LOAN AGREEMENTfor a secured floating interest rate loan facility of up to US$5,500,000
Dated: 14th June, 2017
ALPHA BANK A.E.
- and -
BULK FREEDOM CORP.
for a secured floating interest rate loan facility of up to US$5,500,000 |
Xxxx X. Xxxxxxx & Co.
Law Offices
Piraeus (J18-182622/C)
TABLE OF CONTENTS
CLAUSE | HEADINGS PAGE |
1. | PURPOSE, DEFINITIONS AND INTERPRETATION 3 |
2. | THE LOAN 24 |
3. | INTEREST 27 |
4. | REPAYMENT - PREPAYMENT 32 |
5. | PAYMENTS, TAXES, LOAN ACCOUNT AND COMPUTATION 35 |
6. | REPRESENTATIONS AND WARRANTIES 37 |
7. | CONDITIONS PRECEDENT 44 |
8. | COVENANTS 50 |
9. | EVENTS OF XXXXXXX 00 |
00. | INDEMNITIES - EXPENSES – FEES 71 |
11. | SECURITY, APPLICATION, AND SET-OFF 77 |
12. | UNLAWFULNESS, INCREASED COSTS AND BAIL-IN 79 |
13. | OPERATING ACCOUNT 82 |
14. | ASSIGNMENT, TRANSFER, PARTICIPATION, LENDING OFFICE 84 |
15. | MISCELLANEOUS 87 |
16. | NOTICES AND COMMUNICATIONS 90 |
17. | LAW AND JURISDICTION 91 |
SCHEDULE 1: Form of Drawdown Notice
SCHEDULE 2: Form of Insurance Letter
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THIS AGREEMENT is dated the 14th day of June, 2017 and made BETWEEN:
(1) | ALPHA BANK A.E., a banking société anonyme incorporated in and pursuant to the laws of the Hellenic Republic with its head office at 00 Xxxxxxx Xxxxxx, Xxxxxx XX 000 00, Xxxxxx, acting, except as otherwise herein provided, through its office at 00 Xxxx Xxxxxxx, Xxxxxxx, Xxxxxx (hereinafter called the “Lender”, which expression shall include its successors and assigns); and |
(2) | BULK FREEDOM CORP., a corporation incorporated in the Republic of the Xxxxxxxx Islands, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000 (hereinafter called the “Borrower”, which expression shall include its successors) |
1. |
1.1 |
1.2 | Definitions. Subject to Clause 1.3 (Interpretation) and Clause 1.4 (Construction of certain terms), in this Agreement (unless otherwise defined in the relevant Finance Document and unless the context otherwise requires) and the other Finance Documents each term or expression defined in the recital of the parties and in this Clause shall have the meaning given to it in the recital of the parties and in this Clause: |
“ABT Charterparty” means the time-charter entered into between (a) Americas Bulk Transport (BVI) Limited, of Bermuda (the “ABT Charterer”) in respect of the employment of the Vessel for a period of at least three (3) years and at a minimum net daily rate of $8,500/day, under terms and conditions acceptable to the Lender (and shall include any addenda thereto);
“Account Pledge Agreement” means an agreement to be entered into between the Borrower and the Lender for the creation of a pledge over the Operating Account in favour of the Lender, in form and substance satisfactory to the Lender as the same may from time to time be amended and/or supplemented;
“Advance” means each borrowing of a portion of the Commitment by the Borrower or (as the context may require) the principal amount of such borrowing;
“Alternative Rate” means a rate agreed between the Lender and the Borrower on the basis of which (instead of LIBOR) the interest rate is determined pursuant to Clause 3.6 (Market disruption – Non Availability);
“Applicable Sanctions" means any Sanctions by which any Security Party is bound or to which it is subject (which shall include, without limitation, any extra-territorial sanctions imposed by law or regulation of the United States of America) or, as regards a regulation, compliance with which is reasonable in the ordinary course of business of any Security Party;
“Approved Manager” means for the time being SEAMAR MANAGEMENT S.A., a company duly incorporated and validly existing under the laws of the Republic of Panama, and having an
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office established in Greece pursuant to the Greek laws 89/67, 378/68, 27/75 and 814/79 (as amended) at 00 Xxxxxxxxx Xxx, 00000, Xxxxxxxx, Xxxxxx, Xxxxxx, or any other person appointed by the Borrower with the consent of the Lender (such consent not to be unreasonably withheld), as the manager of the Vessel, and includes its successors in title;
“Approved Manager’s Undertaking” means a letter of undertaking and subordination to be executed by the Approved Manager, as manager of the Vessel, in favour of the Lender, such Approved Manager’s Undertaking to be and in form and substance satisfactory to the Lender as the same may from time to time be amended and/or supplemented;
“Approved Shipbrokers” means, together, Golden Destiny, Clarksons PLC London, Braemar ACM Shipbroking London and Arrow Sale and Purchase London, Xxxx Xxxxxxxx – London, or any other first class independent firm of internationally known shipbrokers, nominated by the Lender and acceptable to the Borrower, and includes their respective successors in title and “Approved Shipbroker” means any of them;
“Availability Period” means the period starting on the date hereof and ending on:
(a) | the 31st day of July, 2017 or until such later date as the Lender may agree in writing; or |
(b) | such earlier date (if any): (i) on which the whole Commitment has been advanced by the Lender to the Borrower, or (ii) on which the Commitment is reduced to zero pursuant to Clauses 3.6 (Market disruption – Non Availability), 9.2 (Consequences of Default – Acceleration) or 12.1 (Unlawfulness) or any other Clause of this Agreement; |
“Bail-In Action” means the exercise of any Write-down and Conversion Powers;
“Bail-In Legislation” means:
(a) | in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and |
(b) | in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation; |
“Balloon Instalment” means the part of the Loan amounting to Two million three hundred thousand Dollars ($2,300,000);
“Banking Day” means any day on which banks and foreign exchange markets in New York, London, Piraeus and Athens and in each country or place in or at which an act is required to be done under this Agreement in accordance with the usual practice of the Lender, are open for the transaction of business of the nature contemplated in this Agreement;
“Beneficial Shareholder(s)” means the person or persons in writing disclosed to the Lender by an individual acceptable to the Lender as being the ultimate legal and beneficial owner or owners (either directly and/or through companies beneficially owned by such person or persons or members of his/her direct family and/or trusts or foundations of which such person or persons
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or members of his/her direct family are legal and beneficial owners) of 100% of the shares and the voting rights in each of the Borrower and the Seamar Corporate Guarantor;
“Borrowed Money” means Financial Indebtedness incurred in respect of (i) money borrowed or raised, (ii) any bond, note, loan stock, debenture or similar instrument, (iii) acceptance of documentary credit facilities, (iv) deferred payments for assets or services acquired, (v) rental payments under leases (whether in respect of land, machinery, equipment or otherwise) entered into primarily as a method of raising finance or of financing the acquisition of the asset leased, (vi) guarantees, bonds, stand-by letters of credit or other instruments issued in connection with the performance of contracts and (vii) guarantees or other assurances against financial loss in respect of Financial Indebtedness of any person falling within any of sub-paragraphs (i) to (vi) above;
“Borrower” means the Borrower as specified in the beginning of this Agreement;
“Capital Controls Approval” means the approval of the disbursement of the Commitment (or the relevant part thereof) by the competent authorities of Greece in accordance with the applicable regulations of the Bank of Greece and the legislation relating to capital controls and/or other economic measures imposed by the Government of Greece in force on the Drawdown Date;
“Charterparty” means any time or bareboat charterparty or contract of affreightment, agreement or related document in respect of the employment of the Vessel whether now existing or hereinafter entered into by the Borrower or any person, firm or company on its behalf for a period of twelve (12) months or more with a charterer, at a daily rate and on terms and conditions acceptable to the Lender (and shall include any addenda thereto) and includes the ABT Charterparty;
“Charterparty Assignment” means the assignment of any Charterparty, in favour of the Lender, in form and substance satisfactory to the Lender as the same may from time to time be amended and/or supplemented;
“CISADA” means the United States Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010 as it applies to non-US persons;
“Classification” means in respect of the Vessel, the classification referred to in the Mortgage with the Classification Society or such other Classification Society as the Lender shall, at the request of the Borrower, have agreed in writing (such agreement not to be unreasonably withheld) to be treated as the Classification Society for the purposes of the Finance Documents;
“Classification Society” means NKK and such other classification society which is a member of IACS and which the Lender shall, at the request of the Borrower, have agreed in writing (such agreement not to be unreasonably withheld) to be treated as the Classification Society for the purposes of the Finance Documents;
“Commitment” means the amount which the Lender has agreed to lend to the Borrower under Clause 2.1 (Commitment to Lend) as reduced pursuant to any relevant term of this Agreement;
“Commitment Letter” means the Commitment Letter dated 29th May, 2017 addressed by the Lender to the Borrower c/o the Approved Manager and shall include any amendments or addenda thereto;
“Compulsory Acquisition” means requisition for title or other compulsory acquisition, requisition, appropriation, expropriation, deprivation, forfeiture or confiscation for any reason of the Vessel
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by any Government Entity or other competent authority, whether de jure or de facto, but shall exclude requisition for use or hire not involving requisition of title;
“Corporate Guarantee” means the irrevocable and unconditional guarantee executed or (as the context may require) to be executed by each Corporate Guarantor as a security for the Outstanding Indebtedness and any and all other obligations of the Borrower under this Agreement and the Security Documents, in form and substance satisfactory to the Lender as the same may from time to time be amended and/or supplemented (together, the “Corporate Guarantees”);
“Corporate Guarantors” means each of (a) PANGAEA LOGISTICS SOLUTIONS LTD., a company lawfully incorporated and validly existing under the laws of Bermuda (the “Pangaea Corporate Guarantor”) and (b) SEAMAR MANAGEMENT S.A, a company lawfully incorporated and validly existing under the laws of the Republic of Panama (the “Seamar Corporate Guarantor”), and/or any other person nominated by the Borrower and acceptable to the Lender who gave or, as the context may require, shall or may give a Corporate Guarantee, and includes its successors in title and “Corporate Guarantor” means any of them, as the context may require;
“Default” means any Event of Default or any event or circumstance specified in Clause 9 (Events of Default) which would, with the giving of notice or lapse of time (or any combination thereof) constitute an Event of Default;
“Default Rate” means that rate of interest per annum which is determined in accordance with the provisions of Clause 3.4 (Default Interest);
“Delivery” means the delivery of the Vessel by the Seller and the acceptance of the Vessel by, the Borrower pursuant to the MOA;
“Delivery Date” means the date upon which the Delivery occurs;
“DOC” means a document of compliance issued to an Operator in accordance with rule 13 of the ISM Code;
“Dollars” (and the sign “$”) means the lawful currency for the time being of the United States of America;
“Drawdown Date” means the date, being a Banking Day, requested by the Borrower for the Loan to be made available, or (as the context requires) the date on which the Loan is actually made available;
“Drawdown Notice” means a notice substantially in the terms of Schedule 1 (Form of Drawdown Notice) or in any other form which the Lender approves;
“Earnings” means all moneys whatsoever which are now, or later become, payable to the Borrower and which arise out of the use or operation of the Vessel, including (but not limited to) all freight, hire and passage moneys, compensation payable to the Owner in the event of requisition of the Vessel for hire, remuneration for salvage and towage services, demurrage and detention moneys, contributions of any nature whatsoever in respect of general average, damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Vessel and any other earnings whatsoever due or to become due to the Owner in respect of the Vessel and all sums recoverable under the Insurances in respect of loss of Earnings and includes, if and whenever the Vessel is employed on terms whereby any and all such moneys as aforesaid are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing agreement which is attributable to the Vessel;
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“Encumbrance” means any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, security interest, title retention, arrest, seizure, garnishee order (whether nisi or absolute) or any other order or judgement having similar effect or other encumbrance of any kind securing or any right conferring a priority of payment in respect of any obligation of any person;
“Environmental Affiliate” means any agent or employee of the Borrower or any other Relevant Party or any person having a contractual relationship with the Borrower or any other Relevant Party in connection with any Relevant Ship or her operation or the carriage of cargo thereon;
“Environmental Approval” means any consent, authorisation, licence or approval of any governmental or public body or authorities or courts applicable to any Relevant Ship or her operation or the carriage of cargo thereon and/or passengers therein and/or provisions of goods and/or services on or from the Relevant Ship required under any Environmental Law;
“Environmental Claim” means any and all enforcement, clean up, removal or other governmental or regulatory actions or orders instituted or completed pursuant to any Environmental Law or any Environmental Approval together with claims made by any third party relating to damage, contribution, loss or injury, resulting from any actual or threatened emission, spill, release or discharge of a Material of Environmental Concern from any Relevant Ship;
“Environmental Incident” means (i) any release of Material of Environmental Concern from the Vessel, (ii) any incident in which Material of Environmental Concern is released from a vessel other than the Vessel and which involves collision between the Vessel and such other vessel or some other incident of navigation or operation, in either case, where the Vessel, the Borrower or the Approved Manager are actually or allegedly at fault or otherwise liable (in whole or in part) or (iii) any incident in which Material of Environmental Concern is released from a vessel other than the Vessel and where the Vessel is actually or potentially liable to be arrested as a result and/or where the Borrower or the Approved Manager are actually or allegedly at fault or otherwise liable;
