, a breach of Clauses 11.17 or 11.18) and/or the acceleration of repayment of the Loan under Clause 19;
and in respect of any tax (other than tax on its overall net income or which relates to a FACTA Deduction) for which a Creditor Party is liable in connection with any amount paid or payable to that Creditor Party (whether for its own account or otherwise) under any Finance Document.

21.2 Breakage costs.  Without limiting its generality, Clause 21.1 covers any liability, expense or loss, incurred by a Lender:
(a) in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue amount); and
(b) in terminating, or reversing or otherwise in connection with, any open position arising under this Agreement.
21.3 Miscellaneous indemnities.  The Borrowers shall fully indemnify the Agent and the Security Trustee severally on their respective demands in respect of all claims, demands, proceedings, liabilities, taxes, losses and expenses of every kind (“liability items”) which may be made or brought against, or incurred by, the Agent or the Security Trustee, in any country, in relation to:
(a) any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document;
(b) any other event, matter or question which occurs or arises at any time during the Security Period and which has any connection with, or any bearing on, any Finance Document, any payment or other transaction relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created (or intended to be created) by a Finance Document;
53
other than liability items which are shown to have been caused by the gross negligence or the wilful misconduct of the Agent's or (as the case may be) the Security Trustee's own officers or employees.

Without prejudice to its generality, this Clause 21.3 covers any claims, expenses, liabilities and losses which arise, or are asserted, under or in connection with any law relating to safety at sea, the ISM Code, the ISPS Code or any Environmental Law.

21.4 Extension of indemnities; environmental indemnity.  Without prejudice to its generality, Clause 21.3 covers:
(a) any matter which would be covered by Clause 21.3 if any of the references in that Clause to a Lender were a reference to the Agent or (as the case may be) to the Security Trustee; and
(b) any liability items which arise, or are asserted, under or in connection with any law relating to safety at sea, pollution or the protection of the environment if such liability items would not have arise or asserted against the Lender or Agent or the Security Trustee (as the case may be) if any of them had not entered into any of the Finance Documents and/or exercised any of its rights, powers and discretions thereby conferred and/or performed any of its obligations thereunder and/or been involved in any of the transactions contemplated by the Finance.
21.5 Currency indemnity.  If any sum due from the Borrowers or any Security Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document has to be converted from the currency in which the Finance Document provided for the sum to be paid (the “Contractual Currency”) into another currency (the “Payment Currency”) for the purpose of:
(a) making or lodging any claim or proof against the Borrowers or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or
(b) obtaining an order or judgment from any court or other tribunal; or
(c) enforcing any such order or judgment;
the Borrowers shall indemnify the Creditor Party concerned against any loss arising when the amount of the payment actually received by that Creditor Party is converted at the available rate of exchange into the Contractual Currency.
 
In this Clause 21.5, the “available rate of exchange” means the rate at which the Creditor Party concerned is able at the opening of business (London time) on the Business Day after it receives the sum concerned to purchase the Contractual Currency with the Payment Currency.

This Clause 21.5 creates a separate liability of the Borrowers which is distinct from its other liabilities under the Finance Documents and which shall not be merged in any judgment or order relating to those other liabilities.

21.6 Certification of amounts.  A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 21 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall, save for manifest error, be prima facie evidence that the amount, or aggregate amount, is due.
54

