DATED 26 October 2015
Exhibit 4.7.3
Private and Confidential
DATED 26 October 2015
as Shareholder
– and –
DVB BANK SE
as Security Trustee
___________________________________
PLEDGE OVER SHARES
IN EIGHTHONE CORP.
____________________________________
INCE & CO
PIRAEUS
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Clause |
Page |
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1 |
Definitions |
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1 |
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2 |
Charging clause |
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3 |
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3 |
Representations and warranties |
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3 |
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4 |
Covenants by the Shareholder |
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4 |
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5 |
Dividends and voting rights |
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7 |
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6 |
Further assurance |
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8 |
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7 |
Powers of the Security Trustee |
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8 |
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8 |
Attorney |
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10 |
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9 |
Continuing security and other matters |
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11 |
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10 |
Discharge of security |
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13 |
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11 |
Certificates |
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13 |
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12 |
Payments |
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13 |
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13 |
Notices |
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14 |
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14 |
Other matters |
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15 |
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15 |
Jurisdiction |
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16 |
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16 |
Governing law |
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18 |
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Schedule 1 The Shares |
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19 |
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Schedule 2 Specimen instrument of transfer |
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20 |
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Schedule 3 Shareholders’ letter of authority |
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21 |
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Schedule 4 Form of irrevocable proxy |
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22 |
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Schedule 5 Directors’ resignation letter |
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23 |
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Schedule 6 Director’s letter of undertaking |
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24 |
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Schedule 7 Form of dividend mandate |
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25 |
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THIS DEED of PLEDGE is dated 26 October 2015 and made BETWEEN:
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(1) |
PYXIS TANKERS INC. a corporation incorporated under the Xxxxxxxx Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands, MH96960 (the “Shareholder”); and |
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(2) |
DVB BANK SE a company incorporated in Germany acting through its branch at Xxxxx xxx Xxxxxxxx 0 , X- 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx (the “Security Trustee”). |
WHEREAS:
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(A) |
The Shareholder is the beneficial owner of 500 registered shares without a par value in EIGHTHONE CORP., a corporation incorporated under the laws of the Xxxxxxxx Islands (the “Corporation”), representing all of the issued, non-assessable and paid up share capital of the Corporation. |
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(B) |
By a facility agreement dated 12 January 2015 (as amended by a supplemental agreement dated October 2015 and as may be further amended, supplemented, varied, extended, replaced, novated or restated from time to time, the “Facility Agreement”) and made between (i) the Corporation as borrower, (ii) DVB Bank SE as lender (the “Lender”) and (iii) DVB Bank SE as Agent and Security Trustee it was agreed that the Lender would make available to the Shareholder a loan facility of up to USD21,000,000. |
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(C) |
Pursuant to clause 16.14.1 of the Facility Agreement the Banks have appointed the Security Trustee as their security trustee and pursuant to a deed of trust dated 12 January 2015 executed by the Security Trustee as trustee, the Security Trustee has agreed to hold, receive, administer and enforce this Deed for and on behalf of the Banks. |
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(D) |
It is a term of the Facility Agreement that the Shareholder should execute a pledge in respect of the Shares (as defined below) in favour of the Security Trustee (in the form of this Deed). |
NOW THIS DEED WITNESSES as follows:
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1.1 |
Defined expressions |
Words and expressions defined in the Facility Agreement shall, unless otherwise defined herein or the context otherwise requires, have the same meanings when used in this Deed.
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1.2 |
Definitions |
In this Deed, unless the context otherwise requires;
“Collateral Instruments” means notes, bills of exchange, certificates of deposit and other negotiable and non-negotiable instruments and guarantees, relating to any indebtedness or liabilities of the Corporation or any other person liable and includes any documents or instruments creating or evidencing a mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, trust arrangement or security interest of any kind;
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“Expenses” means the aggregate at any relevant time (to the extent that the same have not been received or recovered by the Security Trustee) of:
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(a) |
all losses, liabilities, costs, duties, fees, charges, expenses, claims, damages, moneys and outgoings of whatever nature (including, but not limited to, Taxes, registration fees and legal costs) suffered, incurred or paid by the Security Trustee in connection with the exercise of the powers referred to in or granted by this Deed or otherwise payable by the Shareholder in accordance with clauses 7.5 and 7.6; and |
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(b) |
interest on all such losses, liabilities, costs, duties, fees, charges, expenses, claims, damages, moneys and outgoings from the date on which the same was suffered, incurred or paid by the Security Trustee until the date of receipt or recovery thereof (whether before or after judgment) at a rate per annum calculated in accordance with clause 3.4 of the Facility Agreement (as conclusively certified by the Security Trustee); |
“Outstanding Indebtedness” means the aggregate of the Loan and interest accrued and accruing thereon, the Expenses and all other sums of money from time to time owing to the Banks or any of them, whether actually or contingently, under the Security Documents or any of them;
“Pertinent Jurisdiction” means any jurisdiction in which or where the Shareholder is incorporated, resident, domiciled has a permanent establishment or assets, carries on or has a place of business or is otherwise effectively connected;
“Secured Obligations” means all obligations whatsoever of the Corporation under or pursuant to the Facility Agreement, whensoever arising, actual or contingent, and whether of payment, performance or compliance;
“Secured Property” means the Shares and all stock, shares, warrants, securities, rights, moneys or property (including the dividends, interest or income thereon or therefrom) accruing or acquired at any time and from time to time by way of redemption, purchase, bonus, preference, option or otherwise to or in respect of or derived from all or any of the Shares or any derivatives thereof, including the proceeds of any sale of any of the Shares; and
“Shares” means the 500 registered shares without a par value in the capital of the Corporation legally and beneficially owned by the Shareholder representing all of the issued, non- assessable and paid up share capital of the Corporation and shall include any other shares in the capital of the Corporation which may hereafter be beneficially owned by the Shareholder.