“Environmental Laws” means all national, international and state laws, rules, regulations, treaties and conventions applicable to any Relevant Ship pertaining to the pollution or protection of human health or the environment including, without limitation, the carriage or Materials of Environmental Concern and actual or threatened emissions, spills, releases or discharges of Materials of Environmental Concern and actual or threatened emissions, spills, releases or discharges of Materials of Environmental Concern from any Relevant Ship;
“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor person) from time to time;
“Event of Default” means any event or circumstance set out in Clause 9.1 (Events) or described as such in any of the Finance Documents;
“Expenses” means the aggregate at any relevant time (to the extent that the same have not been received or recovered by the Lender) of:
(a) | all losses, liabilities, costs, charges, expenses, damages and outgoings of whatever nature, (including, without limitation, Taxes, repair costs, registration fees and insurance premiums, crew wages, repatriation expenses and seamen’s pension fund dues) suffered, incurred, charged to or paid or committed to be paid by the Lender in connection with |
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the exercise of the powers referred to in or granted by any of the Finance Documents or otherwise payable by the Borrower in accordance with the terms of any of the Finance Documents;
(b) | the expenses referred to in Clause 10.2 (Expenses); and |
(c) | interest on all such losses, liabilities, costs, charges, expenses, damages and outgoings from, in the case of Expenses referred to in sub-paragraph (b) above, the date on which such Expenses were demanded by the Lender from the Borrower and in all other cases, the date on which the same were suffered, incurred or paid by the Lender until the date of receipt or recovery thereof (whether before or after judgement) at the Default Rate (as conclusively certified by the Lender but always absent manifest error); |
“FATCA” means:
sections 1471 to 1474 of the US Internal Revenue Code of 1986 (the "Code") or any associated regulations or other associated official guidance;
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
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:
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 May 2014;
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 May 2015; or
in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 May 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;
“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 the Lender is not a FATCA Exempt Party, could be required to make a FATCA Deduction;
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“Final Maturity Date” means the fifth (5th) anniversary of the Drawdown Date;
“Finance Documents” means this Agreement, the Security Documents, the Insurance Letter and any other document designated as such by the Lender and the Borrower;
“Financial Indebtedness” means, in relation to a person (the “debtor”), a liability of the debtor:
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;
under any loan stock, bond, note or other security issued by the debtor;
under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
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;
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 Borrower, each period of one (1) year commencing on 1st January thereof in respect of which financial statements referred to in Clause 8.1(e) (Financial statements) are or ought to be prepared;
“Flag State” means the Republic of Panama or such other state or territory proposed in writing by the Borrower to the Lender and approved by the Lender (such approval not to be unreasonably withheld, especially when requested for trading purposes), as being the Flag State of the Vessel for the purposes of the Finance Documents;
“General Assignment” means the assignment of the Earnings, Insurances and Requisition Compensation collateral to the Mortgage executed or (as the context may require) to be executed by the Borrower in favour of the Lender, in form and substance satisfactory to the Lender as the same may from time to time be amended and/or supplemented;
“Government Entity” means and includes (whether having a distinct legal personality or not) any national or local government authority, board, commission, department, division, organ, instrumentality, court or agency and any association, organisation or institution of which any of the foregoing is a member or to whose jurisdiction any of the foregoing is subject or in whose activities any of the foregoing is a participant;
“Governmental Withholdings” means withholdings and any restrictions or conditions resulting in any charge whatsoever imposed, either now or hereafter, by any sovereign state or by any political sub-division or taxing authority of any sovereign state;
“Guarantees” means together the Corporate Guarantees and the Personal Guarantee and “Guarantee” means any of them, as the context may require;
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“Guarantors” means together the Corporate Guarantors and the Personal Guarantor and “Guarantor” means any of them, as the context may require;
“Insurance Letter” means a letter from the Borrower in the form of Schedule 2 (Form of Insurance Letter);
“Insurances” means, in relation to the Vessel, all policies and contracts of insurance (including, without limitation, all entries of the Vessel in a protection and indemnity, war risks or other mutual insurance association) which are from time to time in place or taken out or entered into by or for the benefit of its Owner (whether in the sole name of its Owner or in the joint names of its Owner and the Lender) in respect of the Vessel and its Earnings or otherwise howsoever in connection with the Vessel and all benefits of such policies and/or contracts (including all claims of whatsoever nature and return of premiums);
“Interest Payment Date” means in respect of the Loan or any part thereof in respect of which a separate Interest Period is fixed the last day of the relevant Interest Period and in case of any Interest Period longer than three (3) months the date(s) falling at successive three (3) monthly intervals during such longer Interest Period and the last day of such Interest Period;
“Interest Period” means in relation to the Loan or any part thereof, each period for the calculation of interest in respect of the Loan or such part ascertained in accordance with Clauses 3.2 (Selection of Interest Period) and 3.3 (Determination of Interest Periods);
“ISM Code” means in relation to its application to the Borrower, the Vessel and her operation:
(a) | “The International Management Code for the Safe Operation of Ships and for Pollution Prevention”, currently known or referred to as the “ISM Code”, adopted by the Assembly of the International Maritime Organisation by Resolution A. 741(18) on 4th November, 1993 and incorporated on 19th May, 1994 into chapter IX of the International Convention for the Safety of Life at Sea 1974 (SOLAS 1974); and |
(b) | all further resolutions, circulars, codes, guidelines, regulations and recommendations which are now or in the future issued by or on behalf of the International Maritime Organisation or any other entity with responsibility for implementing the ISM Code, including without limitation, the “Guidelines on implementation or administering of the International Safety Management (ISM) Code by Administrations” produced by the International Maritime Organisation pursuant to Resolution A. 788(19) adopted on 25th November, 1995; |
as the same may be amended, supplemented or replaced from time to time;
“ISM Code Documentation” includes:
(a) | the DOC and SMC issued by the Classification Society in all respects acceptable to the Lender in its absolute discretion pursuant to the ISM Code in relation to the Vessel within the period specified by the ISM Code; |
(b) | all other documents and data which are relevant to the ISM SMS and its implementation and verification which the Lender may require by request; and |
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(c) | any other documents which are prepared or which are otherwise relevant to establish and maintain the Vessel’s or the Borrower’s compliance with the ISM Code which the Lender may require by request; |
“ISM SMS” means the safety management system which is required to be developed, implemented and maintained under the ISM Code;
“ISPS Code” means the International Ship and Port Security Code of the International Maritime Organization and includes any amendments or extensions thereto and any regulation issued pursuant thereto;
“ISSC” means an International Ship Security Certificate issued in respect of the Vessel pursuant to the ISPS Code;
“Lender” means the Lender as specified in the beginning of this Agreement and includes its successors in title and transferees;
“Lending Office” means the office of the Lender appearing at the beginning of this Agreement or any other office of the Lender designated by the Lender as the Lending Office by notice to the Borrower;
“LIBOR” means, for an Interest Period:
(a) | the London interbank offered rate administered by ICE Benchmark Administration Limited (“ICE”) (or any other person which takes over the administration of that rate) for deposits in Dollars for a period equal to, or as near as possible equal to, the relevant Interest Period which appears on Reuters Page Libor 01 at or about 11.00 a.m. (London time) on the Quotation Day for that Interest Period (and, for the purposes of this Agreement, “Reuters Page Libor 01” means the display designated as the “Page LIBOR 01” on the Reuters Service or such other page as may replace Page LIBOR 01 on that service for the purpose of displaying rates comparable to that rate or on such other service as may be nominated by ICE as the information vendor for the purpose of displaying ICE Interest Settlement Rates for Dollars); or |
(b) | if on such date no rate is displayed, LIBOR for such period shall be the Lender's offered rate for deposits of Dollars in an amount approximately equal to the amount in relation to which LIBOR is to be determined for a period equivalent to such period to prime banks in the London Interbank Market at or about 11:00 a.m. (London time) on the Quotation Date for such period and for delivery on the first Banking Day of it, |
Provided, however, that if any such rate is below zero, LIBOR shall be deemed to be zero;
“Loan” means the aggregate principal amount borrowed by the Borrower in respect of the Commitment or (as the context may require) the principal amount thereof owing to the Lender under this Agreement at any relevant time;
“Major Casualty” means any casualty to the Vessel in respect whereof the claim or the aggregate of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds the Major Casualty Amount;
“Major Casualty Amount” means Three hundred thousand Dollars ($300,000) or the equivalent in any other currency;
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“Management Agreement” means the agreement made between the Borrower and the Approved Manager providing (inter alia) for the Approved Manager to manage the Vessel;
“Margin” means three point seven five percent (3.75%) per annum;
“Market Value” means the market value of the Vessel as determined in accordance with Clause 8.5(b) (Valuation of Vessel);
“Material of Environmental Concern” means and includes pollutants, contaminants, toxic substances, oil as defined in the United States Oil Pollution Act of 1990 and all hazardous substances as defined in the United States Comprehensive Environmental Response, Compensation and Liability Xxx 0000;
“MOA” means the Memorandum of Agreement dated 16th May, 2017 entered into between the Seller, as seller and the Borrower, as buyer, of such Vessel and includes any and all addenda thereto;
“month” means a period beginning in one calendar month and ending in the next calendar month on the day numerically corresponding to the day of the calendar month on which it started, provided that (i) if the period started on the last Banking Day in a calendar month or if there is no such numerically corresponding day, it shall end on the last Banking Day in such next calendar month and (ii) if such numerically corresponding day is not a Banking Day, the period shall end on the next following Banking Day in the same calendar month but if there is no such Banking Day it shall end on the preceding Banking Day and “months” and “monthly” shall be construed accordingly;
“Mortgage” means the first preferred ship mortgage on the Vessel to be executed by the Borrower in favour of the Lender in form and substance satisfactory to the Lender as the same may from time to time be amended and/or supplemented;
“Operating Expenses” means the expenses for crewing, victualing, insuring, maintenance (including dry-docking and special survey cost and expenses), spares, management and operation of the Vessel which are reasonably incurred for a vessel of the size and type of the Vessel;
“Operating Account” means the account to be opened and maintained with the Lending Office or with any other branch of the Lender or any other office of the Lender or with a bank or financial institution other than the Lender (whether associated with the Lender or not) which the Lender may designate to the Borrower at the discretion of the Lender pursuant to Clause 13.8 (Relocation of Operating Account) and shall include any sub-accounts or call accounts (whether in Dollars or any other currency) opened under the same designation or any revised designation or number from time to time notified by the Lender to the Borrower, to which (inter alia) all Earnings of the Vessel are to be paid in accordance with the provisions of this Agreement;
“Operator” means any person who is from time to time during the Security Period concerned in the operation of the Vessel and falls within the definition of “Company” set out in rule 1.1.2. of the ISM Code;
“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 by the Borrower to the Lender, whether actually or contingently under this Agreement and the other Finance Documents;
“Owner” means the Borrower;
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“Party” means a party to this Agreement;
"Performance Guarantee" means a performance guarantee to be executed by the Performance Guarantor in favour of the Borrower whereby the Performance Guarantor shall guarantee the fulfillment of all the obligations of the ABT Charterer under the ABT Charterparty in form and substance as the Lender may approve or require;
“Performance Guarantee Acknowledgement” means an Acknowledgement signed by the Performance Guarantor whereby the Performance Guarantor shall (inter alia) acknowledge the Performance Guarantee Assignment;
“Performance Guarantee Assignment” means the specific assignment of the Borrower’s rights, title and interest to and in any moneys whatsoever payable to the Borrower under the Performance Guarantee and all other rights and benefits whatsoever accruing to the Borrower under the Performance Guarantee to be executed by the Borrower in favour of the Lender and respective notice thereof to the Performance Guarantor in form and substance as the Lender may approve or require and shall include the Performance Guarantee Acknowledgement ;
“Performance Guarantor” means Pangaea Logistics Solutions Ltd. of 0xx Xxxxx, Xxx Xx Xxxxx Xxxxx, 00 Xxx Xx Xxxxx Xxxx, Xxxxxxxx XX00, Xxxxxxx;