 
21.7 Sums deemed due to a Lender.  For the purposes of this Clause 21, a sum payable by the Borrowers to the Agent or the Security Trustee for distribution to a Lender shall be treated as a sum due to that Lender.
21.8 Mandatory Costs.  The Borrowers shall, on demand by the Agent, pay to the Agent for the account of the relevant Lender, such amount which any Lender certifies in a notice to the Agent to be its good faith determination of the amount necessary to compensate it for complying with:
(a) in the case of a Lender lending from a lending office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank or any other authority or agency which replaces all or any of its functions) in respect of loans made from that lending office; and
(b) in the case of any Lender lending from a lending office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental authority or agency which replaces all or any of their functions), which, in each case, is referable to that Lender's participation in the Loan.
22 NO SET-OFF OR TAX DEDUCTION
22.1 No deductions.  All amounts due from the Borrowers under a Finance Document shall be paid:
(a) without any form of set‑off, cross-claim or condition; and
(b) free and clear of any tax deduction except a tax deduction which the Borrowers are required by law to make.
22.2 Grossing-up for taxes.  If the Borrowers are required by law to make a tax deduction from any payment:
(a) the Borrowers shall notify the Agent as soon as it becomes aware of the requirement;
(b) the Borrowers shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises;
(c) the amount due in respect of the payment shall be increased by the amount necessary to ensure that each Creditor Party receives and retains (free from any liability relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which it would otherwise have received.
22.3 Evidence of payment of taxes.  Within 1 month after making any tax deduction, the Borrowers shall deliver to the Agent documentary evidence satisfactory to the Agent that the tax had been paid to the appropriate taxation authority.
55
22.4 Exclusion of tax on overall net income.  In this Clause 22 “tax deduction” means any deduction or withholding for or on account of any present or future tax except tax on a Creditor Party's overall net income.
22.5 FATCA Information.
(a) Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:
(i) confirm to that other Party whether it is a FATCA Exempt Party or is not a FATCA Exempt Party; and
(ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable "passthru payment percentage" or other information required under the US Treasury regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA.
(b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
(c) Paragraph (a) above shall not oblige any Creditor Party to do anything which would or might in its reasonable opinion constitute a breach of any law or regulation, any policy of that party, any fiduciary duty or any duty of confidentiality, or to disclose any confidential information (including, without limitation, its tax returns and calculations); provided, however, that information required (or equivalent to the information so required) by United States Internal Revenue Service Forms W-8 or W-9 (or any successor forms) shall not be treated as confidential information of such party for purposes of this paragraph (c).
(d) If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:
(i) if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and
(ii) if that Party failed to confirm its applicable "passthru payment percentage" then such Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable "passthru payment percentage" is 100%,
until (in each case) such time as the Party in question provides the requested confirmation, forms, documentation or other information.
22.6 FATCA Withholding.
(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
56
(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Borrowers, the Agent and the other Creditor Parties.
23 ILLEGALITY, ETC
23.1 Illegality.  This Clause 23 applies if a Lender (the “Notifying Lender”) notifies the Agent that it has become, or will with effect from a specified date, become:
(a) unlawful or prohibited (including, without limitation, due to a breach of Clauses 11.17 or 11.18) as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or
(b) contrary to, or inconsistent with, any regulation,
for the Notifying Lender to maintain or give effect to any of its obligations under this Agreement in the manner contemplated by this Agreement.

23.2 Notification of illegality.  The Agent shall promptly notify the Borrowers, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 23.1 which the Agent receives from the Notifying Lender.
23.3 Prepayment; termination of Commitment.  On the Agent notifying the Borrowers under Clause 23.2, the Notifying Lender's Commitment shall terminate; and thereupon or, if later, on the date specified in the Notifying Lender's notice under Clause 23.1 as the date on which the notified event would become effective the Borrowers shall prepay the Notifying Lender's Contribution in accordance with Clause 8.
23.4 Mitigation.  If circumstances arise which would result in a notification under Clause 23.1 then, without in any way limiting the rights of the Notifying Lender under Clause 23.3, the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might:
(a) have an adverse effect on its business, operations or financial condition; or
(b) involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or
(c) involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
24 INCREASED COSTS
24.1 Increased costs.  This Clause 24 applies if a Lender (the “Notifying Lender”) notifies the Agent that the Notifying Lender considers that as a result of:
(a) the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on the Lender's overall net income); or
57
(b) the effect of complying with any regulation (including any regulation which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement (including, but not limited to, Basel III, CRR and CRD IV costs),
is that the Notifying Lender (or a parent company of it) has incurred or will incur an “increased cost”, that is to say,:

(i) an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or a Transfer Certificate, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums; or
(ii) a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital;
(iii) an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender's Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or
(iv) a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender under this Agreement;
but not an item attributable to a change in the rate of tax on the overall net income of the Notifying Lender (or a parent company of it) or an item covered by the indemnity for tax in Clause 21.1 or by Clause 22 or which is attributable to a FATCA Deduction.

For the purposes of this Clause 24.1 the Notifying Lender may in good faith allocate or spread costs and/or losses among its assets and liabilities (or any class thereof) on such basis as it considers appropriate.

