Dated
28 September 2018
EIGHTHONE
CORP.
as
Borrower
and
WILMINGTON
TRUST, NATIONAL ASSOCIATION
as
Facility Agent
DEFERRED
fee agreement
Index
Execution
THIS
AGREEMENT is made on 28 September 2018
PARTIES
(1) |
EIGHTHONE
CORP., a corporation incorporated in the Republic of the Xxxxxxxx Islands whose registered office is at Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000 as borrower (the “Borrower”) |
|
|
(2) |
WILMINGTON
TRUST, NATIONAL ASSOCIATION, as agent for the other Finance Parties (the “Facility Agent”) |
BACKGROUND
(A) |
By
a facility agreement (the “Facility Agreement”) dated 27 September 2018, the Lenders have agreed to make
available to the Borrower a senior secured term loan facility of US$24,000,000 to assist the Borrower in refinancing certain
existing indebtedness secured on m.v. “ PYXIS EPSILON” (the “Ship”) and for general corporate
purposes. |
|
|
(B) |
In
consideration of the Lenders agreeing to enter into the Facility Agreement and to make the said term loan available to the
Borrower, the Borrower has agreed to pay the Deferred Fee to the Facility Agent for distribution to the Lenders in the manner
and subject to the provisions set out below. |
OPERATIVE
PROVISIONS
1 |
Definitions
and Interpretation |
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|
1.1 |
Incorporation
of defined expressions |
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|
Words
and expressions defined in clause 1.1 (Definitions) of the Facility Agreement shall, unless such words and expressions
are given other meanings in this Agreement, have the same meanings when used in this Agreement. |
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|
1.2 |
Additional
definitions |
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|
In
this Agreement: |
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|
“Deferred
Fee” means the deferred fee payable as calculated in accordance with Clause 3 (Calculation and Payment of Deferred
Fee). |
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.
|
“Facility
Agreement” means the facility agreement referred to in Recital (A). |
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|
“Fee
Quarter End Date” means 31 March, 30 June, 30 September and 31 December in each calendar year. |
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|
“Payment
Date” means the earliest of: |
|
(a) |
in
the case of a sale of the Ship, on the date on which the sale is completed by delivery of the Ship to the buyer; |
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(b) |
in
the case of a Total Loss, the earlier of: |
|
(i) |
the
date falling 180 days after the Total Loss Date; and |
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|
(ii) |
the
date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss. |
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(c) |
the
date on which the Facility Agent (acting on the instructions of the Majority Lenders) takes any action as a result of the
occurrence of an Event of Default which is continuing and a notice is served under Clause 25.21 (Acceleration); |
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(d) |
the
Termination Date; and |
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(e) |
the
last day of the Security Period. |
“Reference
Amount” means, on the applicable Payment Date, the amount by which:
|
(i) |
the
Ship Value on that date; and |
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(ii) |
the
accrued Dry Docking and Special Survey Reserves standing to the credit of the Earnings Account on that date; and |
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(iii) |
the
amount of the Excess Cash in relation to the part of the Cash Sweep Period commencing on the date after the Quarter End Date
immediately preceding the applicable Payment Date and ending on that Payment Date |
exceeds
|
(b) |
the
outstanding amount of the Loan on that date; and |
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(c) |
in
the case of a Ship becoming Total Loss or any of the circumstances falling under paragraph (c) of the definition of Payment
Date occur, the trade debt of the Vessel as on that Payment Date. |
“Ship
Value” means:
|
(a) |
in
the case of a sale of the Ship, the sale price of the Ship as evidenced by the relevant memorandum of agreement in connection
with such sale, less the aggregate amount of the commissions payable to any third party independent ship broker or ship brokers
(as the case may be) in connection with such sale of the Ship (documentary evidence of such commissions to be provided to
the Facility Agent); or |
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(b) |
in
all other cases, the market value of the Ship on the applicable Payment Date determined in accordance with Clause 23.7 (Provision
of valuations) of the Facility Agreement. |
For
the avoidance of doubt, the Borrower will be liable for the costs of all the valuations (maximum three) of the Ship obtained pursuant
to paragraph (b).
1.3 |
Construction
and interpretation |
Clause
1.2 (Construction) of the Facility Agreement applies, with any necessary modifications, to this Agreement.