“Permitted Encumbrance” means any Encumbrance in favour of the Lender created pursuant to the Security Documents and Permitted Liens;
“Permitted Lien” means any lien on the Vessel for master’s, officers’ or crew’s wages outstanding in the ordinary course of trading, any lien for salvage, any ship repairer’s or outfitter’s possessory lien for a sum not (except with the prior written consent of the Lender which consent will not be unreasonably withheld) exceeding the Major Casualty Amount, broker’s liens on policies of insurance in respect of the Vessel and encumbrances over the Vessel created by the Security Documents;
“Personal Guarantee” means a guarantee given or, as the context may require, to be given by the Personal Guarantor in form and substance satisfactory to the Lender as security for the Outstanding Indebtedness and any and all other obligations of the Borrower under this Agreement;
“Personal Guarantor” means the person nominated by the Borrower and acceptable to the Lender which gave or, as the context may require, shall or may give the Personal Guarantee;
“Prohibited Person” means any person (whether designated by name or by reason of being included in a class of persons) against whom Sanctions are directed;
“Purchase Price” in relation to the Vessel means the price payable by the Borrower to the Seller of the Vessel pursuant to the terms of the MOA i.e. $8,700,000 or such other sum as is determined in accordance with the terms and conditions of the MOA;
“Quotation Day” means, in respect of any period in respect of which LIBOR falls to be determined under this Agreement, the second Banking Day before the first day of such period;
“Receiving Bank” means Citibank N.A, 000, Xxxx Xxxxxx, Xxx Xxxx 00000, N.Y., U.S.A., or such other bank in New York as the Lender may notify to the Borrower;
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“Related Company” means any company or other entity which is a Subsidiary of the Borrower and the Corporate Guarantors and any Subsidiary of any such company or entity;
“Relevant Jurisdiction” means any jurisdiction in which or where any Security Party is incorporated, resident, domiciled, has a permanent establishment, carries on, or has a place of business or is otherwise effectively connected;
“Relevant Party” means the Borrower, the Corporate Guarantors and the Borrower's and each Corporate Guarantor’s Related Companies (if any);
“Relevant Ship” means the Vessel and any other vessel from time to time (whether before or after the date of this Agreement) owned, managed or crewed by, or chartered to, any Relevant Party;
“Registry” in relation to a Flag State means the offices of any registrar, commissioner or representative of such Flag State of the Vessel who is duly authorised and empowered to register such Vessel, the Owner’s title to such Vessel and the relevant Mortgage under the laws of such Flag State through such Registry;
“Regulatory Agency” means the Government Entity or other organization in the relevant Flag State which has been designated by the government of the relevant Flag State to implement and/or administer and/or enforce the provisions of the ISM Code;
“Repayment Date” means each of the dates specified in Clause 4.1 (Repayment) on which the Repayment Instalments shall be payable by the Borrower to the Lender;
“Repayment Instalment” means each instalment of the Loan which becomes due for repayment by the Borrower to the Lender on a Repayment Date pursuant to Clause 4.1 (Repayment);
“Requisition Compensation” means all sums of money or other compensation from time to time payable by reason of requisition of the Vessel otherwise than by requisition for hire;
“Sanctions” means any economic or trade sanctions, embargoes, freezing provisions, prohibitions or other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing):
(a) | imposed or enforced by law or regulation of the United States (including but not limited to, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State), and/or the United Kingdom and/or the Council of the European Union and/or the United Nations and/or its Security Council and/or the French Republic and/or the Flag State or other relevant sanctions authority; |
(b) | imposed by CISADA; or |
(c) | otherwise imposed by any law or regulation by which the relevant Security Party is bound or, as regards a regulation, compliance with which is reasonable in the ordinary course of business of the relevant Security Party and for which a waiver or suspension has not been obtained; |
“Security Documents” means:
this Agreement;
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the Account Pledge Agreement;
the Approved Manager’s Undertaking;
the General Assignment;
the Mortgage;
any Charterparty Assignment;
the Performance Guarantee Assignment;
the Guarantees; and
any other agreement or document that may have been or shall from time to time after the date of this Agreement be executed to guarantee and/or secure all or any part of the Outstanding Indebtedness and/or any and all other obligations of the Borrower to the Lender pursuant to this Agreement and any other moneys from time to time owing by the Borrower or the Guarantors 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 Lender under this Agreement under or in connection with this Agreement and/or any of the other documents referred to in this definition, as each such document may from time to time be amended and/or supplemented, and “Security Document” means any of them as the context may require;
“Security Parties” means the Borrower, the Guarantors and any other person (other than the Lender, the Approved Manager and any charterer) which is or may become a party to any of the Finance Documents and “Security Party” means any of them as the context may require;
“Security Period” means the period commencing on and including the date hereof and terminating on and including the date upon which the Loan together with all interest thereon and all other moneys payable to the Lender under Finance Documents have been paid in full to the Lender;
“Security Requirement” means the amount in Dollars (as certified by the Lender whose certificate shall, in the absence of manifest error, be conclusively binding on the Borrower) which is at any relevant time not less than one hundred and thirty percent (130%) of the Loan;
“Security Value” means the amount in Dollars (as certified by the Lender whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower) which, at any relevant time is the aggregate of (i) the Market Value of the Vessel as most recently determined in accordance with Clause 8.5(b) (Valuation of Vessel) and (ii) the market value of any additional security provided under Clause 8.5(a) (Security shortfall-Additional Security) and accepted by the Lender (if any);
“Seller” means the company appearing in the MOA as seller of the Vessel;
“SMC” means a safety management certificate issued in respect of the Vessel in accordance with rule 13 of the ISM Code;
“Subsidiary” of a person means any company or entity directly or indirectly controlled by such person;
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“Taxes” includes all present and future taxes, levies, imposts, duties, fees or charges of whatever nature together with interest thereon and penalties in respect thereof (except taxes concerning the Lender and/or imposed on the net income of the Lender) and “Taxation” shall be construed accordingly;
“Total Loss” means:
(a) | actual, constructive, compromised or arranged total loss of the Vessel; or |
(b) | the Compulsory Acquisition of the Vessel; or |
(c) | the condemnation, capture, seizure, confiscation, arrest or detention of the Vessel (other than where the same amounts to the Compulsory Acquisition of the Vessel) by any Government Entity, or by persons acting on behalf of any Government Entity or otherwise, unless the Vessel be released and restored to from such condemnation, capture, seizure, confiscation arrest or detention or within sixty (60) days after the occurrence thereof; and |
(d) | the hijacking, capture, seizure or confiscation of the Vessel arising as a result of a piracy or related incident unless the Vessel be released and restored to from such hijacking, capture, seizure or confiscation within one hundred eighty (180) days after the occurrence thereof; |
“Vessel” means the bulk carrier motor vessel “FUJISUKA” of approximately 30,057 gt and 18,207 nt, built in Japan the year 2005 by Tsuneishi Shipbuilding Co., Ltd., having IMO No. 9317092 and propelled by one oil internal combustion engine of 7,800 KW, currently registered under the Panamanian flag, purchased by the Borrower from the Seller pursuant to the terms and conditions of the MOA and which upon delivery to the Borrower shall be registered under the laws and flag of Flag State in the ownership of the Borrower and with the new name “BULK FREEDOM”, together with all her boats, engines, machinery tackle outfit spare gear fuel consumable and other stores belongings and appurtenances whether on board or ashore and whether now owned or hereafter acquired and all the additions, improvements and replacements in or on the above described vessel; and
“Write-down and Conversion Powers” means:
(a) | in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and |
(b) | in relation to any other applicable Bail-In Legislation: |
(i) | any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and |
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(ii) |
1.3 | Interpretation. In this Agreement: |
(a) | Clause headings and the table of contents are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement; |
(b) | subject to any specific provision of this Agreement or of any assignment and/or participation or syndication agreement of any nature whatsoever, reference to each of the parties hereto and to the other Finance Documents shall be deemed to be reference to and/or to include, as appropriate, their respective successors and permitted assigns; |
(c) | where the context so admits, words in the singular include the plural and vice versa; |
(d) | the words “including” and “in particular” shall not be construed as limiting the generality of any foregoing words; |
(e) | references to (or to any specified provisions of) a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as it may from time to time be amended, restated, novated or replaced, however fundamentally, whether before the date of this Agreement or otherwise; |
(f) | references to Clauses and Schedules are to be construed as references to the Clauses of, and the Schedules to, the relevant Finance Document and references to a Finance Document include all the terms of that Finance Document and any Schedules, Annexes or Appendices thereto, which form an integral part of same; |
(g) | references to the opinion of the Lender or a determination or acceptance by the Lender or to documents, acts, or persons acceptable or satisfactory to the Lender or the like shall be construed as reference to opinion, determination, acceptance or satisfaction of the Lender at the sole discretion of the Lender, acting reasonably, and such opinion, determination, acceptance or satisfaction of the Lender shall be conclusive and binding on the Borrower; |
(h) | references to a “regulation” include any present or future regulation, rule, directive, requirement, request or guideline (whether or not having the force of law) of any governmental or intergovernmental body, agency, authority, central bank or government department or any self regulatory or other national or supra-national authority or organisation and includes (without limitation) any Basel II Regulation or Basel III Regulation; |
(i) | references to any person include such person’s assignees and successors in title; and |
(j) |
1.4 | Construction of certain terms. In this Agreement: |
“asset” includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or other payment;
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“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;
“control” of an entity means:
(a) | the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: |
(i) | cast, or control the casting of, more than 50 per cent of the maximum number of votes that might be cast at a general meeting of that entity; or |
(ii) | appoint or remove all, or the majority, of the directors or other equivalent officers of that entity; or |
(iii) | give directions with respect to the operating and financial policies of that entity with which the directors or other equivalent officers of that entity are obliged to comply; and/or |
(b) | the holding beneficially of more than 50 per cent of the issued share capital of that entity (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over the share capital shall be disregarded in determining the beneficial ownership of such share capital); |
and “controlled” shall be construed accordingly;
“document” includes a deed; also a letter or fax;
“guarantee” means any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness and “guaranteed” shall be construed accordingly;
“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;
“liability” includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise;
“person” includes any individual, firm, company, corporation, unincorporated body of persons or any state, political sub-division or any agency thereof and local or municipal authority and any international organisation;
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“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;
“regulation” includes any regulation, rule, official directive, request or guideline whether or not having the force of law of any governmental, intergovernmental or supranational body, agency, department or regulatory, self‑regulatory or other authority or organisation;
“right” means any right, privilege, power or remedy, any proprietary interest in any asset and any other interest or remedy of any kind, whether actual or contingent, present or future, arising under contract or law, or in equity;
“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;
“liquidation”, “winding up”, “dissolution”, or “administration” of person or a “receiver” or “administrative receiver” or “administrator” in the context of insolvency proceedings or security enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous proceedings or any equivalent and analogous person or appointee (respectively) under the law of the jurisdiction in which such person is established or incorporated or any jurisdiction in which such person carries on business including (in respect of proceedings) the seeking or occurrences of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors.
1.5 |
1.6 |
1.7 | Finance Documents. Where any other Finance Document provides that Clauses 1.3 (Interpretation) and Clause 1.4 (Construction of certain terms), shall apply to that Finance Document, any other provision of this Agreement which, by its terms, purports to apply to all or any of the Finance Documents and/or any Security Party shall apply to that Finance Document as if set out in it but with all necessary changes. |
2. |
2.1 | Commitment to Lend. The Lender, relying upon (inter alia) each of the representations and warranties set forth in Clause 6 (Representations and warranties) and in each of the Security Documents, agrees to lend to the Borrower in one (1) Advance and upon and subject to the terms of this Agreement, the amount specified in Clause 1.1 (Amount and Purpose) and the Borrower |
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shall apply all amounts borrowed under the Commitment in accordance with Clause 1.1 (Amount and Purpose).