24.2 Notification to Borrowers of claim for increased costs.  The Agent shall promptly notify the Borrowers and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 24.1.
24.3 Payment of increased costs.  The Borrowers shall pay to the Agent, on the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrowers that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
24.4 Notice of prepayment.  If the Borrowers are not willing to continue to compensate the Notifying Lender for the increased cost under Clause 24.3, the Borrowers may give the Agent not less than 14 days' notice of its intention to prepay the Notifying Lender's Contribution at the end of an Interest Period.
58
24.5 Prepayment; termination of Commitment.  A notice under Clause 24.4 shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrowers’ notice of intended prepayment; and:
(a) on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and
(b) on the date specified in its notice of intended prepayment, the Borrowers shall prepay (without premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin.
24.6 Application of prepayment.  Clause 8 shall apply in relation to the prepayment.
25 SET‑OFF
25.1 Application of credit balances.  Each Creditor Party may without prior notice at any time after the occurrence of an Event of Default which is continuing:
(a) apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of the Borrowers at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from the Borrowers to that Creditor Party under any of the Finance Documents; and
(b) for that purpose:
(i) break, or alter the maturity of, all or any part of a deposit of the Borrowers;
(ii) convert or translate all or any part of a deposit or other credit balance into Dollars;
(iii) enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate.
25.2 Existing rights unaffected.  No Creditor Party shall be obliged to exercise any of its rights under Clause 25.1; and those rights shall be without prejudice and in addition to any right of set‑off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document).
25.3 Sums deemed due to a Lender.  For the purposes of this Clause 25, a sum payable by the Borrowers to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender.
25.4 No Security Interest.  This Clause 25 gives the Lenders a contractual right of set off only, and does not create any equitable charge or other Security Interest over any credit balance of the Borrowers.
25.5 No Borrowers set off.  The Borrowers shall not have a right of set off in relation to sums that may be due from any Creditor Party under this Agreement or any of the other Finance Documents.
59
26 TRANSFERS AND CHANGES IN LENDING OFFICES
26.1 Transfer by the Borrowers.  The Borrowers may not:
(a) without the prior written consent of the Agent (given on the instructions of all of the Lenders), transfer any of its rights or obligations under any Finance Document;
(b) without the prior written consent of the Agent (given on the instructions of all the Lenders), enter into any merger, de-merger or other reorganisation, or carry out any other act, as a result of which any of its rights or liabilities would vest in, or pass to, another person.
26.2 Transfer by a Lender.  Subject to Clause 26.4, a Lender (the “Transferor Lender”) may, at its sole discretion, without the consent of and/or the prior consultation with the Borrowers (but with notice to the Borrower) and/or any Security Party, at any time assign or transfer:
(a) its rights in respect of all or part of its Contribution; or
(b) its obligations in respect of all or part of its Commitment; or
(c) a combination of (a) and (b);
to be (in the case of its rights) assigned or transferred to, or (in the case of its obligations) assumed by, another bank or financial institution, or by a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (a “Transferee Lender”) by delivering to the Agent a completed certificate in the form set out in Schedule 4 with any modifications approved or required by the Agent (a “Transfer Certificate”) executed by the Transferor Lender and the Transferee Lender.

However any rights and obligations of the Transferor Lender in its capacity as Agent or Security Trustee shall be dealt with separately in accordance with the Agency and Trust Deed.

26.3 Transfer Certificate, delivery and notification.  As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):
(a) sign the Transfer Certificate on behalf of itself, the Borrowers, the Security Parties, the Security Trustee, the Arranger, the Account Bank and each of the Lenders;
(b) on behalf of the Transferee Lender, send to the Borrowers and each Security Party letters or faxes notifying them of the Transfer Certificate and attaching a copy of it;
(c) send to the Transferee Lender copies of the letters or faxes sent under paragraph (b) above.
26.4 Effective Date of Transfer Certificate.  A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date Provided that it is signed by the Agent under Clause 26.3 on or before that date.
60
26.5 No transfer without Transfer Certificate.  No assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrowers, any Security Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
26.6 Lender re-organisation; waiver of Transfer Certificate.  However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the “successor”), the Agent may, if it sees fit, by notice to the successor and the Borrowers and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender.  In addition, where security rights (such as pledge and mortgage rights) created in the interest of the Lender concerned were transferred to the successor as a result of such a merger, de-merger or other reorganisation, then such rights will serve as if they were created in the interest of the successor.
26.7 Effect of Transfer Certificate.  A Transfer Certificate takes effect in accordance with English law as follows:
(a) to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which the Borrowers or any Security Party had against the Transferor Lender;
(b) the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
(c) the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;
(d) the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable to the Lenders generally, including those about pro‑rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
(e) any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor's title and any rights or equities of the Borrowers or any Security Party against the Transferor Lender had not existed;
(f) the Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.7 and Clause 20, and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and
61
(g) in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount.
The rights and equities of the Borrowers or any Security Party referred to above include, but are not limited to, any right of set off and any other kind of cross‑claim.