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1.3 |
Construction |
The provisions of clauses 1.3 and 1.4 of the Facility Agreement shall apply to this Deed as if references to “this Agreement” were to this Deed and references to “the Borrower” were to the Shareholder and otherwise mutatis mutandis.
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1.4 |
Contracts (Rights of Third Parties) Act 1999 |
No part of this Deed shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Deed.
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This Deed shall be read together with the Facility Agreement but, in the case of any conflict between them, the provisions of the Facility Agreement shall prevail.
In consideration of inter alia the Lender agreeing to make the Loan available to the Corporation, the Shareholder, with full title guarantee, hereby pledges, mortgages, charges, assigns, transfers, deposits, sets over and confirms and agrees to pledge, mortgage, charge, assign, transfer, deposit, set over and confirm to the Security Trustee as security for the payment of the Outstanding Indebtedness and as a continuing security for the payment of all moneys and the discharge of all obligations and liabilities hereby covenanted to be paid or otherwise hereby secured by way of a first fixed pledge all of its interest in and to all of the Secured Property.
The Shareholder hereby represents and warrants to the Security Trustee that:
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3.1.1 |
Title |
the Shareholder is the holder of the Shares and is the legal and beneficial owner of and has full right and title to, and has hereby pledged, the Secured Property and all the Shares are free from any Encumbrance of any kind (other than the Encumbrance hereby created) and are not, nor shall they be, subject to any option;
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3.1.2 |
Shares fully paid |
the Shares are fully paid or credited as fully paid and non-assessable and no calls have been, or can be, made in respect of the Shares;
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3.1.3 |
Shareholder Obligations |
the obligations of the Shareholder under this Deed are direct, general and unconditional obligations of the Shareholder;
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3.1.4 |
No other security etc. |
the Shareholder has not taken or received any security or lien from the Corporation in respect of any liability hereunder or in respect of any other liability of the Corporation to the Shareholder;
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3.1.5 |
No immunity |
neither the Shareholder nor any of its assets is entitled to immunity on the grounds of sovereignty or otherwise from any Proceedings whatsoever.
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The representations and warranties in clause 3.1 shall be deemed to be repeated by the Shareholder on and as of each day from the date of this Deed the end of the Facility Period as if made with reference to the facts and circumstances existing on each such day.
The Shareholder hereby covenants with the Security Trustee that during the continuance of this Deed the Shareholder shall at all times deposit with the Security Trustee and permit the Security Trustee during the continuance of this security to hold and retain:
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4.1.1 |
Certificates |
all share certificates and documents of title relating to the Shares together with any other documents of title relating to the Secured Property;
transfers of the Shares, duly completed (undated) in favour of the Security Trustee or its nominees or otherwise as the Security Trustee may direct in the form set out in schedule 2 together with letters of authority in respect of such transfers in the form set out in schedule 3;
an irrevocable proxy in respect of the Shares, executed by the Shareholder in favour of the Security Trustee in the form set out in schedule 4, entitling the Security Trustee to exercise all voting rights in respect of the Shares, subject to clause 5.1;
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4.1.4 |
Resignation/authority letters |
executed (undated) resignation letters from each Director and Officer of the Corporation in the form set out in schedule 5 together with letters of authority from each Director and Officer of the Corporation in respect of such resignation letters in the form set out in schedule 6; and
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4.1.5 |
Other documents |
all such other documents as the Security Trustee may from time to time require for perfecting its title to the Shares and/or the Secured Property or for vesting or enabling it to vest the same in itself or its nominees or in any purchaser to the intent that the Security Trustee may at any time, after the occurrence of an Event of Default which is continuing, without notice present them for registration.
PROVIDED ALWAYS THAT the Security Trustee shall not be entitled to exercise any of the rights or powers afforded to the Security Trustee under any of the aforesaid supporting documents unless and until an Event of Default has occurred which is continuing and the Security Trustee has become entitled to enforce its rights hereunder pursuant to clause 7.1 hereof.