2.4 |
2.5 | Disbursement. Upon receipt of the Drawdown Notice complying with the terms of this Agreement the Lender shall, subject to the provisions of Clause 7 (Conditions precedent), on the date specified in the Drawdown Notice, make the Commitment available to the Borrower, and payment to the Borrower shall be made to the account which the Borrower specifies in the Drawdown Notice. |
Application of Proceeds. Without prejudice to the Borrower’s obligations under Clause 8.1(c) (Use of Loan proceeds), the Lender is not bound to monitor or verify the application of any amount borrowed pursuant to this Agreement and shall have no responsibility for the application of the proceeds of the Loan (or any part thereof) by the Borrower. |
2.7 |
2.8 | Evidence. It is hereby expressly agreed and admitted by the Borrower that abstracts or photocopies of the books of the Lender as well as statements of accounts or a certificate signed by an authorised officer of the Lender shall be conclusive binding and full evidence, save for manifest error, on the Borrower as to the existence and/or the amount of the at any time Outstanding Indebtedness, of any amount due under this Agreement, of the applicable interest rate or Default Rate or any other rate provided for or referred to in this Agreement, the Interest Period, the value of additional securities under Clause 8.5(a) (Security shortfall Additional Security), the payment or non payment of any amount. Nevertheless, enforcement procedures or any other court or out-of-court procedure can be commenced by the Lender on the basis of the above mentioned means of evidence including written statements or certificates of the Lender. |
2.9 | Cancellation. The Borrower may, cancel any undrawn part of the Commitment under this Agreement upon giving the Lender not less than five (5) Banking Days’ notice in writing to that effect, provided, that no Drawdown Notice has been given to the Lender under Clause 2.2 (Drawdown Notice and commitment to borrow) for the full amount of the Commitment or in respect of the portion thereof in respect of which cancellation is required by the Borrower. Any such notice of cancellation, once given, shall be irrevocable. Any amount cancelled may not be drawn. Notwithstanding any such cancellation pursuant to this Clause 2.9 the Borrower shall continue to be liable for any and all amounts due to the Lender under this Agreement including |
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2.11 | Disbursement of the Commitment to Seller’s bank. Notwithstanding the foregoing provisions of this Clause 2, in the event that the Commitment or any relevant part thereof (as the case may be) is required to be drawn down prior to the satisfaction of the requirements of Clause 4 and remitted to the Seller’s Bank in accordance with Clause 3 of the MOA (the “Seller’s Bank”), the Lender may in its absolute discretion agree to remit such amount to the Seller’s Bank prior to the satisfaction of the requirements of Clause 7 expressly subject to the following conditions: |
(a) | such amount is remitted to the Seller’s Bank to be held by it in an account in the Lender’s name (the “deposit account”) and to the order of the Lender; |
(i) | the principal amount (the “deposited amount”) of such funds will only be released to the Seller upon the Seller’s presentation to the Seller’s Bank of a copy of the protocol of delivery and acceptance for the Vessel in the form agreed between the Seller and the relevant Borrower and duly signed on behalf of the Seller and the Borrower and countersigned by the Lender’s representative; |
(ii) | the deposited amount so released may be used only for payment to the account of the Seller with the Seller’s Bank in satisfaction of the balance of the Purchase Price of the Vessel; and |
(iii) | in the event that none of the said amount so remitted is released in accordance with the Lender’s instructions or any part thereof is not so released, the Lender shall instruct the Seller’s Bank five (5) days from the expected Delivery Date, to pay the said amount and any earned interest to another account of the Lender and the Borrower shall be obliged to indemnify the Lender in accordance with Clause 15.1. Any amounts so remitted and returned pursuant to this Clause will be applied in or towards prepayment of the Loan pursuant to Clause 6.2. |
(b) | when either: |
(i) | the Commitment or any relevant part thereof (as the case may be) is disbursed (whether on the expected Delivery Date or thereafter) in accordance with Clause 2.11(a)(i) and (ii) or |
(ii) | the Lender withdraws the deposited amount under Clause 2.11(d), |
the Borrower shall forthwith upon demand by the Lender pay to the Lender such amounts that may be certified by the Lender as being the amount required to indemnify the Lender in respect of the cost to the Lender of funding the deposited amount from the date of payment thereof to the Seller’s Bank to the date of disbursement of the deposited amount
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to the Seller or the refund of the deposited amount to the Lender less the amount (if any) of the earned interest received by the Lender from the Seller’s Bank. For this purpose, the cost of the Lender funding the deposited amount shall be deemed to be interest at a rate equal to the aggregate of (i) the Margin and (ii) LIBOR for comparable deposits on a call (day to day) basis.
(c) the Lender shall have no liability to the Borrower if the Seller’s Bank fails to carry out any instructions given to it by the Lender to disburse or refund the deposited amount.
(d) if, upon being instructed to do so by the Lender, the Seller’s Bank fails either to apply the deposited amount in full in accordance with Clause 2.11(a)(ii) or to refund the deposited amount in full in accordance with Clause 2.11(a)(iv):
(i) | the Lender shall cease to be obliged to make the Commitment or relevant part thereof (as the case may be) available unless and until the Seller’s Bank carries out such instructions; |
(ii) | the Borrower shall indemnify the Lender on demand in respect to all losses certified by the Lender as suffered or incurred by the Lender as a consequence of the Seller’s Bank failure to carry the Lender’s instructions; and |
(iii) | without prejudice to the obligations of the Borrower so to indemnify the Lender on demand, the Lender shall in good faith take reasonable and proper steps diligently to seek recovery of the deposited amount from the Seller’s Bank (provided that prior to taking such action the Borrower shall have agreed to indemnify the Lender for all costs and expenses which may be incurred in seeking recovery of such amount, including, without limitation, all legal fees and disbursements reasonably and properly incurred) and if the Lender shall recover any part of the deposited amount (and provided that it has previously recovered full indemnification under Clause 2.11(d)(ii)) the Lender shall, so long as no Event of Default has occurred and is continuing, pay to the Borrower the amount so recovered after subtracting any tax suffered or incurred thereon by the Lender; and |
(e) |
3. |
3.1 | Normal Interest Rate. The Borrower shall pay interest on the Loan (or as the case may be, each portion thereof to which a different Interest Period relates) in respect of each Interest Period (or part thereof) on each Interest Payment Date. The interest rate for the calculation of interest shall |
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3.2 |
(b) |
3.3 |
(a) | the initial Interest Period applicable to the Loan will commence on the Drawdown Date and each subsequent Interest Period will commence forthwith upon the expiry of the preceding Interest Period; |
(b) | if any Interest Period would otherwise overrun one or more Repayment Dates, then, in the case of the last Repayment Date, such Interest Period shall end on such Repayment Date, and in the case of any other Repayment Date or Dates the Loan shall be divided into parts so that there is one part equal to the amount of the Repayment Instalment due on each Repayment Date falling during that Interest Period and having an Interest Period ending on the relevant Repayment Date and another part equal to the amount of the balance of the Loan having an Interest Period determined in accordance with Clause 3.2 (Selection of Interest Period) and the other provisions of this Clause 3.3 and the expression “Interest Period in respect of the Loan” when used in this Agreement refers to the Interest Period in respect of the balance of the Loan; and |
(c) | if the Borrower fails to specify the duration of an Interest Period in accordance with the provisions of Clause 3.2 (Selection of Interest Period) and this Clause 3.3, such Interest Period shall have a duration of three (3) months unless another period shall be agreed between the Lender and the Borrower provided, always, that such period (whether of three months or different duration) shall comply with this Clause 3.3. |
3.4 |
(b) |
3.6 |
Market Disruption Event: If and whenever, at any time prior to the commencement of any Interest Period, the Lender (in its discretion) shall have reasonably determined (which reasonable determination shall be conclusive in the absence of manifest error) that a Market Disruption Event has occurred in relation to the Loan for any such Interest Period, then the Lender shall forthwith give notice thereof (a “Determination Notice”) |
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to the Borrower stating the circumstances falling within Clause 3.6(c) (Meaning of “Market Disruption Event”) which have caused its notice to be given and the rate of interest on the Loan (or the relevant part thereof) for that Interest Period shall be the percentage rate per annum which is the sum of:
(i) | the Margin; and |
(ii) |
Suspension of drawdown: If the Determination Notice is given before the Commitment (or a part thereof) is advanced, the Lender's obligation to make the Commitment (or a part thereof) available shall be suspended while the circumstances referred to in the Determination notice continue. |
(c) | Meaning of “Market Disruption Event”: In this Agreement “Market Disruption Event” means: |
(i) | at or about noon on the Quotation Day for the relevant Interest Period LIBOR is not available; and/or |
(ii) | before close of business in London on the Quotation Day for the relevant Interest Period, the Lender determines (in its sole discretion) that the cost to it of obtaining matching deposits in the London Interbank Market to fund the Loan (or the relevant part thereof) for such Interest Period would be in excess of the LIBOR for such Interest Period; and |
(iii) |
(d) |
(i) | If a Market Disruption Event occurs and the Lender or the Borrower so requires, the Lender and the Borrower shall enter into negotiations (for a period of not more than seven (7) Banking Days (the “Negotiation Period”)) after the giving of the relevant Determination Notice with a view to agreeing a substitute basis for determining the rate of interest. |
(ii) |
(e) | Alternative basis of interest in absence of agreement: If the Lender and the Borrower will not enter into negotiations as provided in Clause 3.6(d)(i) or 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 Lender shall set the following Interest Period and an interest rate representing the cost of funding of the Lender in Dollars of the Loan (or the relevant part thereof) plus the Margin for such |
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(h) | Application of prepayment: The provisions of Clause 4 (Repayment-Prepayment) shall apply in relation to the prepayment made hereunder. |
4.1 | Repayment. The Borrower shall and it is expressly undertaken by the Borrower to repay the Loan by: (a) twenty (20) consecutive quarterly Repayment Instalments (the “Repayment Instalments”) to be repaid on each of the Repayment Dates so that the first be repaid on the date falling three (3) months after the Drawdown Date and each of the subsequent ones consecutively falling due for payment on each of the dates falling three (3) months after the immediately preceding Repayment Date with the last (the 20th) of such Repayment Instalments falling due for payment on the Final Maturity Date and (b) the Balloon Instalment falling due for payment on the Final Maturity Date; subject to the provisions of this Agreement the amount of each Repayment Instalment shall be as follows; |
(a) | 1st to 8th (both incl.) in the amount of Dollars One hundred seventy five thousand ($175,000) each; and |
(b) | 9th to 20th (both incl.) in the amount of Dollars One hundred fifty thousand ($150,000) each; |
provided, that (a) if the last Repayment Date would otherwise fall after the Final Maturity Date, the last Repayment Date shall be the Final Maturity Date, (b) in the event that the Commitment is not drawn down in full by the last day of the Availability Period, the amount of each of the Repayment Instalments and the Balloon Instalment shall be proportionally reduced, (c) there shall be no Repayment Dates after the Final Maturity Date, (d) on the Final Maturity Date the Borrower shall also pay to the Lender any and all other moneys then due and payable under this Agreement and the other Finance Documents and (e) if any of the Repayment Instalments shall become due on a day which is not a Banking Day, the due date therefor
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4.2 | Voluntary Prepayment. The Borrower shall have the right, upon giving the Lender not less than five (5) Banking Days’ notice in writing, to prepay, without penalty or prepayment fee, part or all of the Loan, in each case together with all unpaid interest accrued thereon and all other sums of money whatsoever due and owing from the Borrower to the Lender hereunder or pursuant to the other Finance Documents and all interest accrued thereon, provided, that: |
(a) | the giving of such notice by the Borrower will irrevocably commit the Borrower to prepay such amount as stated in such notice; |
(b) | if the Borrower shall request consent to make such prepayment on a day other than the last day of an Interest Period the Borrower will pay, in addition to the amount to be prepaid, any such sum as may be payable to the Lender pursuant to Clause 10.1 (Indemnity); |
(c) | each such prepayment shall be in an amount of $100,000 or a whole multiple thereof or the balance of the Loan and will be applied by the Lender in or towards prepayment of the Balloon Instalment and then the remaining Repayment Instalments in the inverse chronological order of maturity; |
(d) | every notice of prepayment shall be effective only on actual receipt (including by fax) by the Lender, shall be irrevocable and shall oblige the Borrower to make such prepayment on the date specified; |
(e) | the Borrower has provided evidence satisfactory to the Lender that any consent required by the Borrower or any Security Party in connection with the prepayment has been obtained and remains in force, and that any regulation relevant to this Agreement which affects the Borrower or any Security Party has been complied with; |
(f) | no amount prepaid may be re-borrowed; and |
(g) | the Borrower may not prepay the Loan or any part thereof, save as expressly provided in this Agreement or as otherwise agreed by the Lender. |
4.3 | Compulsory Prepayment in case of Total Loss or sale of the Vessel |
(a) | Total Loss: On the Vessel becoming a Total Loss or suffering damage or being involved in an incident which may, in the reasonable opinion of the Lender, result in the Vessel being subsequently determined to be a Total Loss: |
(i) | prior to the advancing of the Commitment, the obligation of the Lender to advance the Commitment shall immediately cease and the Commitment shall be reduced to zero; or |
(ii) | in case the Commitment has been already advanced, the Borrower shall prepay the Outstanding Indebtedness the latest on the date falling one hundred and eighty (180) days after the occurrence of such Total Loss or the date on which the relevant Vessel suffered damage or the incident which, in the reasonable |
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opinion of the Lender, may result in the Vessel being subsequently determined to be a Total Loss occurred or, if earlier, on the date upon which the insurance proceeds in respect of such Total Loss are or Requisition Compensation is received by the Borrower (or the Lender pursuant to the Security Documents).
(iii) | For the purpose of this Agreement a Total Loss shall be deemed to have occurred: |
a) | in the case of an actual total loss of the Vessel, at the actual date and time the Vessel was lost but in the event of the date of the loss being unknown then the actual total loss shall be deemed to have occurred on the date falling fifteen (15) days after the date on which the Vessel was last reported; |
b) | in the case of a constructive total loss of the Vessel, at the date and time notice of abandonment (the “NOA date”) of the Vessel is given to the insurers of the Vessel for the time being (provided a claim for such Total Loss is admitted by such insurers) or, if such insurers do not admit such a claim on the earlier of (aa) the date when either the total loss is subsequently admitted by the insurers, or (bb) a total loss is subsequently adjudged by a competent court of law or arbitration tribunal to have occurred and (cc) the date falling one hundred and eighty (180) days after the NOA date, or, in the event that such notice of abandonment is not given by the Owner to the insurers of the Vessel, at the date and time on which occurred the incident which may result, in the reasonable opinion of the Lender, in the Vessel being subsequently determined to be a Total Loss; |
c) | in the case of a compromised or arranged total loss of the Vessel, on the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the then insurers of the Vessel; |
d) | in the case of Compulsory Acquisition of the Vessel, on the date upon which the relevant requisition of title or other compulsory acquisition occurs excluding a requisition for hire; |
e) | in the case of, condemnation, capture, seizure, confiscation, arrest, or detention of the Vessel (other than where the same amounts to Compulsory Acquisition of the Vessel) by any Government Entity, or by persons acting on behalf of any Government Entity or otherwise, which deprives the Owner of the use of the Vessel for more than sixty (60) days (excluding instances of requisition for hire), upon the expiry of the period of sixty (60) days after the date upon which the relevant, condemnation, capture, seizure or confiscation, arrest or detention occurred; and |
f) | in the case of hijacking, capture, seizure or confiscation of the Vessel arising as a result of a piracy or related incident unless the Vessel be released and restored to the Owner from such hijacking, capture, seizure |
28 (J18-185622/C)
or confiscation within one hundred eighty (180) days after the occurrence thereof.