26.8 Maintenance of register of Lenders.  During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause 26.4) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee and the Borrowers during normal banking hours, subject to receiving at least 3 Business Days prior notice.
26.9 Reliance on register of Lenders.  The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents.
26.10 Authorisation of Agent to sign Transfer Certificates.  The Borrowers, the Arranger, the Account Bank, the Security Trustee, each Lender irrevocably authorise the Agent to sign Transfer Certificates on its behalf.
26.11 Registration fee.  In respect of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $2,500 from the Transferor Lender or (at the Agent's option) the Transferee Lender. Such fees will not burden any of the Security Parties under any circumstances.
26.12 Sub-participation; subrogation assignment.  A Lender may sub‑participate all or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice to, the Borrowers, any Security Party, the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them.
26.13
Disclosure of information.  A Lender may disclose to a potential Transferee Lender or sub‑participant any information which the Lender has received in relation to the Borrowers, any Security Party or their affairs under or in connection with any Finance Document.
 
26.14 Change of lending office.  A Lender may change its lending office without consultation with the Borrowers by giving notice to the Agent and the change shall become effective on the later of:
(a) the date on which the Agent receives the notice; and
(b) the date, if any, specified in the notice as the date on which the change will come into effect.
62
26.15 Notification.  On receiving such a notice, the Agent shall notify the Borrowers and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.
26.16 Consent to disclosure.  The Borrowers authorise any of the Lenders to disclose all information related or connected to:
(a) the Ships or any other vessel owned or operated by a Security Party;
(b) the negotiation, drafting and content of this Agreement and the Finance Documents;
(c) the Loan; or
(d) any Security Party,
to any service provider (included but not limited to professional advisers, auditors, lawyers, accountants, surveyors, valuers, insurers, insurance advisers and brokers) which any of the Lenders may in its discretion deem necessary or desirable in connection with this Agreement or any other Finance Documents and/or the protection or enforcement of its rights thereunder.
27 VARIATIONS AND WAIVERS
27.1 Variations, waivers etc. by Majority Lenders.  Subject to Clause 27.2, a document shall be effective to vary, waive, suspend or limit any provision of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document is signed, or specifically agreed to by fax, by the Borrowers, by the Agent on behalf of the Majority Lenders, by the Agent and the Security Trustee in their own rights, and, if the document relates to a Finance Document to which a Security Party is party, by that Security Party.
27.2 Variations, waivers etc. requiring agreement of all Lenders.  However, as regards the following, Clause 27.1 applies as if the words “by the Agent on behalf of the Majority Lenders” were replaced by the words “by or on behalf of every Lender”:
(a) a change in the Margin or in the definition of LIBOR;
(b) a change to the date for, the amount of, any payment of principal, interest, fees, or other sums payable under this Agreement;
(c) a change to any Lender's Commitment;
(d) an extension of the Availability Period;
(e) a change to the definition of “Majority Lenders” or “Finance Documents”;
(f) a change to the preamble or to Clause 2, 3, 4, 5.1, 11.17, 11.18, 17, 19 or 30;
(g) a change to this Clause 27;
63
(h) any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document; and
(i) any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender's consent is required.
27.3 Exclusion of other or implied variations.  Except for a document which satisfies the requirements of Clauses 27.1 and 27.2, no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:
(a) a provision of this Agreement or another Finance Document; or
(b) an Event of Default; or
(c) a breach by the Borrowers or a Security Party of an obligation under a Finance Document or the general law; or
(d) any right or remedy conferred by any Finance Document or by the general law,
and there shall not be implied into any Finance Document any term or condition requiring any such provision to be enforced, or such right or remedy to be exercised, within a certain or reasonable time.

27.4 Notification of Variation or Waiver.  No variation or waiver may be made before the date falling ten (10) Business Days after the terms of that variation or waiver have been notified by the Agent to the Lenders, unless each Lender is a FATCA Protected Lender. The Agent shall notify the Lenders reasonably promptly of any variations or waivers proposed by the Borrowers.
27.5 Variation or Waiver: FATCA.
(a) Notwithstanding the foregoing, if the Agent or a Lender reasonably believes that an amendment or waiver may constitute a “material modification” for the purposes of FATCA that may result (directly or indirectly) in a Party being required to make a FATCA Deduction and the Agent or that Lender (as the case may be) notifies the Borrowers and the Agent accordingly, that amendment or waiver may, subject to paragraph (b) below, not be effected without the consent of the Agent or that Lender (as the case may be).
(b) The consent of a Lender shall not be required pursuant to paragraph (a) above if that Lender is a FATCA Protected Lender.
28 NOTICES
28.1 General.  Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter or fax; and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.
64
28.2 Addresses for communications.  A notice shall be sent:
(a)             to the Borrowers:                                                                      
c/o Eurobulk Ltd.
4, Messogiou & Evropis Xxxxxx
000 00, Xxxxxxxx
Xxxxxx
Xxxxxx