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The Shareholder hereby further covenants with the Security Trustee that during the Facility Period it shall:
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4.2.1 |
Title |
warrant and defend the right, title and interest of the Security Trustee in and to the Secured Property against the claims and demands of any other persons;
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4.2.2 |
Payment of calls |
duly and promptly pay all calls, instalments or any other payments that may from time to time become due in respect of any of the Shares;
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4.2.3 |
Negative undertakings |
Save as permitted under the terms of any Security Documents, not (without the consent of the Security Trustee which shall not be unreasonably withheld or delayed):
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(a) |
create or permit to subsist any Encumbrance other than a Permitted Encumbrance on or over the Secured Property or any part thereof or interest therein or attempt or agree to do so; |
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(b) |
sell, transfer or otherwise dispose of the Secured Property or any part thereof or interest therein or agree so to do; |
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(c) |
allow or permit the Corporation to cancel, increase, create or issue or agree to issue or put under option or agree to put under option any share or loan capital or obligation now or hereafter convertible into share or loan capital of or in the Corporation of any class or call any uncalled capital; |
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(d) |
allow or permit the Corporation to make any alteration to, grant any rights in relation to or otherwise re-organise or purchase or reduce the share capital or reserves of the Corporation in any way or enter into any composition or arrangement with its creditors or any class of creditors of the Corporation; |
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(e) |
convene any meeting with a view either to the alteration of any of the provisions of the Corporation’s Articles of Incorporation/Association and By-Laws or to passing a resolution that the Corporation be wound up; or |
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(f) |
allow or permit the Corporation to permit any person other than the Shareholder to be holders of the Shares or any part thereof. |
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4.2.4 |
Appointment of other directors or officers |
duly and promptly notify the Security Trustee of the appointment of any other Director or Directors or Officer or Officers of the Corporation (whether by way of replacement of, or addition to, any of the existing Directors or Officers) and duly and promptly deliver to the Security Trustee the letter or letters of undertaking to resign referred to in clause 4.1 duly signed by such additional Director or Directors or Officer or Officers;
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Save with the prior written consent of the Security Trustee or as permitted under the terms of any Security Document, not do or cause or permit to be done anything which may in any way depreciate, jeopardise or otherwise prejudice the value to the Security Trustee of the security created or intended to be created by this Deed;
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4.2.6 |
Indebtedness due from the Corporation |
except as permitted by any other Security Documents, not demand or accept repayment in whole or in part of any Indebtedness now or hereafter due to the Shareholder from the Corporation, or from any other person liable, or demand or accept any security in respect thereof or assign or charge the same as security;
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4.2.7 |
No set-off or counterclaim |
not claim any set-off or counterclaim against the Corporation or any other person liable or claim or prove in competition with the Security Trustee in the bankruptcy or liquidation (or equivalent) of the Corporation or any other person liable or have the benefit of, or share in, any payment from or composition with, the Corporation or any other person liable for any Indebtedness of the Corporation or any other person liable but so that, if so directed by the Security Trustee, it shall prove for the whole or any part of its claim in the liquidation or bankruptcy (or equivalent) of the Corporation on terms that the benefit of such proof and any money received by it in respect thereof shall be held on trust for the Security Trustee and applied in or towards discharge of the liabilities and obligations of the Shareholder to the Security Trustee under this Deed in such manner as the Security Trustee may require;
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4.2.8 |
No subrogation |
except as permitted by any other Security Documents, not exercise any rights of subrogation, reimbursement, indemnity or contribution against the Corporation or any other Security Party;
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4.2.9 |
Payments and compositions |
not have the benefit of any share in any payment or composition from the Corporation or any other person or in any other guarantee or security now or hereafter held by the Security Trustee;
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4.2.10 |
No Encumbrance |
not take or receive any Encumbrance from the Corporation in respect of the liability of the Shareholder under this Deed; and
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4.2.11 |
Reports, etc. |
unless otherwise publicly available, promptly send to the Security Trustee a copy of every report or other notice, statement or circular sent or delivered to the Shareholder by the Corporation.
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4.3 |
Further covenants |
The Shareholder hereby further covenants and agrees with the Security Trustee that:
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the Security Trustee and its nominees may (at their discretion) following the occurrence of any Event of Default which is continuing exercise, in the name of the Shareholder or otherwise at any time whether pursuant to the powers conferred upon the Security Trustee under any irrevocable proxy referred to in clause 4.1.3 or otherwise pursuant to this Deed, and whether before or after demand for payment and without any further consent or authority on the part of the Shareholder, in respect of the Shares any voting rights and all powers or rights which may be exercisable by the person in whose name the Shares are registered but such power shall be exercised subject to the provisions of clause 5;
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4.3.2 |
Transfer of Shares to Security Trustee |
if so requested by the Security Trustee following the occurrence of any Event of Default which is continuing, the Shareholder shall transfer all or any of the Shares to the Security Trustee or to its nominees and the Security Trustee may hold all or any of the Shares in any branch of the Security Trustee or with any correspondents or other agents in any country;
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4.3.3 |
Filing of this Deed |
it will file or cause to be filed a copy of this Deed with the Secretary (or other appropriate officer) of the Corporation for the purpose of giving notice of this security to the Corporation and that it will obtain and deliver to the Security Trustee an acknowledgement of such filing; and
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4.3.4 |
Borrowed Money |
forthwith upon the exercise by the Security Trustee of the powers conferred upon the Security Trustee pursuant to this Deed after the occurrence of an Event of Default which is continuing without the need for any further notice from or to the Shareholder, the Corporation shall cease to have any liability towards the Shareholder in respect of any Borrowed Money and any obligation on the Corporation to repay the same shall thereupon be cancelled and the Shareholder may not make any demand, or accept payment of any funds (whether direct or by set-off) in respect of such Borrowed Money.
Unless and until the Security Trustee takes any steps under Clause 7 following the occurrence of any Event of Default which is continuing, the Shareholder shall be entitled to exercise all voting and other rights vested in the holder of the Shares notwithstanding that the share certificates in respect of the Shares are held by the Security Trustee, provided that the Shareholder shall not exercise such rights in a manner which would or might detract from the security created by this Deed or conflict with any provision of any of the Security Documents.
If an Event of Default has occurred and is continuing, the Security Trustee may require that any dividends, interest or other moneys which may be paid or payable in respect of the Secured Property shall be paid to the Security Trustee and shall be applied by the Security Trustee in or towards payment of the Expenses and the balance shall be applied by the Security Trustee in accordance with clause 13.1 of the Facility Agreement. So long as no Event
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of Default has occurred and is continuing and so long as the payment of any dividends, interest or other moneys does not constitute or give rise to an Event of Default, any such dividends shall be paid to the Shareholder.