(b) |
4.4 | Amounts payable on prepayment. Any prepayment of all or part of the Loan under this Agreement shall be made together with (a) accrued interest on the amount to be prepaid to the date of such prepayment (calculated, in the case of a prepayment pursuant to Clause 3.6 (Market disruption – Non Availability) at a rate equal to the aggregate of the Margin and the cost to the Lender of funding the Loan), (b) any additional amount payable under Clause 5.3 (Gross Up) and (c) all other sums payable by the Borrower to the Lender under this Agreement or any of the other Finance Documents including, without limitation, any amounts payable under Clause 10 (Indemnities - Expenses – Fees). |
5. |
5.1 | Payments – No set-off or counterclaims |
(a) | The Borrower acknowledges that in performing its obligations under this Agreement, the Lender will be incurring liabilities to third parties in relation to the funding of amounts to the Borrower, such liabilities matching the liabilities of the Borrower to the Lender and that it is reasonable for the Lender to be entitled to receive payments from the Borrower gross on the due date in order that the Lender is put in a position to perform its matching obligations to the relevant third parties. Accordingly, all payments to be made by the Borrower under this Agreement and/or any of the other Finance Documents shall be made in full, without any set-off or counterclaim whatsoever and, subject as provided in Clause 5.3 (Gross Up), free and clear of any deductions or withholdings or Governmental Withholdings whatsoever, as follows: |
(i) | in Dollars, not later than 10:00 a.m. (London time) on the Banking Day (in Piraeus, Athens, London and New York City) on which the relevant payment is due under the terms of this Agreement; and |
(ii) | to the Receiving Bank for the account of the Lender, reference: “BULK FREEDOM CORP. - LOAN AGREEMENT DATED: 14TH JUNE, 2017”, provided, however, that the Lender shall have the right to change the place of account for payment, upon ten (10) Banking Days’ prior written notice to the Borrower. |
(b) |
Payments on Banking Days. All payments due shall be made on a Banking Day. If the due date for payment falls on a day which is not a Banking Day, that payment due shall be made |
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5.3 |
5.4 |
5.5 |
6. |
6.1 |
Due Corporate Authority: each of the Borrower and the other corporate Security Parties has power to execute, deliver and perform its obligations under the Finance Documents |
30 (J18-185622/C)
to which it is a party and to borrow the Commitment and each of the corporate Security Parties has power to execute and deliver and perform its obligations under the Finance Documents to which it is or is to be a party; all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same and no limitation on the powers of the Borrower to borrow will be exceeded as a result of borrowing the Loan;
(c) | Litigation: no litigation or arbitration, tax claim or administrative proceeding (including action relating to any alleged or actual breach of the ISM Code and the ISPS Code) involving a potential liability of the Borrower or any other Security Party is current or pending or (to its or its officers’ knowledge) threatened against the Borrower or such other Security Party, which, if adversely determined, would have a material adverse effect on the business, position, profitability, assets or the financial condition of any of them; |
(d) |
(e) |
(f) |
(g) | Shipping Company: each of the Borrower and the Approved Manager is a shipping company involved in the owning or, as the case may be, managing of ships engaged in international voyages and earning profits in free foreign currency; |
(h) | Licences/Authorisation: every consent, authorisation, license or approval of, or registration with or declaration to, governmental or public bodies or authorities or courts required by any Security Party to authorise, or required by any Security Party in connection with, the execution, delivery, validity, enforceability or admissibility in evidence of each of the Finance Documents or the performance by each Security Party of its obligations under the Finance Documents to which such Security Party is or is to |
31 (J18-185622/C)
(i) |
(l) |
6.2 |
(b) |
(c) | No Default: no Default has occurred and is continuing; |
32 (J18-185622/C)
(d) |
(e) |
(f) |
(g) | MOA valid: the copy of the MOA to be delivered to the Lender shall be a true and complete copy of such document constituting valid and binding obligations of the parties thereto enforceable in accordance with its terms and no amendments thereto or variations thereof shall have been (or will be) agreed nor shall any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable; |
(h) | No rebates: there will be no commissions, rebates premiums or other payments by or to or on account of the Borrower, any other Security Party or, to the knowledge of the Borrower, any other person in connection with the MOA other than as shall be disclosed to the Lender by the Borrower in writing; |
(g) | Ownership/Flag/Seaworthiness/Class/Insurance of the Vessel: the Vessel on the Delivery Date will be: |
(i) | in the absolute and free from Encumbrances (other than in favour of the Lender) ownership of the Borrower who is and will on and after the Delivery Date be the sole legal and beneficial owner of the Vessel; |
(ii) | registered in the name of the Borrower through the Registry under the laws and flag of the Flag State; |
(iii) | operationally seaworthy and in every way fit for service; |
(iv) | classed with the Classification Society and such class will be free of any overdue requirements and recommendations of the Classification Society affecting class; |
(v) | insured in accordance with the provisions of this Agreement and the Mortgage; |
(vi) | managed by the Approved Manager; and |
(vii) |
(h) | No Charter: unless otherwise permitted in writing by the Lender, the Vessel will not on or before the Drawdown Date be subject to any charter or contract (other than the ABT Charterparty) nor to any agreement to enter into any charter or contract which, if entered into after the Drawdown Date would have required the consent of the Lender under any |
33 (J18-185622/C)
(i) |
(j) | Compliance with Environmental Laws and Approvals: except as may already have been disclosed by the Borrower in writing to, and acknowledged in writing by the Lender: |
(i) | the Borrower and its Related Companies have complied with the provisions of all Environmental Laws; |
(ii) | the Borrower and its Related Companies have obtained all Environmental Approvals and are in compliance with all such Environmental Approvals; and |
(iii) |
No Environmental Claims: except as may already have been disclosed by the Borrower in writing to, and acknowledged in writing by, the Lender: |
(i) | there is no Environmental Claim pending or, to the best of the Borrower’s knowledge and belief, threatened against the Borrower or the Vessel or the Borrower’s Related Companies or any other Relevant Ship; and |
(ii) | there has been no emission, spill, release or discharge of a Material of Environmental Concern from the Vessel or any other Relevant Ship or any vessel owned by, managed or crewed by or chartered to the Borrower to the best of Borrower’s knowledge and belief which could give rise to an Environmental Claim; |
(l) | Copies true and complete: the copies of the MOA, the Management Agreement the ABT Charterparty and the Performance Guarantee delivered or to be delivered to the Lender pursuant to Clause 7.2 (Conditions precedent to the making of the Commitment) is, or will when delivered be, true and complete copies of such documents; such documents will, when delivered, constitute valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and there will have been no amendments or variations thereof or defaults thereunder; |
(m) | Application made for DOC and SMC: in relation to the Vessel, the Operator has applied to the appropriate Regulatory Agency for a DOC for itself and an SMC in respect of the Vessel to be issued pursuant to the ISM Code within any time limit required or recommended by such Regulatory Agency and that neither the Borrower nor any Operator is aware of any reason why such application may be refused; |
34 (J18-185622/C)
(n) |
(o) |
(p) |
(q) |
(r) | Sanctions: |
(i) | none of the Security Parties is a Prohibited Person nor is owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person and the Borrower does not own or control a Prohibited Person; and |
(ii) |
(s) |
(t) | Compliance with certain undertakings: At the date of this Agreement, the Borrower is in compliance with Clauses 8.2(a) (Negative pledge), 8.2(g) (No other obligations) and 11.2 (Maintenance of Securities). |
6.3 | Acting for its own account - Money laundering. The Borrower represents and warrants and confirms that it is the beneficiary of the Loan made or to be made available to it and it will promptly inform the Lender by written notice if it is not, or ceases to be, the beneficiary and notify the Lender in writing of the name and the address of the new beneficiary/beneficiaries; the Borrower is aware that under applicable money laundering provisions, it has an obligation to state for whose account the Loan is obtained; the Borrower confirms that, by entering into this Agreement and the other Finance Documents, it is acting on its own behalf and for its own account and it is obtaining the Loan for its own account. In relation to the borrowing by the Borrower of the Loan, the performance and discharge of its obligations and liabilities under this Agreement or any of the other Finance Documents and the transactions and other arrangements effected or contemplated by this Agreement or any of the Documents to which the Borrower is a party, it is acting for its own account and that the foregoing will not involve or lead to a contravention of any law, official requirement or other regulatory measure or procedure which has been implemented to combat “money laundering” (as defined in Article 1 of the Directive (91/308/EEC) of the Council of the European Community). |
6.5 | Repetition of Representations and Warranties. The representations and warranties in this Clause 6 (except in relation to the representations and warranties in Clause 6.2 (Initial representations and warranties)) shall be deemed to be repeated by the Borrower on the Drawdown Date and on each Interest Payment Date throughout the Security Period as if made with reference to the facts and circumstances existing on each such day. |
7. |
(b) |
(c) | Shareholding: a recent certificate as to the shareholding of the Borrower issued by an appropriate authority or, at the discretion of the Lender, signed by the secretary or a director of the Borrower as the case may be, stating respectively the full names and addresses of the person or persons beneficially entitled as shareholders/ stockholders of the entire issued and outstanding shares/ stock of each of them; |
(d) |
(e) |
(f) |
(g) | Fees: evidence that the fees referred to in Clause 10.10 (Fees) have been paid in full; |
(h) | DOC: a copy of the DOC applicable to Approved Manager certified as true and in effect; |
(i) |
(j) | MOA-Management Agreement-Charterparty: a copy of each of the following documents certified as true and complete by the legal counsel of the Borrower: |
(i) | The MOA; |
(ii) | the Management Agreement evidencing that the Vessel is managed by the Approved Manager on terms acceptable to the Lender; and |
(iii) |
(k) |
(a) | Drawdown Notice: the Drawdown Notice duly executed, issued and delivered to the Lender as provided in Clause 2.2 (Drawdown Notice and commitment to borrow); |
(b) | Security Documents: each of the Security Documents duly executed and where appropriate duly registered with the Registry or any other competent authority (as required); |
(c) |
(d) | Insurances: evidence in form and substance satisfactory to the Lender that each Vessel has been or will on the Delivery Date be insured in accordance with the insurance requirements provided for in this Agreement and the other Security Documents (in amounts not less than such sum which is at least equal to the greater of (i) the full Market Value of the Vessel and (ii) 125% of the amount of the Loan) together with an opinion from insurance consultants (appointed by the Lender at the Borrower’s expense) as to |
37 (J18-185622/C)
Insurers’ confirmations: all necessary confirmations from the insurers of the Vessel that they will issue letters of undertaking and endorse notice of assignment and loss payable clauses on the Insurances, in form and substance satisfactory to the Lender in its sole discretion (and - in the event of fleet cover - accompanied by waivers for liens for unpaid premium of other vessels managed by the Approved Manager and which are not subject to any mortgage in favour of the Lender) and (if required by the Lender) an opinion signed by an independent firm of marine insurance brokers appointed and/or approved by the Lender at the expenses of the Borrower confirming the adequacy of the Insurances maintained on the Vessel; |
(f) |
Access to class records: due authorisation from the Borrower in form and substance satisfactory to the Lender authorising the Lender to have access and/or obtain any copies of class records or other information at its discretion from the Classification Society of the Vessel, provided however, that the Lender shall not exercise such right unless and until an Event of Default has occurred and is continuing; |
Notices of assignment: duly executed notices of assignment in the form prescribed by the Security Documents; |
(i) |
Performance Guarantee: the Performance Guarantee duly executed by the Performance Guarantor and evidence of the authority of the signatory thereof; |
(k) |
(l) | Seller’s documents: duly certified copies of corporate documentation of the Seller - comparable at the discretion of the Lender to that provided in Clause 7.1 - proving the due incorporation and existence of the Seller and the due authorisation of the sale of the Vessel and the execution of all documents required in connection therewith; |
(m) |
(n) | Payment of Purchase Price: evidence that the initial deposit in respect of the Vessel and all other sums of money (other than the Commitment or any part thereof) required to be paid by the Borrower to the Seller pursuant to the MOA have been duly paid; |
38 (J18-185622/C)
(o) | Mortgage registration; evidence that the Mortgage has been or immediately after the drawdown or release of the Loan will be registered against the Vessel through the Registry under the laws and flag of the Flag State; |
(p) |
(q) |
(r) |
(u) | ISPS Code compliance: |
(i) | evidence satisfactory to the Lender that the Vessel is subject to a ship security plan which complies with the ISPS Code (such as proof that a security plan has been submitted to the recognized organisation for approval); and |
(ii) |
(v) | Valuation: charter free valuation of the Vessel, at the Borrower’s expense, as at a date determined by the Lender but in any event prior to the expected Drawdown Date, made on the basis and in the manner specified in Clause 8.5(b) (Valuation of Vessel) and showing the amount of the Commitment not more than 65% of the a Purchase Price of the Vessel; |
(w) | Insurance Letter: the Insurance Letter duly executed; |
(x) | Acknowledgement of Receipt: a receipt in writing in form and substance satisfactory to the Lender including an acknowledgement and admission of the Borrower and/or any |
39 (J18-185622/C)
other Security Party to the effect that the Commitment or relevant part thereof (as the case may be) was drawn by the Borrower and a declaration by the Borrower that all conditions precedent have been fulfilled or waived by the Lender as provided in this Agreement, that there is no Event of Default and that all the representations and warranties are true and correct;
(z) | Flag State opinion: draft opinion of legal advisers to the Lender on matters of the laws of the Flag State of the Vessel; |
(aa) |
(bb) | ABT Charterparty: evidence satisfactory to the Lender that the Vessel, with effect from not later than the Drawdown Date, is time-chartered employed upon delivery under the ABT Charterparty; |
(cc) | Confirmation from agents: confirmation from any agents nominated in this Agreement and elsewhere in the other Security Documents for the acceptance of any notice or service of process, that they consent to such nomination; and |
(dd) | Capital controls: the Capital Controls Approval has been obtained. |
7.3 | No change of circumstances. The obligation of the Lender to advance the Commitment or any part thereof is subject to the further condition that at the time of the giving of the Drawdown Notice and on the Drawdown Date: |