Fax No: x00 0000 000000
Attn:  Xxxxxx Xxxxxxx/Xxxxxx Xxxxxxx

(b)             to a Lender:                                                                       At the address below its name in Schedule 1 or (as the case may require) in the relevant Transfer Certificate;
 

(c)            
to the Arranger, Account Bank and
Security Trustee:
EUROBANK ERGASIAS S.A.
00, Xxxx Xxxxxxx Xxxxxx
000 00 Xxxxxxx
Xxxxxx

Fax No: x00 000  0000000;
 
(d)             to the Agent:                                                                                    
EUROBANK ERGASIAS S.A.
00, Xxxx Xxxxxxx Xxxxxx
000 00 Xxxxxxx
Xxxxxx

Fax: x00 000 0000000
Attn:  Mrs S. Ydreou
 
or to such other address as the relevant party may notify the Agent or, if the relevant party is the Agent or the Security Trustee, the Borrowers, the Lenders, the Arranger, the Account Bank and the Security Parties.

28.3 Effective date of notices.  Subject to Clauses 28.4 and 28.5:
(a) a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered;
(b) a notice which is sent by fax shall be deemed to be served, and shall take effect, 2 hours after its transmission is completed.
28.4 Service outside business hours.  However, if under Clause 28.3 a notice would be deemed to be served:
(a) on a day which is not a business day in the place of receipt; or
(b) on such a business day, but after 5 p.m. local time;
the notice shall (subject to Clause 28.5) be deemed to be served, and shall take effect, at 9 a.m. on the next day which is such a business day.
 
28.5 Illegible notices.  Clauses 28.3 and 28.4 do not apply if the recipient of a notice notifies the sender within one hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.

65
28.6 Valid notices.  A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if,
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been.
28.7 English language.  Any notice under or in connection with a Finance Document shall be in English.
28.8 Meaning of “notice”. In this Clause “notice” includes any demand, consent, authorisation, approval, instruction, waiver or other communication.
28.9 Electronic communication.
(a) Any communication to be made between the Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent and the relevant Lender:
(i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
(iii) notify each other of any change to their respective addresses or any other such information supplied to them.
(b) Any electronic communication made between the Agent and a Lender will be effective only when actually received in readable form and, in the case of any electronic communication made by a Lender to the Agent, only if it is addressed in such a manner as the Agent shall specify for this purpose
29 SUPPLEMENTAL
29.1 Rights cumulative, non-exclusive.  The rights and remedies which the Finance Documents give to each Creditor Party are:
(a) cumulative;
(b) may be exercised as often as appears expedient; and
(c) shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.
29.2 Severability of provisions.  If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document.
29.3 Third party rights.  A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of this Agreement.
66
29.4 Counterparts.  A Finance Document may be executed in any number of counterparts.
29.5 PATRIOT Act Notice.  Each of the Agent and the Lenders hereby notifies the Borrowers that pursuant to the requirements of the PATRIOT Act and the policies and practices of the Agent and each Lender, the Agent and each of the Lenders is required to obtain, verify and record certain information and documentation that identifies the Borrowers and each Security Party, which information includes the name and address of the Borrowers and each Security Party and such other information that will allow the Agent and each of the Lenders to identify the Borrowers and each Security Party in accordance with the PATRIOT Act.
30 LAW AND JURISDICTION
30.1 English law.  This Agreement (and any non-contractual obligations connected with it) shall be governed by, and construed in accordance with, English law.
30.2 Exclusive English jurisdiction.  Subject to Clause 30.3, the courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement.
30.3 Choice of forum for the exclusive benefit of the Creditor Parties.  Clause 30.2 is for the exclusive benefit of the Creditor Parties, each of which reserves the right:
(a) to commence proceedings in relation to any matter which arises out of or in connection with this Agreement in the courts of any country other than England and which have or claim jurisdiction to that matter; and
(b) to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
The Borrowers shall not commence any proceedings in any country other than England in relation to a matter which arises out of or in connection with this Agreement.

30.4 Process agent. The Borrowers irrevocably appoint Hill Xxxxxxxxx Services (London) Ltd at their office for the time being, presently at The Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX, Xxxxxxx, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with this Agreement.
30.5 Creditor Party rights unaffected.  Nothing in this Clause 30 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
30.6 Meaning of “proceedings”.  In this Clause 30, “proceedings” means proceedings of any kind, including an application for a provisional or protective measure.
AS WITNESS the hands of the duly authorised officers or attorneys of the parties the day and year first before written.
67



SCHEDULE 1
 THE LENDERS AND COMMITMENTS

Lender
 
Lending Office
 
Commitment
  
 
EUROBANK ERGASIAS S.A.
 