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5.3 |
Delivery of dividend mandate |
Where the Security Trustee becomes entitled to receive dividends pursuant to clause 5.2, the Shareholder shall immediately execute and deliver to the Corporation a dividend mandate in the form set out in Schedule 7.
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5.4 |
Payment of dividends and interest |
Any dividends, interest or other moneys or property charged pursuant hereto which are received by the Shareholder after the power of sale under clause 7.1 has arisen shall be held in trust for the Security Trustee and shall be paid or delivered to the Security Trustee on demand for application in accordance with clause 5.2.
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6.1 |
Execution of further charges |
The Shareholder shall, at its own expense and at any time if and when required by the Security Trustee execute such further legal or other pledges, charges or assignments in favour of the Security Trustee as the Security Trustee shall from time to time reasonably require over all or any of the Secured Property and all rights relating thereto both present and future (including any substituted securities and any vendor’s lien) and any other transfers or documents the Security Trustee may from time to time reasonably require for perfecting its title thereto or, following the occurrence of any Event of Default which is continuing, for vesting, or enabling it to vest, the same in itself or its nominees or in any purchaser, to secure all moneys, obligations and liabilities hereby covenanted to be paid, or otherwise hereby secured, or to facilitate realisation of the Secured Property or the exercise of the powers conferred on the Security Trustee, such further pledges, charges or assignments to be prepared by or on behalf of the Security Trustee at the cost of the Shareholder.
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6.2 |
Other matters |
The Shareholder also undertakes at its own expense from time to time to execute, sign, perfect, do and (if required) register every such further assurance, document, act or thing as in the opinion of the Security Trustee may be necessary or desirable for the purpose of more effectively pledging, charging or assigning the Secured Property or perfecting the security constituted, or intended to be constituted, by this Deed.
At any time after the occurrence of an Event of Default which is continuing and following notice given to the Borrower in accordance with the provisions of clause 10.2 of the Facility Agreement:
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the Security Trustee, and any nominee of the Security Trustee may, complete the transfers in respect of the Shares deposited with the Security Trustee pursuant hereto, by dating them, and may submit all or any of the transfers together with any share certificates in respect thereof for registration in the name of the Security Trustee, or any nominee of the Security Trustee, and thereafter the Security Trustee or any such nominee may exercise all the powers or rights which may be exercisable by the registered holder of the Shares and all other powers conferred on mortgagees by law or otherwise without further notice and without any restrictions; and
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7.1.2 |
Application of dividends and interest |
any dividends, interest or other payments which may be received or receivable by the Security Trustee, or by any nominee, in respect of any of the Secured Property may be applied by the Security Trustee as though they were proceeds of sale.
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7.2 |
Sale or disposal |
In exercising the powers referred to in clause 7.1, the Security Trustee may sell or dispose of the Secured Property or any part thereof at such times in such manner for such consideration and generally on such terms and conditions as the Security Trustee may think fit (and the Security Trustee shall be entitled at its discretion to purchase any and all of the Secured Property so sold). Any such sale or disposition may be for such consideration and shall be payable at such time as the Security Trustee shall reasonably think fit.
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7.3 |
No enquiry by purchaser |
No purchaser or other person shall be bound or concerned to see or enquire whether the right of the Security Trustee to exercise any of the powers hereby conferred has arisen, nor be concerned with notice to the contrary, or with the propriety of the exercise or purported exercise of such powers.
All moneys received by the Security Trustee under, or in the exercise of any powers conferred by, this Deed shall be applied in or towards payment of the Expenses and the balance shall be applied in accordance with clause 13.1 of the Facility Agreement.
The Shareholder shall pay to the Security Trustee on a full indemnity basis on demand all expenses, claims, liabilities, losses, costs, duties, fees, charges, damages, moneys and outgoings of whatever nature (including but not limited to, legal costs) suffered, reasonably incurred or paid by the Security Trustee (as certified by the Security Trustee) in connection with:
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7.5.1 |
the negotiation, preparation, execution or registration of this Deed and of any amendment or supplement to this Deed; |
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7.5.2 |
the granting of any consent or waiver under or in connection with this Deed, and any request for such consent or waiver; |
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7.5.3 |
any breach of the warranties in clause 3 and any failure by the Shareholder to perform or discharge its obligations and liabilities pursuant to this Deed; |
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7.5.4 |
any action by the Shareholder contrary to the provisions of Clause 4.2.5 which in the reasonable opinion of the Security Trustee may depreciate, jeopardise or otherwise prejudice the value to the Security Trustee of the security created or intended to be created by this Deed; |
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7.5.5 |
any step taken or contemplated by or on behalf of the Security Trustee with a view to the protection, exercise or enforcement of any right or security interest created by or arising in connection with this Deed or otherwise in respect of the Outstanding Indebtedness or the security therefor or for any similar purpose; and |
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7.5.6 |
the release of any part of the Secured Property from the security created by this Deed. |
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7.6.1 |
The Security Trustee shall not be liable to account as mortgagee in possession in respect of all or any of the Secured Property and shall not be liable for any loss upon realisation or for any neglect or default to present any interest coupon or any bond or stock drawn for repayment or for any failure to pay any call or instalment or to accept any offer or to notify the Shareholder of any such matter of for any loss occasioned by the timing of the exercise of any of its powers under this Deed or for any other loss of any nature whatsoever howsoever arising in connection with the Secured Property or the exercise or purported exercise of any powers contained in this Deed, regardless of whether such liability is alleged to arise in contract, tort, negligence, breach of statutory duty or otherwise. |
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7.6.2 |
The Shareholder shall indemnify the Security Trustee on demand against any and all claims, losses, damages, demands, causes of action, obligations, liabilities, costs and expenses (including, but not limited to, legal costs) of whatsoever nature howsoever arising from or in connection with anything done or omitted in the exercise or purported exercise of any powers contained in this Deed (including without limitation powers vested in the Security Trustee by virtue of clause 8) or otherwise in connection therewith and herewith or with any part of the Secured Property or otherwise howsoever in connection with any of the matters dealt with in any of the Security Documents unless such losses, actions, claims, expenses, demands, obligations or liabilities arise from the Security Trustee’s gross negligence or wilful misconduct. |