(a) | Representations and warranties: the representations and warranties set out in Clause 6 (Representations and warranties) and in each of the other Finance Documents are true and correct on and as of each such time as if each was made with respect to the facts and circumstances existing at such time; |
(b) |
(c) |
(d) | No Market Disruption Event: none of the circumstances contemplated by Clause 3.6 (Market disruption – Non Availability) has occurred and is continuing. |
40 (J18-185622/C)
7.4 | Know your customer and money laundering compliance. The obligation of the Lender to advance the Commitment or any part thereof is subject to the further condition that the Lender, prior to or simultaneously with the drawdown, shall have received, to the extent required by any change in applicable law and regulation or any changes in the Lender’s own internal guidelines since the date on which the applicable documents and evidence were delivered to the Lender pursuant to Clause 8.8 (Know your customer and money laundering compliance), such further documents and evidence as the Lender shall require to identify the Borrower and the other Security Parties and any other persons involved or affected by the transaction(s) contemplated by this Agreement. |
7.5 |
7.6 | Waiver of conditions precedent. The conditions specified in this Clause 7 are inserted solely for the benefit of the Lender and may be waived by the Lender in whole or in part and with or without conditions. Without prejudice to any of the other provisions of this Agreement, in the event that the Lender, in its sole and absolute discretion, makes the Commitment available to the Borrower prior to the satisfaction of all or any of the conditions referred to in Clauses 7.1 (Conditions precedent to the execution of this Agreement), 7.2 (Conditions precedent to the making of the Commitment) and 7.3 (No change of circumstances), the Borrower hereby covenants and undertakes to satisfy or procure the satisfaction of such condition or conditions by no later than fifteen (15) days after the Drawdown Date or within such longer period as the Lender may, in its sole and absolute discretion, agree to or specify. |
COVENANTS |
8.1 |
Consents and licenses: without prejudice to Clause 6 (Representations and warranties) Clause and 7 (Conditions precedent), obtain or cause to be obtained, maintain in full force and effect and comply in all material respects with the conditions and restrictions (if any) imposed in, or in connection with, every consent, authorisation, license or approval of governmental or public bodies or authorities or courts and do or cause to be done, all other acts and things which may from time to time be necessary or desirable under applicable law for the continued due performance of all the obligations of the Security Parties under each of the Finance Documents; |
(c) | Use of Loan proceeds: use the Loan exclusively for the purposes specified in Clause 1.1 (Amount and Purpose); |
(d) |
(e) | Financial statements: furnish the Lender with audited annual financial statements of the Pangaea Corporate Guarantor, which to include the Borrower on a consolidated basis, by auditors acceptable to the Lender, prepared in accordance with internationally accepted accounting principles and practices consistently applied in respect of each Financial Year as soon as practicable but not later than 180 days after the end of the Financial Year to which they relate, commencing with Financial Year ending on 31st December, 2017; |
(f) |
Financial Information: provide the Lender from time to time as the Lender may reasonably request with information on the financial conditions, actual and projected for the following 12 month period, cash flow position, commitments and operations of the Borrower including cash flow analysis and voyage accounts of the Vessel with a breakdown of income and running expenses showing net trading profit, trade payables and trade receivables, such financial details to be certified by an authorized signatory of the Borrower as to their correctness; |
(h) | Information on the employment of the Vessel: provide the Lender from time to time as the Lender may request with information on the employment of the Vessel, as well as on the terms and conditions of any charterparty, contract of affreightment, agreement or related document in respect of the employment of the Vessel, such information to be certified by one of the directors of the Borrower as to their correctness; |
(i) |
(j) |
(k) | Obligations under Finance Documents: duly and punctually perform each of the obligations expressed to be assumed by it under the Finance Documents; |
42 (J18-185622/C)
(l) |
Compliance with ISM Code: procure that the Approved Manager and any Operator: |
(i) | will comply with and ensure that the Vessel and any Operator by no later than the Drawdown Date complies with the requirements of the ISM Code, including (but not limited to) the maintenance and renewal of valid certificates pursuant thereto throughout the Security Period; |
(ii) | immediately inform the Lender if there is any threatened or actual withdrawal of the Borrower’s, the Approved Manager’s or an Operator’s DOC or the SMC in respect of the Vessel; and |
(iii) |
(o) | Compliance with ISPS Code: procure that the Approved Manager or any Operator will: |
(i) | maintain at all times a valid and current ISSC in respect of the Vessel; |
(ii) | immediately notify the Lender in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC in respect of the Vessel; and |
(iii) | procure that the Vessel will comply at all times with the ISPS Code; |
(q) |
(i) | at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Encumbrances which it purports to create; and |
43 (J18-185622/C)
(ii) |
(s) | Registered Office: maintain its registered office at the address referred to in the recital; and will not establish, or do anything as a result of which it would be deemed to have, a place of business in the United Kingdom or the United States of America; |
(t) |
(u) |
Negative undertakings. The Borrower hereby undertakes with the Lender that, from the date of this Agreement and so long as any moneys are owing under the Finance Documents and until the full and complete payment and discharge of the Outstanding Indebtedness, it will not, without the prior written consent of the Lender: |
(a) | Negative pledge: |
(i) | permit any Encumbrance (other than a Permitted Encumbrance) to subsist, arise or be created or extended over all or any part of its present or future undertakings, assets, rights or revenues to secure or prefer any present or future Financial Indebtedness or other liability or obligation of the Borrower or any other person; and |
(ii) |
(b) | No further Financial Indebtedness: incur no further Financial Indebtedness nor authorise or accept any capital commitments (other than that normally associated with the day to day operations, trading, maintenance and repair of the Vessel) nor enter into any agreement for payment on deferred terms or hire agreement other in the ordinary course of Vessel’s operations; |
(c) | No merger: merge or consolidate with any other person; |
44 (J18-185622/C)
(d) | No disposals: |
(i) | sell, transfer, abandon, lend, lease or otherwise dispose of or cease to exercise direct control over any part of its present or future undertaking, assets, rights or revenues (otherwise than by transfers, sales or disposals for full consideration in the ordinary course of operations and trading) whether by one or a series of transactions related or not; and |
(ii) | transfer, lease or otherwise dispose of any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation; |
(e) | No other business: undertake any type of business other than the ownership and operation of the Vessel and the chartering of the Vessel to third parties; |
(f) | No acquisitions: acquire any further assets other than the Vessel and rights arising under contracts entered into by or on behalf of the Borrower in the ordinary course of its business of owning, operating, maintaining, repairing, trading and chartering the Vessel; |
(g) | No other obligations: incur any liability or obligations except liabilities and obligations arising under the Finance Documents or contracts entered into in the ordinary course of its business of owning, operating, maintaining, repairing and chartering the Vessel (and for the purposes of this Clause 8.2(g) (No other obligations) fees to be paid pursuant to the Management Agreement in respect of the Vessel shall be considered as permitted obligations under the Finance Documents); |
(h) | No borrowing: incur any Borrowed Money except for Borrowed Money pursuant to the Finance Documents or in the ordinary course of its business of owning, operating, maintaining, repairing trading and chartering the Vessel; |
(i) |
(j) |
(k) | No guarantees: issue any guarantees or indemnities or otherwise become directly or contingently liable for the obligations of any person, firm, or corporation except pursuant to the Finance Documents and except for, in the case of the Borrower, guarantees or indemnities from time to time required in the ordinary course of business or by any protection and indemnity or war risks association with which the Vessel is entered, guarantees required to procure the release of the Vessel from any arrest, detention, attachment or levy or guarantees or undertakings required for the salvage of the Vessel; |
45 (J18-185622/C)
(l) |
(m) |
(o) | No Subsidiaries: form or acquire any Subsidiaries. |
(p) | Maintenance of business structure: change the nature, organisation and conduct of the business of the Borrower and the Seamar Corporate Guarantor as owner of the Vessel or as manager of vessels, as the case may be, or carry on any business other than the business carried on at the date of this Agreement; |
(q) | Maintenance of legal structure: ensure that none of the documents defining the constitution of the Borrower and the Corporate Guarantors shall be materially (in the Lender’s opinion) altered in any manner whatsoever; |
(r) |
(s) |
(t) |
8.3 | Undertakings concerning the Vessel. The Borrower hereby undertakes with the Lender that, from the date of this Agreement and so long as any moneys are owing under the Finance |
46 (J18-185622/C)
Documents and until the full and complete payment and discharge of the Outstanding Indebtedness, it will:
(a) | Chartering: not without the prior written consent of the Lender (and then only subject to such conditions as the Lender may impose) let or agree to let the Vessel: |
(i) | on demise charter for any period; or |
(ii) | by any time or consecutive voyage charter (other than the ABT Charterparty) for a term which exceeds or which by virtue of any optional extensions therein contained may exceed twelve (12) months’ duration; or |
(iii) | on terms whereby more than four months’ hire (or the equivalent) is payable in advance; or |
(iv) | other than on an arm’s length basis; |
(b) |
(d) |
(e) |
Transfer/Encumbrances: not without the prior written consent of the Lender sell or otherwise dispose of the Vessel or any share therein or create or agree to create or permit to subsist any Encumbrance over the Vessel (or any share or interest therein) other than Permitted Encumbrances; |
(g) | Not imperil Flag, Ownership, Insurances: ensure that the Vessel is maintained and trades in conformity with the laws of the Flag State, of its owning company or of the nationality of the officers, the requirements of the Insurances and nothing is done or permitted to be done which could endanger the flag of the Vessel or its unencumbered (other than Encumbrances in favour of the Lender and Encumbrances permitted by this Agreement) ownership or its Insurances; |
(h) | Mortgage Covenants: always comply with all the covenants provided for in the Mortgage; |
(j) | Sharing of Earnings: |
(i) | not enter into any agreement or arrangement for the sharing or pooling of the Earnings; and/or |
(ii) | not enter into any agreement or arrangement for the postponement of any date on which any Earnings are due; the reduction of the amount of any Earnings or otherwise for the release or adverse alteration of any right of the Borrower to any Earnings; and/or |
(iii) |
(k) | Long chartering: ensure and procure that in the event of the Vessel being employed under a Charterparty of a duration longer than 12 months, (a) the Borrower shall execute and deliver to the Lender within fifteen (15) days of signing thereof a specific Charterparty Assignment in favour of the Lender of the benefit of such Charterparty and a notice of any such assignment addressed to the relevant charterer and endorsed with an acknowledgement of receipt by the relevant charterer, all in form and substance satisfactory to the Lender or (b) alternatively at the discretion of the Lender, a copy of irrevocable instructions of the Owner of the Vessel to the charterer for the payment of the hire to the Lender and/or a copy of the charterparty with appropriate irrevocable notation; |
(l) |
(m) |
(n) | Compliance with Environmental Laws: comply with, and procure that all Environmental Affiliates of any Relevant Party comply with, all Environmental Laws including without limitation, requirements relating to xxxxxxx and establishment of financial responsibility and to obtain and comply with, and procure that all Environmental |
48 (J18-185622/C)
Affiliates of such Relevant Party obtain and comply with, all Environmental Approvals and to notify the Lender forthwith:
(i) | of any Environmental Claim for an amount or amounts in aggregate exceeding Two hundred thousand Dollars ($200,000) made against the Vessel, any Relevant Ship and/or her respective owner; and |
(ii) |
8.4 |
(a) |
(b) |
(c) |
(d) |
(e) | Additional Documents: from time to time and within fifteen (15) days after the request of the Lender execute and deliver to the Lender or procure the execution and delivery to the Lender of all such documents as shall be deemed desirable at the reasonable discretion of the Lender for giving full effect to this Agreement, and for perfecting, protecting the value of or enforcing any rights or securities granted to the Lender under any one or more of this Agreement, the other Finance Documents and any other documents executed pursuant hereto or thereto and in case that any conditions precedent (with the Lender’s consent) have not been fulfilled prior to the relevant Drawdown Date, such conditions shall be complied with within fifteen (15) Banking Days after the |
49 (J18-185622/C)
8.5 |
(a) | Security shortfall - Additional Security: If at any time during the Security Period, the Security Value shall be less than the Security Requirement, the Lender may give notice to the Borrower requiring that such deficiency be remedied and then the Borrower shall (unless the sole cause of such deficiency is the Total Loss of the Vessel and the Borrower is in full compliance with its obligations in relation to such Total Loss) either: |
(i) | prepay (in accordance with Clause 4.2 (Voluntary prepayment) (but without regard to the requirement for five (5) Banking days notice) within a period of thirty (30) days of the date of receipt by the Borrower of the Lender’s said notice such sum in Dollars as will result in the Security Requirement after such prepayment (taking into account any other repayment of the Loan made between the date of the notice and the date of such prepayment) being at least equal to the Security Value; or |
(ii) | within thirty (30) days of the date of receipt by the Borrower of the Lender’s said notice constitute to the satisfaction of the Lender such further security for the Loan as shall be acceptable to the Lender having a value for security purposes (as determined by the Lender in its absolute discretion) at the date upon which such further security shall be constituted which, when added to the Security Value, shall not be less than the Security Requirement as at such date. Such additional security shall be constituted by: |
a) | additional pledged cash deposits in favor of the Lender in an amount equal to such shortfall with the Lender and in an account and manner to be determined by the Lender; and/or |
b) | any other security acceptable to the Lender at its absolute discretion to be provided in a manner determined by the Lender. |
Any such additional security provided by the Borrower shall be promptly released by the Lender once the Security Requirement ratio has been restored. The provisions of Clauses 4.2 (Voluntary prepayment) and 4.4 (Amounts payable on prepayment) shall apply to prepayments under Clause 8.5(a)(i).