00, Xxxx Xxxxxxx Xxxxxx
000 00 Xxxxxxx
Xxxxxx
Fax No: x00 000 0000000
Attn:  Loans Administration
$14,500,000
 
     







68
SCHEDULE 2


 DRAWDOWN NOTICE

 
To:
EUROBANK ERGASIAS S.A.
00, Xxxx Xxxxxxx
000 00 Xxxxxxx
Xxxxxx
 
Attention: [Loans Administration]
[       ] February 2016

DRAWDOWN NOTICE

1. We refer to the loan agreement (the “Loan Agreement”) dated [     ] February 2016 and made between (1) ourselves as Borrowers, (2) the Lenders referred to therein and (3) yourselves as Arranger, Account Bank, Agent and as Security Trustee in connection with a secured term loan of up to US$14,500,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
2. We request to borrow the Loan as follows:
(a) Amount: US$[14,500,000];
(b) Drawdown Date:  [      ] February 2016;
(c) Duration of the first Interest Period shall be [       ] months;
(d) Payment instructions: account of [                                 ] and numbered [                        ] with [                 ] of [                       ].
3. We represent and warrant that:
(a) the representations and warranties in Clause 10 of the Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference to the circumstances now existing;
(b) no Event of Default or Potential Event of Default has occurred or will result from the borrowing of the Loan.
4. This notice cannot be revoked without the prior consent of the Majority Lenders.
Yours faithfully


…………………………………
authorised signatory for
SAF-CONCORD SHIPPING LTD
ETERNITY SHIPPING COMPANY
ALLENDALE INVESTMENTS X.X.
XXXXXXX SHIPPING LIMITED
ALTERWALL BUSINESS INC.
AGGELIKI SHIPPING LTD
69
SCHEDULE 3


 CONDITION PRECEDENT DOCUMENTS
PART A

The following are the documents referred to in Clause 9.1(a):

1. A duly executed original of this Agreement, the Agency and Trust Deed, the Guarantee, the Accounts Pledge (together with all notices of assignment required thereunder).
2. Copies of the certificate of incorporation and constitutional documents of each Borrower, the Guarantor and the Approved Manager, together with up to date evidence of the good standing of each Borrower, the Guarantor and the Approved Manager.
3. Originals of resolutions of the directors and shareholders of each Borrower and originals of the relevant minutes containing the resolutions of the directors of the Guarantor and the Approved Manager authorising the execution of each of the Finance Documents referred to at 1 above to which that Borrower is a party and authorising named officers to give the Drawdown Notice and other notices under this Agreement.
4. The original of any power of attorney under which any Finance Document referred to at 1 above is executed on behalf of each Borrower, the Guarantor and the Approved Manager.
5. Copies of all consents which a Borrower or any Security Party requires to enter into, or make any payment under, any Finance Document.
6. All documentation required by the Agent in respect of the Borrowers and any other Security Party pursuant to each Lender’s “Know your customer” requirements, together with such other documents or evidence as the Lenders may reasonably require with respect to money laundering regulations.
7. Documentary evidence that the agent for service of process named in Clause 30 of this Agreement has accepted its appointment.
8. Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of Liberia and/or of the Xxxxxxxx Islands and/or of Panama and such other relevant jurisdictions as the Agent may require.
9. A certificate in a form and substance satisfactory to the Lenders confirming the legal ownership and the beneficial ownership of the shares in the Borrowers, in a form and substance satisfactory to the Agent in its sole discretion.
10. The originals of any mandates or other documents required in connection with the opening and operation of the Operating Account, the Retention Account and the Cash Collateral Deposit Account.
11. Receipt by the Agent and the Arranger of all fees due under Clause 20 of this Agreement.
12. Evidence that the sum of $2,800,000 is standing to the credit of the Cash Collateral Deposit Account held with the Agent or the Security Trustee or (at the Borrowers’ option) with any of their affiliates outside Greece in the name of either the Borrowers or the Guarantor, by way of cash collateral pursuant to the provisions of Clause 12.5 of this Agreement.
70
13. If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
PART B

The following are the documents referred to in Clause 9.1(b):