2 |
Representations |
|
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2.1 |
General |
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The
Borrower represents and warrants to the Facility Agent as follows. |
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2.2 |
Corporate
power |
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The
Borrower has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it: |
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(a) |
to
execute this Agreement; and |
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(b) |
to
make all the payments contemplated by, and to comply with, this Agreement. |
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2.3 |
Consents
in force |
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|
All
the consents referred to in Clause 2.2 (Corporate power) remain in force and nothing has occurred which makes any of
them liable to revocation. |
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2.4 |
Legal
validity |
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|
This
Agreement constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance
with its terms subject to any relevant insolvency or other laws affecting creditors’ rights generally. |
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2.5 |
No
conflicts |
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|
The
execution by the Borrower of this Agreement and its compliance with this Agreement will not involve or lead to a contravention
of: |
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(a) |
any
law or regulation; or |
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(b) |
the
constitutional documents of the Borrower; or |
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(c) |
any
contractual or other obligation or restriction which is binding on the Borrower or any of its respective assets. |
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2.6 |
No
withholding taxes or set-off |
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|
All
payments which the Borrower is liable to make under this Agreement shall be made without set-off, deduction or withholding
for or on account of any tax payable under any law of any pertinent jurisdiction, other than a FATCA Deduction. |
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3 |
Calculation
and Payment of Deferred Fee |
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3.1 |
Agreement
to pay Deferred Fee |
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|
The
Borrower undertakes that, subject to the provisions of Clause 3.3, it will pay, or procure to be paid, to the Facility Agent,
for distribution to the Lenders pro rata to their participation in the outstanding Loan on the applicable Payment Date, the
Deferred Fee on the applicable Payment Date in the amount provided for in the following provisions in this Clause 3 (Calculation
and Payment of Deferred Fee). |
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3.2 |
Deferral |
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|
The
Deferred Fee is in consideration of the Lenders agreeing to enter into the Facility Agreement and is a condition precedent
to the obligations of the Lenders thereunder but the Lenders agree to defer the payment of the Deferred Fee in the manner
set out below in this Clause 3 (Calculation and Payment of Deferred Fee). |
3.3 |
Reduced
amount |
|
|
|
The
amount of the Deferred Fee is 15 per cent. of the original principal amount of the Loan borrowed under the Facility Agreement
but the Lenders have agreed to accept a lesser amount based on the calculations set out below in this Clause 3 (Calculation
and Payment of Deferred Fee). |
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3.4 |
Deferred
Fee |
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|
The
Borrower shall pay to the Facility Agent on the applicable Payment Date the Deferred Fee in an amount calculated as being
the lesser of: |
|
|
(a) |
15
per cent. of the amount of the Loan borrowed under the Facility Agreement; and |
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(b) |
15
per cent. of the Reference Amount less the aggregate of any amounts previously paid by the Borrower as Prepayment Fees pursuant
to the terms of the Facility Agreement during the Security Period. |
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3.5 |
Deferred
Fee and Prepayment Fee |
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|
In
the event that at any time during the Security Period both the Prepayment Fee payable pursuant to clause 10.3 (Prepayment
Fee) of the Facility Agreement and the Deferred Fee become simultaneously payable, the Borrower shall only be obliged
to pay the higher of (i) the Prepayment Fee and the (ii) the Deferred Fee. |
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3.6 |
Payment
and calculations |
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(a) |
All
payments to be made by the Borrower to the Facility Agent under this Agreement shall be made to the Facility Agent by not
later than 11:00 a.m. (New York time) on the Payment Date in same day Dollar funds settled in such manner as the Facility
Agent shall specify as being customary at the time for settlement of international transactions of the type contemplated by
this Agreement to the account that the Facility Agent shall from time to time notify the Borrower. |
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(b) |
Any
determination of the Deferred Fee that has been made by the Facility Agent (acting on the instructions of the Majority Lenders)
in accordance with the provisions of this Agreement shall, in the absence of manifest error, be conclusive evidence of the
amount of the Deferred Fee. |
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3.7 |
No
limitation of liability |
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|
The
liabilities of the Borrower under this Agreement are in addition to, and strictly without prejudice to, any of its liabilities
to the Finance Parties under the Facility Agreement. |
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4 |
Assignment
and Transfer |
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4.1 |
Facility
Agent - successors and assigns |
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|
This
Agreement shall be binding upon, and enure to the benefit of, the Facility Agent and its successors and permitted transferees
and assignees. |
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4.2 |
No
transfer by Borrower |
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The
Borrower shall not be entitled to assign or transfer any of its rights or obligations under this Agreement. |
5 |
Communications |
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5.1 |
Notices |
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The
provisions of clause 35 (Notices) of the Facility Agreement shall apply, with any necessary modifications, in relation
to any notice or demand given or made or to be given or made hereunder as if the same were set out in this Agreement. |
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6 |
Miscellaneous |
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6.1 |
Severability |
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In
case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect
under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby. |
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6.2 |
Not
a partnership |
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(a) |
This
Agreement does not, and shall not be deemed to, in any way create a partnership between the Finance Parties or any of them
and the Borrower. |
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(b) |
For
the avoidance of any doubt, no Finance Party shall share in any losses the Borrower suffers in relation to any actions taken
by them in respect of the Ship or the operation of the Ship. |
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6.3 |
Finance
Document |
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|
This
Agreement constitutes a Finance Document under the Facility Agreement. |
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7 |
Law
And Jurisdiction |
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7.1 |
Law
and jurisdiction |
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This
Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by English law. The
provisions of clause 45 (Enforcement) of the Facility Agreement shall apply, with any necessary modifications, to this
Agreement as if the same were set out in this Agreement. |
This
Agreement has been entered into on the date stated at the beginning of this Agreement.
Execution
Page
BORROWER |
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SIGNED
by |
) |
Xxxxxxxxxxxx
Xxxxxx |
)
/s/ Xxxxxxxxxxxx Xxxxxx |
duly
authorised |
) |
for
and on behalf of |
) |
EIGHTHONE
CORP. |
) |
in
the presence of: |
) |
|
|
Witness’
signature: |
)
/s/ Xxxxxxxxx Xxxxxxxxxxxx |
Witness’
name: |
)
Xxxxxxxxx Xxxxxxxxxxxx |
Witness’
address: |
)
Solicitor |
|
Xxxxxx
Xxxxxx & Xxxxxxxx |
|
000
Xxxxxxx Xxxxxx |
|
000
00 Xxxxxxxxx |
|
Xxxxxx
- Xxxxxx |
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FACILITY
AGENT |
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SIGNED
by |
) |
Xxxxxx
X. Xxxxx |
)
/s/ Xxxxxx X. Xxxxx |
duly
authorised |
)
Vice President |
for
and on behalf of |
) |
WILMINGTON
TRUST, |
) |
NATIONAL
ASSOCIATION |
) |
as
Facility Agent |
) |
in
the presence of: |
) |
|
|
Witness’
signature: |
)
/s/ Xxxxxxx Xxxxx |
Witness’
name: |
)
Xxxxxxx Xxxxx |
Witness’
address: |
)
00 X 0xx xx |
|
Xxxxxxxxxxx,
XX 00000 |