(b) | Valuation of Vessel: The Vessel shall, for the purposes of this Clause 8.5, be valued in Dollars not more than once a year but at any time that the Lender may require after an Event of Default has occurred by one (1) Approved Shipbroker appointed by the Lender, (such valuation to be made without, unless required by the Lender, physical inspection, and on the basis of a sale for prompt delivery for cash at arms length on normal commercial terms as between a willing buyer and a willing seller, without taking into account the benefit of any Charterparty or other engagement concerning the Vessel). The Lender and the Borrower agree to accept the valuation made by the Approved Shipbroker appointed as aforesaid as conclusive evidence of the Market Value of the Vessel at the date of such valuation and that such valuation shall constitute the Market Value of the Vessel for the purposes of this Clause 8.5. |
50 (J18-185622/C)
(c) |
(d) | Costs: All costs in connection with the Lender obtaining any valuation of the Vessel referred to in Clause 8.5(b) (Valuation of Vessel), and any valuation of any additional security for the purposes of ascertaining the Security Value at any time or necessitated by the Borrower electing to constitute additional security pursuant to Clause 8.5(a)(ii) and all legal and other expenses incurred by the Lender in connection with any matter arising out of this Clause 8.5 shall be borne by the Borrower. |
Documents and evidence: In connection with any additional security provided in accordance with this Clause 8.5, the Lender shall be entitled to receive such evidence and documents of the kind referred to in Clause 7.1 (Conditions precedent to the execution of this Agreement) as may in the Lender’s opinion be appropriate and such favourable legal opinions as the Lender shall in its absolute discretion require. |
8.6 | Sanctions. The Borrower shall ensure that: |
(a) | the Vessel will not be employed, and will not suffer the Vessel to be employed, and the Borrower will not conduct or undertake any business: |
(i) | in breach of any embargo or sanction or prohibited order (or any similar order or directive) of: |
a) | the United Nations Security Council; |
b) | the European Union; |
c) | the United Kingdom; |
d) | the United States of America; |
e) | the Flag State; |
f) | any state of which any officer or crew member of the Vessel is a national as they apply to their members or nationals; and |
51 (J18-185622/C)
(ii) | in any trade, carriage of goods or business which is forbidden by the laws of the United Kingdom or the United States of America as they apply to their members or nationals, or any law applicable to the Borrower, the Approved Manager, any charterer of the Vessel or any country which the Vessel may visit; or |
(iii) | in carrying illicit or prohibited goods; or |
(iv) | in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated; or |
(v) | in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the any Applicable Sanctions; and |
(b) |
8.7 | Covenants for the Securities Parties. The Borrower hereby undertakes with the Lender that, from the date of this Agreement and so long as any moneys are owing under the Finance Documents and while all or any part of the Commitment remains outstanding, it will ensure and procure that all other Security Parties (other than the Approved Manager, except where appropriate in its capacity as Approved Manager) and each of them duly and punctually comply, with the covenants in Clauses 8.1 (General), 8.3 (Undertakings concerning the Vessel), 8.4 (Validity of Securities - Earnings - Taxes etc.), 8.5 (Security cover - Valuation of the Vessel) and 8.6 (Sanctions) which are applicable to them mutatis mutandis. |
8.8 | Know your customer and money laundering compliance. The Borrower hereby undertakes with the Lender that, from the date of this Agreement and so long as any moneys are owing under the Finance Documents and while all or any part of the Commitment remains outstanding, it will provide the Lender, or procure the provision of, such documentation and other evidence as the Lender shall from time to time require, based on applicable law and regulations from time to time and the Lender’s own internal guidelines from time to time to identify the Borrower and the other Security Parties, including the disclosure in writing of the ultimate legal and beneficial owner or owners of such entities, and any other persons involved or affected by the transaction(s) contemplated by this Agreement in order for the Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. |
9. |
9.1 | Events. There shall be an Event of Default if: |
(a) |
(b) | Breach of Insurance and certain other obligations: the Borrower fails to obtain and/or maintain the Insurances (as defined in, and in accordance with the requirements of, the Finance Documents) or if any insurer in respect of such Insurances cancels the Insurances or disclaims liability by reason, in either case, of mis‑statement in any proposal for the Insurances or for any other failure or default on the part of the Borrower or any other person or the Borrower commits any breach of or omits to observe any of the obligations or undertakings expressed to be assumed by it under Clause 8 (Covenants), and, in respect of any such failure, cancellation, disclaim, breach or omission which in the opinion of the Lender is capable of remedy, such action as the Lender may require shall not have been taken within fifteen (15) days of the Lender notifying in writing the relevant Security Party of such default and of such required action; or |
(c) | Breach of other obligations: any Security Party commits any breach of or omits to observe any of its obligations or undertakings expressed to be assumed by it under any of the Finance Documents (other than those referred to in Clauses 9.l(a) (Non‑payment) and 9.1(b) (Breach of Insurance and certain other obligations) above) and, in respect of any such breach or omission which in the opinion of the Lender is capable of remedy, such action as the Lender may require shall not have been taken within fifteen (15) days of the Lender notifying in writing the relevant Security Party of such default and of such required action; or |
(d) | Misrepresentation: any representation or warranty made or deemed to be made or repeated by or in respect of any Security Party in or pursuant to any of the Finance Documents or in any notice, certificate or statement referred to in or delivered under any of the Finance Documents is or proves to have been incorrect or misleading in any material respect; or |
53 (J18-185622/C)
(e) | Cross‑default: any Financial Indebtedness of any of the Borrower and the Guarantors relating to an amount exceeding Three hundred thousand Dollars ($300,000) is not paid when due (unless contested in good faith) or any Financial Indebtedness of any of the Borrower and the Guarantors relating to an amount exceeding Three hundred thousand Dollars ($300,000) becomes (whether by declaration or automatically in accordance with the relevant agreement or instrument constituting the same) due and payable prior to the date when it would otherwise have become due (unless as a result of the exercise by such Security Party of a voluntary right of prepayment), or the Lender of any of the Borrower and the Guarantors becomes entitled to declare any such Financial Indebtedness due and payable or any facility or commitment available to any of the Borrower and the Guarantors relating to such Financial Indebtedness is withdrawn, suspended or cancelled by reason of any default (however described) of the person concerned unless the relevant Security Party shall have satisfied the Lender that such withdrawal, suspension or cancellation will not affect or prejudice in any way the relevant Security Party’s ability to pay its debts as they fall due, or any guarantee given by any of the Borrower and the Guarantors in respect of Financial Indebtedness relating to an amount exceeding Three hundred thousand Dollars ($300,000) is not honoured when due and called upon unless contested in good faith; or |
(f) | Legal process: any judgment or order made or commenced in good faith by a person against any of the Borrower and the Guarantors relating to an amount exceeding Three hundred thousand Dollars ($300,000) is not stayed or complied with within fifteen (15) days or a good faith creditor attaches or takes possession of, or a distress, execution, sequestration or other bonafide process is levied or enforced upon or sued out against, any of the undertakings, assets, rights or revenues of any of the Borrower and the Guarantors and is not discharged within fifteen (15) days; or |
(g) |
(h) | Reduction or loss of capital: a meeting is convened by either of the Borrower and the Corporate Guarantors for the purpose of passing any resolution to purchase, reduce or redeem any of its share capital; or |
(i) |
(j) |
(k) | Appointment of receivers and managers: any administrative or other receiver is appointed of any Security Party or any part of its assets and/or undertaking or any other steps are taken to enforce any Encumbrance over all or any part of the assets of any Security Party; or |
54 (J18-185622/C)
(l) | Compositions: any steps are taken, or negotiations commenced, by any Security Party or by any of its creditors with a view to the general readjustment or rescheduling of all or part of its indebtedness or to proposing any kind of composition, compromise or arrangement involving such company and any of its creditors provided, however, that if the relevant Security Party is able to provide such evidence as is satisfactory in all respects to the Lender that such rescheduling will not relate to any payment default or anticipated default the same shall not constitute an Event of Default; or |
Analogous proceedings: there occurs, in relation to any Security Party, in any country or territory in which any of them carries on business or to the jurisdiction of whose courts any part of their assets is subject, any event which, in the opinion of the Lender, appears in that country or territory to correspond with, or have an effect equivalent or similar to, any of those mentioned in Clauses 9.1(f) (Legal process) to (l) (Compositions) (inclusive) or any Security Party otherwise becomes subject, in any such country or territory, to the operation of any law relating to insolvency, bankruptcy or liquidation; or |
Cessation of business: any Security Party suspends or ceases or threatens to suspend or cease to carry on its business; or |
(o) |
(p) | Invalidity: any of the Finance Documents shall at any time and for any reason become invalid or unenforceable or otherwise cease to remain in full force and effect unless remedied within fifteen (15) days, or if the validity or enforceability of any of the Finance Documents shall at any time and for any reason be contested by any Security Party which is a party thereto, or if any such Security Party shall deny that it has any, or any further, liability thereunder; or |
(q) | Unlawfulness: it becomes impossible or unlawful at any time for any Security Party, to fulfil any of the covenants and obligations expressed to be assumed by it in any of the Finance Documents or for the Lender to exercise the rights or any of them vested in it under any of the Finance Documents or otherwise; or |
(r) | Repudiation: any Security Party repudiates any of the Finance Documents or does or causes or permits to be done any act or thing evidencing an intention to repudiate any of the Finance Documents; or |
(s) | Encumbrances enforceable: any Encumbrance (other than Permitted Liens) in respect of any of the property (or part thereof) which is the subject of any of the Finance Documents becomes enforceable; or |
55 (J18-185622/C)
(t) | Material adverse change: there occurs, in the reasonable opinion of the Lender, a material adverse change in the financial condition of any of the Borrower and the Guarantors as described by the Borrower or any of the Guarantors to the Lender in the negotiation of this Agreement, which might, in the opinion of the Lender, materially adversely impair the ability of the above Security Parties (or any of them) to perform their respective obligations under this Agreement and the Finance Documents to which is or is to be a party; or |
(u) |
(v) |
(w) |
(x) |
(y) |
(z) | Change of Management: the Vessel ceases to be managed by the Approved Manager (for any reason other than the reason of a Total Loss or sale of the Vessel) without the approval of the Lender and the Borrower fails to appoint another Approved Manager prior to the termination of the mandate with the previous Approved Manager; or |
56 (J18-185622/C)
(aa) |
(bb) | Operating Account: any moneys are withdrawn from the Operating Account other than in accordance with Clauses 8.4(b) (Earnings) and 13 (Operating Account) of the Loan Agreement; or |
57 (J18-185622/C)
(cc) | ISM Code and ISPS Code: (without prejudice to the generality of Clause 9.1(c) (Breach of other obligations)) for any reason whatsoever the provisions of Clause 8.1(o) (Compliance with ISM Code) and (p) (Compliance with ISPS Code) are not complied with and the Vessel ceases to comply with the ISM Code or, as the case may be, the ISPS Code; or |
(ee) | Personal Guarantor: the Personal Guarantor passes away or is found to be of unsound mind or of any other legal disability or incapacity by a court of a Relevant Jurisdiction, or legal proceedings initiated for the Personal Guarantor to be adjudicated or found bankrupt or any event analogous thereto occurs in relation to the Personal Guarantor in any jurisdiction or any of the events referred to in Clauses 9.1(d) (Misrepresentation) or (e) (Cross-default) occurs (mutatis mutandis) in relation to the Personal Guarantor, unless the Borrower provides the Lender with a substitute Personal Guarantee executed by a person approved by the Lender at its sole discretion or other security acceptable to the Lender, within a period of not more than thirty (30) Banking Days from the occurrence of any such event or any steps are taken; or |
(ff) |
9.2 | Consequences of Default – Acceleration. The Lender may without prejudice to any other rights of the Lender (which will continue to be in force concurrently with the following), at any time after the happening of an Event of Default: |
(a) | by notice to the Borrower declare that the obligation of the Lender to make the Commitment (or any part thereof) available shall be terminated, whereupon the Commitment shall be reduced to zero forthwith; and/or |
(b) | by notice to the Borrower declare that the Loan and all interest accrued and all other sums payable under the Finance Documents have become due and payable, whereupon the same shall, immediately or in accordance with the terms of such notice, become due and payable without any further diligence, presentment, demand of payment, protest or notice or any other procedure from the Lender which are expressly waived by the Borrower; and/or |
58 (J18-185622/C)
(c) |
9.5 |
9.6 |