1. In respect of each Ship, a duly executed original of the Mortgage and the Assignment (together with all notices of assignment and acknowledgements required thereunder), together with original resolutions of directors/shareholders and a power of attorney of the Borrowers with respect to the execution of such Finance Documents by the Borrowers.
2. Documentary evidence that:
(a) each Ship will on the Drawdown Date be definitively and permanently registered in the name of the relevant Borrower under the Approved Flag;
(b) each Ship will on the Drawdown Date be in the absolute and unencumbered ownership of the relevant Borrower  save as contemplated by the Finance Documents;
(c) each Ship will on the Drawdown Date be classed with the highest available class with Lloyds Register of Ships (or IACS equivalent) free of all overdue recommendations and conditions of such classification society affecting Class;
(d) the Mortgage in respect of a Ship has been executed by the relevant Borrower and has been, or will immediately following drawdown of the Loan be, registered against that Ship as a valid first priority ship mortgage in accordance with the laws of the Approved Flag State; and
(e) each Ship will on the Drawdown Date be insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances shall have been complied with.
3. Documents establishing that each Ship will, as from the Drawdown Date, be managed by the Approved Manager on terms acceptable to the Agent, together with:
(a) the Approved Manager’s Undertaking in respect of the Ships, together with a copy of the ship management agreement for the Ships;
(b) the Guarantor’s Undertaking(s)-Assignments in respect of the Ships;
(c) copies of the Document of Compliance and Safety Management Certificate and ISSC;
(d) copies of such other ISM Code or ISPS Code documentation as the Agent may by written notice to the Borrowers have requested not later than 2 days before the Drawdown Date, certified as true and complete in all material respects by the Borrowers and the Approved Manager.
71
4. Valuations of the Ships addressed to the Agent (at the cost and the expense of the Borrowers), prepared in accordance with Clause 15.4 of this Agreement, in a form satisfactory to the Agent.
 
5. A favourable opinion from an independent insurance consultant appointed by the Agent on such matters relating to the insurances for the Ships as the Agent may require, and at the cost and expense of the Borrowers.
6. Favourable legal opinions from lawyers appointed by the Lenders on such matters concerning the laws of Liberia, the laws of the Xxxxxxxx Islands, the laws of Panama, the laws of the Approved Flag State (if different) and such other relevant jurisdictions as the Lenders may require.
7. Receipt by the Agent of any fees due under Clause 20 of this Agreement.
Every copy document delivered under this Schedule shall be certified as a true and up to date copy by a director or the secretary (or equivalent officer) of the Borrowers.
72

SCHEDULE 4


 TRANSFER CERTIFICATE

The Transferor and the Transferee accept exclusive responsibility for ensuring that this Certificate and the transaction to which it relates comply with all legal and regulatory requirements applicable to them respectively.

To: EUROBANK ERGASIAS S.A. for itself and for and on behalf of the Borrowers, each Security Party, the Arranger, the Account Bank, the Agent, the Security Trustee and each Lender, as defined in the Loan Agreement referred to below.

1. This Certificate relates to a Loan Agreement (the “Loan Agreement”) dated […. February 2016 and made between (1) the entities named therein as borrowers (the “Borrowers”), (2) the banks and financial institutions named therein as Lenders, (3) EUROBANK ERGASIAS S.A. as Arranger, Account Bank, Agent and Security Trustee, for a secured term loan of up to US$14,500,000.
2. In this Certificate:
“the Relevant Parties” means the Borrowers, each Security Party, the Arranger, the Account Bank, the Agent, the Security Trustee, each Lender;

“the Transferor” means [full name] of [lending office];

“the Transferee” means [full name] of [lending office].

Terms defined in the Loan Agreement shall, unless the contrary intention appears, have the same meanings when used in this Certificate.

3. The effective date of this Certificate is [       ] Provided that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.

4. The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Loan Agreement and every other Finance Document in relation to [    ] per cent of the Contribution outstanding to the Transferor (or its predecessors in title) which is set out below:


 
Contribution
Amount transferred
     
     
     