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7.6.3 |
The Security Trustee and the Shareholder hereby agree and declare that the benefit of this clause 7.6 shall extend to and may be enforced by, any officer, employee, agent (including without limitation any person appointed by the Security Trustee pursuant to clause 14.5) or business associate of the Security Trustee, and this clause 7.6 shall be read and construed as if references to the Security Trustee were references to such officer, employee, agent or business associate, as the case may be. |
For the purpose of exercising, securing, enforcing or realising the Security Trustee’s powers, rights and interest to, in, or in relation to, the Secured Property and the due and punctual performance and discharge of all Secured Obligations and all obligations and liabilities hereby covenanted to be paid or otherwise hereby secured, the Shareholder irrevocably and by way
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of security appoints the Security Trustee its attorney, on its behalf and in its name or otherwise, to execute, seal, deliver and complete any transfers or other documents which the Security Trustee may require for perfecting its title to or for vesting the Shares both present and future in the Security Trustee or its nominees or in any purchaser, to make any alteration or addition to the Shares comprised therein or any other alteration or addition and generally to sign, seal, deliver and otherwise perfect any such transfers or other documents and any legal or other pledges/charges or assignments over the Shares referred to in clause 6 and to do all such acts and things as may be required for the full exercise of the powers hereby conferred including any sale or other disposition of the Secured Property, provided always that such powers shall not be exercisable until the occurrence of an Event of Default which is continuing.
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8.2 |
Protection of Security |
The Shareholder hereby irrevocably appoints the Security Trustee to be its attorney in its name and on its behalf and as its act and deed or otherwise of it to agree the form of and to do and execute all deeds, instruments, acts and things to file, record, register or enrol this Deed which the Security Trustee may in its reasonable discretion consider necessary or advisable, now or in the future, in order to ensure the legality, validity, enforceability or admissibility in evidence of this Deed or for the purpose of protecting or maintaining the security created by this Deed of for any similar or related purpose.
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8.3 |
Dealings with attorneys, ratification |
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8.3.1 |
The exercise, by or on behalf of the Security Trustee, of the power of attorney in clause 8.1, shall not put any person dealing with the Security Trustee upon any enquiry as to whether an Event of Default has occurred, nor shall such person be in any way affected by notice that no such event has occurred, and the exercise by the Security Trustee of such power shall constitute conclusive evidence as against such person of its right to exercise the same. |
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8.3.2 |
The Shareholder ratifies and confirms, and agrees to ratify and confirm any deed, assurance, agreement, instrument, act or thing which any such attorney may lawfully execute or do following the occurrence of an Event of Default which is continuing in the exercise or purported exercise of any powers contained in this Deed (including powers vested in the Security Trustee by virtue of this clause 8) or otherwise in connection therewith or with any part of the Secured Property, and the Shareholder hereby irrevocably appoints the Security Trustee to be its attorney, on its behalf and in its name to ratify on its behalf any transaction or action which the Security Trustee has in good faith purported to enter into or to take for the purpose of exercising powers conferred hereby. |
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9.1 |
Continuing security |
It is agreed that the security created by this Deed and the obligations and liabilities of the Shareholder and rights, remedies and powers of the Security Trustee hereunder:
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9.1.1 |
shall be held by the Security Trustee as a continuing security for the payment of the Outstanding Indebtedness and the performance and observance of and compliance with all of the covenants, terms and conditions contained in the Security Documents, express or implied; |
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9.1.3 |
may be enforced by the Security Trustee without prior recourse to any such security or guarantee as is referred to in clause 9.1.2 and the Shareholder waives all rights it may have of first requiring the Banks or any of them to enforce any such security or guarantee or to proceed against or claim payment from the Corporation or any other person; |
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9.1.4 |
shall not be satisfied by any intermediate payment or satisfaction of any part of the Outstanding Indebtedness or by any settlement of accounts between the Corporation, the Shareholder or any other person who may be liable to the Banks or any of them in respect of the Outstanding Indebtedness or any part thereof, and the Security Trustee; |
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9.1.5 |
shall not in any way be prejudiced or affected by any time, indulgence or relief being given by the Banks or any of them to the Corporation or any other person, by any amendment or supplement to the Facility Agreement, any of the other Security Documents or any other document, by the taking, variation, compromise, renewal or release of or refusal or neglect or perfect or enforce any right, remedy or security against the Corporation or any other person or by anything done or omitted which but for this provision might operate to exonerate the Shareholder; and |
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9.1.6 |
shall not in any way be prejudiced or affected by any change in the constitution of, or any amalgamation or reconstruction of the Corporation, the Security Trustee or any other person or by any legal limitation, disability, incapacity or other circumstances relating to the Corporation or any other person, whether or not known to the Security Trustee, by any invalidity or irregularity or unenforceability of the obligations of the Corporation or any other person under the Facility Agreement or any of the other Security Documents or otherwise and, in the event that any obligation or purported obligation of the Corporation or any other person which, if enforceable or valid or continuing, would be secured by this Deed is or becomes wholly or in part unenforceable or invalid or terminated for any reason whatsoever, the Shareholder shall keep the Security Trustee fully indemnified against any loss suffered by the Security Trustee as a result of any failure by the Corporation or such other party to perform any such obligation or purported obligation. |
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9.2 |
Rights additional |
All the rights, remedies and powers vested in the Security Trustee hereunder shall be in addition to and not a limitation of any and every other right, power or remedy vested in the Security Trustee under this Deed, the Facility Agreement, the other Security Documents or at law and all the powers so vested in the Security Trustee may be exercised from time to time and as often as the Security Trustee may require.