5. By virtue of this Transfer Certificate and Clause 26 of the Loan Agreement, the Transferor is discharged [entirely from its Commitment which amounts to $[      ]]   [from [    ] per cent. of its Commitment, which percentage represents   $[       ]] and the Transferee acquires a Commitment of $[            ].
6. The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Loan Agreement provides will become binding on it upon this Certificate taking effect.
73
7. The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Loan Agreement.
8.            The Transferor:
(a) warrants to the Transferee and each Relevant Party:
(i) that the Transferor has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which are in connection with this transaction; and
(ii) that this Certificate is valid and binding as regards the Transferor;
(b) warrants to the Transferee that the Transferor is absolutely entitled, free of encumbrances, to all the rights and interests covered by the assignment in paragraph 4 above;
(c) undertakes with the Transferee that the Transferor will, at its own expense, execute any documents which the Transferee reasonably requests for perfecting in any relevant jurisdiction the Transferee's title under this Certificate or for a similar purpose.
9.            The Transferee:
(a) confirms that it has received a copy of the Loan Agreement and each other Finance Document;
(b) agrees that it will have no rights of recourse on any ground against either the Transferor, the Arranger, the Account Bank, the Agent, the Security Trustee, any Lender in the event that:
(i) the Finance Documents prove to be invalid or ineffective,
(ii) the Borrowers or any Security Party fail to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents;
(iii) it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrowers or Security Party under the Finance Documents;
(c) agrees that it will have no rights of recourse on any ground against the Arranger, the Account Bank, the Agent, the Security Trustee, any Lender in the event that this Certificate proves to be invalid or ineffective;
(d) warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
(e) confirms the accuracy of the administrative details set out below regarding the Transferee.
74
10. The Transferor and the Transferee each undertake with the Agent and the Security Trustee severally, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which they or either of them may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
11. The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor under paragraph 8 above as exceeds one-half of the amount demanded by the Agent or the Security Trustee in respect of a claim, proceeding, liability or expense which was not reasonably foreseeable at the date of this Certificate; but nothing in this paragraph shall affect the liability of each of the Transferor and the Transferee to the Agent or the Security Trustee for the full amount demanded by it.

[Name of Transferor]
  
[Name of Transferee]
     
By:
  
By:
     
Date:
  
Date:

 
Agent

Signed for itself and for and on behalf of itself
as Agent and for every other Relevant Party

EUROBANK ERGASIAS S.A.

By:

Date:







75
 
Administrative Details of Transferee


Name of Transferee:

Lending Office:

Contact Person
(Loan Administration Department):

Telephone:

Telex:

Fax:

Contact Person
(Credit Administration Department):

Telephone:

Telex:

Fax:

Account for payments:




Note: This Transfer Certificate alone may not be sufficient to transfer a proportionate share of the Transferor's interest in the security constituted by the Finance Documents in the Transferor's or Transferee's jurisdiction. It is the responsibility of each Lender to ascertain whether any other documents are required for this purpose.

76

SCHEDULE 5



FORM OF COMPLIANCE CERTIFICATE
 
To:
EUROBANK ERGASIAS S.A.
83, Xxxx Xxxxxxx
000 00 Xxxxxxx
Xxxxxx
 
Attn:            Loans Administration
[date]                                      


Dear Sirs


Loan Agreement dated [  ] February 2016 (the “Loan Agreement”) made between (i) the Borrowers referred to therein, (ii) the Lenders referred to therein and (iii) EUROBANK ERGASIAS S.A. as Arranger, Account Bank, Agent and Security Trustee in connection with a loan facility of up to $14,500,000.

Terms defined in the Loan Agreement have their defined meanings when used in this Compliance Certificate.

We enclose with this certificate a copy of the audited consolidated annual accounts of the Guarantor referred to in the Loan Agreement (the “Guarantor”) for the financial year ending on 1.12.2015. The accounts (i) have been prepared in accordance with all applicable laws and GAAP consistently applied, (ii) give a true and fair view of the state of affairs of the Guarantor at the date of the accounts and of its profit for the period to which the accounts relate and (iii) fully disclose or provide for all significant liabilities of the Guarantor.

We also enclose copies of the valuations of the Ships which are used in calculating the asset cover ratio under Clause 15.1 of the Loan Agreement as at [            ].

The Borrowers represent that no Event of Default has occurred as at the date of this certificate [(except for the following matter or event [set out all material details of mater or event]).]

We now certify that, as at [           ].

(a) a minimum cash balance of $2,800,000 was maintained on the Cash Collateral Deposit Account (free of any Security Interest other than the Account Pledge) throughout the [12] months ending as at the date to which the enclosed accounts are prepared;

(b) the asset cover ratio under Clause 15.1 of the Loan Agreement is [        ]%.

We hereby repeat the representations and warranties set out in Clause 10 of the Loan Agreement and confirm that they remain true and correct by reference to the facts and circumstances existing on the date of this Compliance Certificate.

77
This certificate shall be governed by, and construed in accordance with, English law.

Signed


____________________
authorised signatory for
SAF-CONCORD SHIPPING LTD
ETERNITY SHIPPING COMPANY
ALLENDALE INVESTMENTS X.X.
XXXXXXX SHIPPING LIMITED
ALTERWALL BUSINESS INC.
AGGELIKI SHIPPING LTD

78

 





 
AutoNDA by SimpleDocs

Document Metadata

Filed: May 2nd, 2016
Draft better contracts in just 5 minutes Get the weekly Law Insider newsletter packed with expert videos, webinars, ebooks, and more!