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9.3 |
No enquiry |
The Security Trustee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Deed, or to make any claim or take any action to collect any moneys receivable by the Security Trustee in the exercise of any powers conferred by this Deed, or to enforce any rights or benefits hereby assigned to the Security Trustee or to which the Security Trustee may at any time be entitled under this Deed.
12
Any money received by virtue of or in connection with the security created by this Deed may be placed to the credit of a suspense account with a view to preserving the rights of the Security Trustee to prove for the whole of the Outstanding Indebtedness against the Corporation in the event of any proceedings in, or analogous to, liquidation, composition or arrangement.
|
9.5 |
Settlements conditional |
Any release, discharge or settlement between the Shareholder and the Security Trustee shall be conditional upon no security disposition or payment to the Security Trustee by the Corporation, the Shareholder or any other person being void or set aside or ordered to be refunded pursuant to any provisions or enactments relating to bankruptcy, liquidation, administration or insolvency or for any other reason whatsoever and if such condition shall not be fulfilled, the Security Trustee shall be entitled to enforce the security created by this Deed and the other Security Documents as if such release, settlement or discharge had not occurred and any such payment had not been made.
At the end of the Facility Period the security hereby constituted shall terminate and the Security Trustee shall, at the request and cost of the Shareholder, deliver, transfer or cause to be released to the Shareholder, or to such person or persons as the Shareholder shall direct, the documents and other items referred to in clause 4.1, and release and retransfer the Secured Property to the Shareholder or to such person or persons as the Shareholder shall direct, free and discharged from the security hereby constituted.
A certificate by the Security Trustee as to any amount due or calculation made or any matter determined in connection with this Deed shall be conclusive and binding on the Shareholder except in the case of manifest error.
|
12.1 |
No deductions |
All payments to be made by the Shareholder under this Deed shall be made in full, without any set-off or counterclaim whatsoever and, subject as provided in clause 12.2, free and clear of any deductions or withholdings, in Dollars on the due date to such account as the Security Trustee shall from time to time notify to the Shareholder.
If at any time the Shareholder is required to make any deduction or withholding in respect of Taxes or otherwise from any payment due under this Deed for the account of the Security Trustee, the sum due from the Shareholder in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Security Trustee receives on the due date for such payment (and retains, free from any liability in respect of such deduction or withholding) a net sum equal to the sum which it would have received had no such deduction or withholding been required to be made and the Shareholder shall indemnify the Security Trustee against any losses or costs incurred by it by
13
reason of any failure of the Shareholder to make any such deduction or withholding or by reason of any increased payment not being made on the due date for such payment. The Shareholder shall promptly deliver to the Security Trustee any receipts, certificates or other document evidencing the amounts (if any) paid or payable in respect of any such deduction or withholding.
If any sum due from the Shareholder under this Deed or any order or judgment given or made in relation hereto has to be converted from the currency (the “first currency”) in which the same is payable under this Deed or under such order or judgment into another currency (the “second currency”) for the purpose of (a) making or filing a claim or proof against the Shareholder, (b) obtaining an order or judgment in any court of other tribunal or (c) enforcing any order or judgment given or made in relation to this Deed, the Shareholder shall indemnify the Security Trustee on demand in respect of any loss suffered as a result of any difference between (i) the rate of exchange used to convert the sum in question from the first currency into the second currency and (ii) the rate or rates of exchange at which the Security Trustee may, in the ordinary course of business, purchase the first currency with the second currency upon receipt of a sum paid to it in satisfaction, in whole or in part, of any such order, judgment, claim or proof. Any amount due from the Shareholder under this clause 12.3 shall be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of this Deed and the term “rate of exchange” includes any premium and costs of exchange payable in connection with the purchase of the first currency with the second currency.
|
13.1.1 |
Unless otherwise specifically provided herein, every Notice under or in connection with this Deed shall be given in English by letter delivered personally and/or sent by first class post and/or transmitted by fax. |
|
13.1.2 |
In this clause 13, “Notice” and/or “Notices” includes any demand, consent, authorisation, approval, instruction, certificate, request, waiver or other communication whatsoever. |
|
13.2 |
Addresses for Notices, effective date of Notices |
|
Address: |
c/o PYXIS MARITIME CORP. |
|
|
X. Xxxxxxxxx 59 |
|
|
Maroussi 15125 |
|
|
Greece |
|
|
|
|
Fax: |
x00 000 0000 000 |
14
|
Address: |
DVB Bank SE |
|
|
Park House |
|
|
16-18 Finsbury Circus |
|
|
London EC2M 7EB |
|
|
England |
|
|
|
|
Attn: |
Transaction & Loan Services. |
|
Fax no: |
x00 000 000 0000 |
|
with a copy to: |
DVB Bank SE |
|
|
Representative Office |
|
|
South Polis Center |
|
|
Building K4, |
|
|
0, Xxxxxxxxx Xxxxxx & 0, Xxxxx Leof. Posidonos |
|
|
Delta Paleo Faliro |
|
|
175 61 Athens, Greece |
|
|
|
|
Attn: |
Semiramis Stampira |
|
Fax no: |
x00 000 000 0000 |
|
Email: |
Xxxxxxxxx.Xxxxxxxx@xxxxxxx.xxx |
|
13.2.4 |
If under clause 13.2.1 or 13.2.3 any Notice would be deemed to have been given and effective on a day which is not a working day in the place of receipt or is outside normal business hours in the place of receipt, the Notice shall be deemed to have been given and to have taken effect at the opening of business on the next working day. |
|
14.1 |
Time of the essence |
|
14.1.1 |
Time shall be of the essence in respect of all obligations of whatsoever nature of the Shareholder under this Deed, howsoever and whensoever arising. |
|
14.2 |
No waiver |
No failure or delay by the Security Trustee in exercising any right, power or remedy vested in it under this Deed shall operate as a waiver thereof nor shall any single or partial exercise or waiver of any right, power or remedy preclude any other or further exercise thereof or the exercise of any other power, right or remedy. The remedies provided in this Deed are cumulative and are not exclusive of any remedies provided by law.
15
Each of the provisions of this Deed is severable and distinct from the others and if at any time one or more of such provisions is or becomes invalid illegal or unenforceable the validity legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
The indemnities contained in this Deed shall survive any termination of this Deed howsoever occurring.
|
14.5 |
Delegation of powers |
The Security Trustee shall be entitled, at any time and as often as may be expedient, to delegate all or any of the powers and discretions vested in it by this Deed (including the power vested in it by virtue of clause 8) in such manner, upon such terms, and to such person as the Security Trustee in its absolute discretion may think fit.
|
14.6 |
Assignment by Shareholder |
The Shareholder may not assign or transfer any of its rights or obligations under this Deed without the prior written consent of the Agent, provided always that any transfer of the Shareholder’s rights and obligations hereunder that may occur by merger as a result of an IPO shall not require the prior consent of the Agent and shall not constitute a breach of the Shareholder’s obligation under this clause 14.6.
|
14.7 |
Assignment by Security Trustee |
The Security Trustee may assign all or any of its rights or benefits under this Deed to any person in favour of whom an assignment has been made in accordance with clause 15.3 of the Facility Agreement and the Shareholder undertakes, immediately on being requested to do so by the Security Trustee and at the cost of the Security Trustee, to enter into such documents as may be necessary or desirable to effect such transfer.
|
14.8 |
Disclosure of information |
The Security Trustee may disclose to a potential assignee or transferee or to any other person who may propose entering into contractual relations with the Security Trustee in relation to the Facility Agreement, such information about the Shareholder as the Security Trustee shall consider appropriate.
For the benefit of the Security Trustee, and subject to clause 15.4, the Shareholder hereby irrevocably agree that the courts of England shall have non-exclusive jurisdiction:
16
|
the dispute or other matter arises under the law of England or under the law of some other country; and |
|
15.1.2 |
to grant interim remedies, or other provisional or protective relief. |
|
15.2 |
Submission and service of process |
For the purpose of clause 15.1, the Shareholder irrevocably and unconditionally submits to the jurisdiction of the English courts. Without prejudice to any other mode of service, the Shareholder:
|
15.2.2 |
agrees to maintain such an agent for service of process in England for so long as any amount is outstanding and/or the Shareholder has any actual or contingent liability arising out of or in connection with this Deed; |
|
15.2.3 |
agrees that failure by a process agent to notify the Shareholder of service of process will not invalidate the proceedings concerned; |
|
15.2.5 |
agrees that if the appointment of any person mentioned in clause 15.2.1 ceases to be effective, the Shareholder shall immediately appoint a further person in England to accept service of process on its behalf in England and, failing such appointment within 7 days, the Security Trustee shall thereupon be entitled and is hereby irrevocably authorised by the Shareholder in those circumstances to appoint such person by Notice to the Shareholder. |
|
15.3 |
Forum non conveniens and enforcement abroad |
The Shareholder:
|
15.3.1 |
waives any right and agrees not to apply to the English court or any other court in any jurisdiction whatsoever to stay or strike out proceedings commenced in England on the ground that England is an inappropriate forum and/or that there is another more appropriate forum and/or that proceedings have been or will be commenced in any other jurisdiction in connection with any dispute or other matter and/or related matter falling within clause 15.1, and |
|
15.3.2 |
agrees that a judgment or order of an English court in a dispute or other matter falling within clause 15.1 shall be conclusive and binding on the Shareholder and may be enforced against it in the courts of any other jurisdiction. |
Nothing in this clause 15 limits the right of the Security Trustee to bring proceedings, including third party proceedings, against the Shareholder, or to apply for interim remedies,
17
in connection with this Deed in any other court and/or concurrently in more than one jurisdiction. The obtaining by the Security Trustee of judgment in one jurisdiction shall not prevent the Security Trustee from bringing or continuing proceedings in any other jurisdiction, whether or not these shall be founded on the same cause of action.
|
15.5 |
Enforceability despite invalidity of Deed |
The jurisdiction agreement contained herein shall be severable from the remainder of this Deed and shall remain valid, binding and in full force and shall continue to apply notwithstanding this Deed, or any part thereof, being held to be avoided and/or rescinded and/or terminated and/or discharged and/or frustrated and/or invalid, unenforceable, illegal, discharged or otherwise of no effect for any reason.
This Deed and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
IN WITNESS whereof the parties hereto have caused this Deed to be duly executed as a deed the day and year first before written.
18
Schedule 1
The Shares
|
Corporation |
Name of Shareholder |
Certificate nos. |
No. of shares etc. |
Par value of each (USD) |
|
EIGHTHONE CORP.
|
|
5 |
500 |
N/A |
19
Schedule 2
[Specimen instrument of transfer]
STOCK TRANSFER FORM
PYXIS TANKERS INC. of the Xxxxxxxx Islands in consideration of the sum of One United States Dollar (US$1) paid to me by of
(hereinafter called the “Transferee”) does hereby transfer to the Transferee ( ) shares (represented by Share Certificate number ) in EIGHTHONE CORP. of the Xxxxxxxx Islands.
IN WITNESS whereof PYXIS TANKERS INC. has caused this Instrument of Transfer to be duly executed on
|
SIGNED by |
|
) |
|
for and on behalf of |
|
) |
|
|
) |
|
|
in the presence of: |
|
) |
20
Schedule 3
Shareholders’ letter of authority
|
To: |
DVB BANK XX |
|
|
Xxxxx der Republik 6 |
|
|
D- 60325 Frankfurt am Main |
|
|
Germany |
Date:
Dear Sirs
EIGHTHONE CORP. (the “Corporation”)
We hereby unconditionally and irrevocably authorise you to date and otherwise complete the share transfer form in respect of our shares in the Corporation deposited by ourselves with yourselves pursuant to the pledge dated October 2015 (the “Pledge”) between ourselves and yourselves, as and when you become entitled to date and complete the same pursuant to the terms of the Pledge.
Yours faithfully
Signed:…………………….
Xxxx authorised signatory
for and on behalf of
Shareholder of the Corporation
21
Schedule 4
Form of irrevocable proxy
We, PYXIS TANKERS INC. hereby irrevocably appoint DVB BANK SE as our proxy to vote at meetings of the Shareholders of EIGHTHONE CORP. of the Xxxxxxxx Islands (the “Corporation”) in respect of any existing or further shares in the Corporation which may have been or may from time to time be issued to us and/or registered in our name. This proxy is irrevocable inter alia by reason of being coupled with the interest of DVB BANK SE as chargee of the aforesaid shares.
Dated: October 2015
Signed:……………………….
Xxxx authorised signatory
for and on behalf of
Shareholder of the Corporation
22
Schedule 5
Director’s/Officer’s resignation letter
To:The Secretary and Directors,
EIGHTHONE CORP. (the “Corporation”)
Date:
Dear Sirs
I hereby resign as a director/officer of the Corporation and confirm that I have no right to compensation or claims against the Corporation for loss of office, arrears of pay or otherwise howsoever.
Yours faithfully
…………………………………
23
Schedule 6
Director’s/Officer’s letter of authority
|
To: |
DVB BANK XX |
|
|
Xxxxx der Republik 6 |
|
|
D- 60325 Frankfurt am Main |
|
|
Germany |
Date: October 2015
Dear Sirs
EIGHTHONE CORP. (the “Corporation”)
I hereby unconditionally and irrevocably authorise you to date and otherwise complete the resignation letter in respect of the Corporation deposited by myself with yourselves pursuant to the pledge dated October 2015 (the “Pledge”) between PYXIS TANKERS INC. and yourselves (in the form attached to the Pledge as Schedule 5), following an Event of Default (as defined or referred to in the Pledge) which is continuing at the time such resignation letter is dated.
Yours faithfully
…………………………………
24
Schedule 7
Form of dividend mandate
|
To: |
EIGHTHONE CORP. |
Dividend Mandate
With effect from today’s date and pending receipt by you of instructions from ourselves and DVB BANK SE to the contrary we, PYXIS TANKERS INC., hereby authorise and direct you to pay any and all dividends, interest and other moneys paid or payable on the shares in EIGHTHONE CORP. registered in our name to or to the order of DVB BANK SE of Xxxxx xxx Xxxxxxxx 0 , X- 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx. On receipt of this mandate please acknowledge to DVB BANK SE at the above address that you will act in accordance with the instructions contained herein.
Dated:
Signed:…………………….
Xxxx authorised signatory
for and on behalf of
PYXIS TANKERS INC.
Shareholder of the Corporation
25
|
SIGNED, SEALED and DELIVERED |
|
) |
|
|
as a DEED by Xxxxxxxxxxxx Xxxxxx |
|
) |
|
|
for and on behalf of |
|
) |
|
|
PYXIS TANKERS INC. |
|
) |
|
|
pursuant to a power of attorney |
|
) |
…/s/ Xxxxxxxxxxxx Xxxxxx……………………………. |
|
dated 12 October 2015 |
|
) |
Attorney-in-Fact |
|
in the presence of: |
|
) |
|
|
|
|
|
|
|
/s/ Xxxxxxxxx Xxxxxx |
|
|
|
|
Witness |
|
|
|
|
SIGNED, SEALED and DELIVERED |
|
) |
|
|
as a DEED by Xxxxx Xx Xx |
|
) |
|
|
For and on behalf of |
|
) |
|
|
DVB BANK SE |
|
) |
|
|
pursuant to a power of attorney |
|
) |
.../s/ Xxxxx Le Du…………………………… |
|
dated 23 September 2015 |
|
) |
Attorney-in-Fact |
|
in the presence of: |
|
) |
|
|
|
|
|
|
|
/s/ Xxxxxxxx Xxxxx |
|
|
|
|
Witness |
|
|
|
26