9.7 | Exclusion of Bank’s liability. Neither the Lender nor any receiver or manager appointed by the Lender, shall have any liability to the Borrower or a Security Party: |
(a) | for any loss caused by an exercise of rights under, or enforcement of an Encumbrance created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such an Encumbrance; or |
59 (J18-185622/C)
(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 an Encumbrance or for any reduction (however caused) in the value of such an asset, |
INDEMNITIES - EXPENSES – FEES |
10.1 | Miscellaneous indemnities. The Borrower shall on demand (and it is hereby expressly undertaken by the Borrower to) indemnify the Lender, without prejudice to any of the other rights of the Lender under any of the Finance Documents, against any loss or expense which the Lender shall certify as sustained or incurred as a consequence of: |
(a) | any default in payment by any of the Security Parties of any sum under any of the Finance Documents when due; |
(b) | the occurrence of any Event of Default which is continuing; |
(c) | any prepayment of the Loan or part thereof being made under Clauses 4.2 (Voluntary Prepayment) and 4.3 (Compulsory Prepayment in case of Total Loss or sale of the Vessel), 8.5(a) (Security shortfall-Additional Security) or Clause 12 (Unlawfulness, Increased Costs) or any other repayment of the Loan or part thereof being made otherwise than on an Interest Payment Date relating to the part of the Loan prepaid or repaid; or |
(d) | the Commitment not being advanced for any reason (excluding any default by the Lender and any reason mentioned in Clause 12.1 (Unlawfulness)) after the Drawdown Notice has been given, including, in any such case, but not limited to, any loss or expense sustained or incurred in maintaining or funding the Loan or any part thereof or in liquidating or re-employing deposits from third parties acquired to effect or maintain the Loan or any part thereof. |
10.2 | Expenses. The Borrower shall (and it is hereby expressly undertaken by the Borrower to) pay to the Lender on demand: |
(a) | Initial and Amendment expenses: all expenses (including reasonable legal, printing and out-of-pocket expenses) reasonably incurred by the Lender in connection with the negotiation, preparation and execution of this Agreement and the other Finance Documents and of any amendment or extension of or the granting of any waiver or consent under this Agreement and/or any of the Finance Documents and/or in connection with any proposal by the Borrower to constitute additional security pursuant to Clause 8.5(a) (Security shortfall-Additional Security), whether any such security shall in fact be constituted or not; |
(b) |
(c) | Legal costs: the legal costs of the Lender’s appointed lawyers, in respect of the preparation of this Agreement and the other Finance Documents as well as the legal costs of the foreign lawyers (if these are available) in respect of the registration of the Finance Documents or any search or opinion given to the Lender in respect of the Security Parties or the Vessel or the Finance Documents. The said legal costs shall be due and payable on the Drawdown Date; and |
(d) | Other expenses: any and all other Expenses. |
61 (J18-185622/C)
All expenses payable pursuant to this Clause 10.2 (Expenses) shall be paid together with value added tax (if any) thereon.
10.3 |
10.5 | Currency Indemnity. If any sum due from the Borrower under any of the Finance Documents or any order or judgement given or made in relation hereto has to be converted from the currency (the “first currency”) in which the same is payable under the relevant Finance Document or under such order or judgement into another currency (the “second currency”) for the purpose of (i) making or filing a claim or proof against the Borrower or any other Security Party, as the case may be or (ii) obtaining an order or judgement in any court or other tribunal or (iii) enforcing any order or judgement given or made in relation to any of the Finance Documents, the Borrower shall (and it is hereby expressly undertaken by the Borrower to) indemnify and hold harmless the Lender from and against any loss suffered as a result of any difference between (a) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (b) the rate or rates of exchange at which the Lender 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, judgement, claim or proof. 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. |
10.6 | Central Bank or European Central Bank reserve requirements indemnity. The Borrower shall on demand promptly indemnify the Lender against any cost incurred or loss suffered by the Lender as a result of its complying with the minimum reserve requirements of the European Central Bank and/or with respect to maintaining required reserves with the relevant national Central Bank to the extent that such compliance relates to the Commitment or deposits obtained by it to fund the whole or part of the Loan and to the extent such cost or loss is not recoverable by the Lender under Clause 12.3 (Increased costs). |
10.8 | MII costs. The Borrower shall reimburse the Lender on demand for any and all costs incurred by the Lender (as conclusively certified by the Lender) in effecting and keeping effected (i) a Mortgagee’s Interest Insurance (herein “MII”) which the Lender may at any time effect for an amount of 110% of the Loan and on such terms and with such insurers as shall from time to time be determined by the Lender, provided, however, that the Lender shall in its absolute discretion appoint and instruct in respect of any such MII policy the insurance brokers in respect of such Insurance and provided, further, that in the event that the Lender effects any such Insurance on the basis of any mortgagee’s open cover, the Borrower shall pay on demand to the Lender its proportion of premium due in respect of the vessel(s) for which such insurance cover has been effected by the Lender, and any certificate of the Lender in respect of any such premium due by the Borrower shall (save for manifest error) be conclusive and binding upon the Borrower. |
Communications Indemnity. It is hereby agreed in connection with communications that: |
(a) | Express authority is hereby given by the Borrower to the Lender to accept all tested or untested communications given by facsimile, cable or otherwise, regarding any or all of the notices, requests, instructions or other communications under this Agreement, subject to any restrictions imposed by the Lender relating to such communications including, without limitation (if so required by the Lender), the obligation to confirm such communications by letter. |
(b) | The Borrower shall recognise any and all of the said notices, requests, instructions or other communications as legal, valid and binding, when these notices, requests, instructions or communications come from the fax number mentioned in Clause 16.1 (Notices) or any other fax usually used by it or its managing company and are duly signed or in case of emails are duly sent by the person appearing to be sending such notice, request, instruction or other communication. |
(c) | The Borrower hereby assumes full responsibility for the execution of the said notices, requests, instructions or communications and promises and recognises that the Lender shall not be held responsible for any loss, liability or expense that may result from such notices, requests, instructions or other communications. It is hereby undertaken by the Borrower to indemnify in full the Lender from and against all actions, proceedings, damages, costs, claims, demands, expenses and any and all direct and/or indirect losses which the Lender may suffer, incur or sustain by reason of the Lender following such notices, requests, instructions or communications. |
63 (J18-185622/C)
(d) | With regard to notices, requests, instructions or communications issued by electronic and/or mechanical processes (e.g. by facsimile), the risk of equipment malfunction, including, without limitation, paper shortage, transmission errors, omissions and distortions is assumed fully and accepted by the Borrower, save in case of Bank’s wilful misconduct. |
(e) | The risks of misunderstandings and errors resulting from notices, requests, instructions or communications being given as mentioned above, are for the Borrower and the Lender will be indemnified in full pursuant to this Clause save in case of Bank’s gross wilful misconduct. |
(f) | The Lender shall have the right to ask the Borrower to furnish any information the Lender may require to establish the authority of any person purporting to act on behalf of the Borrower for these notices, requests, instructions or communications but it is expressly agreed that there is no obligation for the Lender to do so. The Lender shall be fully protected in, and the Lender shall incur no liability to the Borrower for acting upon the said notices, requests, instructions or communications which were believed by the Lender in good faith to have been given by the Borrower or by any of its authorised representative(s). |
(g) |
10.10 | Fees. The Borrower shall pay to the Lender an arrangement fee in the amount equal to 1% of the amount of the Loan to be drawn down (the “Arrangement Fee”) payable upon the drawdown of the Loan. The Arrangement Fee shall be payable by the Borrower to the Lender whether or not any part of the Commitment is ever advanced and shall be non-refundable. |
10.11 | FATCA Deduction |
(a) | Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. |
(b) |
10.12 | FATCA status |
(a) | The Lender hereby confirms to the Borrower that it is a FATCA Exempt Party. If, after the date of this Agreement the Lender becomes aware that it has ceased to be a FATCA Exempt Party, it will notify the Borrower reasonably promptly. |
64 (J18-185622/C)
(b) | Subject to Clause 10.12(d) below, each party shall, within ten (10) Banking Days of a reasonable request by another party: |
(i) | confirm to that other party whether it is and/or remains: |
a) | a FATCA Exempt Party; Or |
b) | 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 percentage or other information required under the 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. |
(c) | If a party confirms to another party pursuant to Clause 10.12(b)(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. |
(d) | Clause 10.12(b)(i) above shall not oblige the Lender to do anything which would or might in its reasonable opinion constitute a breach of: |
(i) | any law or regulation applicable to the Lender; |
(ii) | any fiduciary duty; Or |
(iii) | any duty of confidentiality. |
(e) | If a party fails to confirm its status or to supply forms, documentation or other information requested in accordance with Clause 10.12(b) above (including, for the avoidance of doubt, where Clause 10.12(d) 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 percentage then such party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable passthru percentage is 100%, |
11. |
11.1 |
(a) | Order of application: All moneys received by the Lender under or pursuant to any of the Finance Documents and expressed to be applicable in accordance with this Clause 11.3 shall be applied by the Lender in the following manner: |
(i) | Firstly, in or towards payment of Expenses and all sums other than principal or interest which may be due to the Lender under this Agreement and the other Finance Documents or any of them at the time of application; |
(ii) | Secondly, in or towards payment of any default interest; |
(iii) | Thirdly, in or towards payment of any arrears of interest (other than default interest) due in respect of the Loan or any part thereof; |
(iv) | Fourthly, in or towards repayment of the Loan whether the same is due and payable or not; |
(v) | Fifthly, in or towards payment to the Lender for any loss suffered by reason of any such payment in respect of principal not being effected on an Interest Payment Date relating to the part of the Loan repaid; and |
(vi) |
(b) | Notice of variation of order of application: The Lender may, by notice to the Borrower and the Security Parties, provide, at its sole discretion, for a different order of application from that set out in Clause 11.3(a) (Order of application) either as regards a specified sum or sums or as regards sums in a specified category or categories, without affecting the obligations of the Borrower to the Lender. |
(d) |
11.4 | Set off. Express authority is hereby given by the Borrower to the Lender without prejudice to any of the rights of the Lender at law, contractually or otherwise, at any time after a Default has occurred and is continuing and without prior notice to the Borrower: |
(a) | to apply any credit balance standing upon any account of the Borrower with any branch of the Lender (including, without limitation, the Operating Account) and in whatever currency in or towards satisfaction of any sum due to the Lender from the Borrower under this Agreement, the General Assignment and/or any of the other Finance Documents; |
(b) | in the name of the Borrower and/or the Lender to do all such acts and execute all such documents as may be necessary or expedient to effect such application; and |
(c) | to combine and/or consolidate all or any accounts in the name of the Borrower with the Lender. |
12. |
12.1 | Unlawfulness. If any change in, or introduction of, any law, regulation or regulatory requirement or any request of any central bank, monetary, regulatory or other authority or any order of any court renders it unlawful or contrary to any such regulation, requirement, request or order for the Lender to advance the Commitment or the relevant part thereof (as the case may be) or to maintain or fund the Loan, notice shall be given promptly by the Lender to the Borrower whereupon the Commitment shall be reduced to zero and the Borrower shall be obliged to prepay the Loan in accordance with such notice, together with accrued interest thereon to the date of prepayment and all other sums payable by the Borrower under this Agreement. |
In any such event the Borrower and the Lender shall (as per the provisions of Clause 3.6(d) (Alternative basis of interest or funding)) negotiate in good faith (but without incurring any legal obligations) with a view to agreeing the terms for making the Loan available from another jurisdiction or providing the Loan from alternative sources.
12.3 | Increased Cost. If, as a result of (a) any change in, or in the interpretation or application of, or the introduction of, any law or any regulation, request or requirement (whether or not having the force of law, but, if not having the force of law, with which the Lender or, as the case may be, its holding company habitually complies), including (without limitation) those relating to Taxation, capital adequacy, liquidity, reserve assets, cash ratio deposits and special deposits or other banking or monetary controls or requirements which affects the manner in which the Lender allocates capital resources to its obligations hereunder and those (including, but not limited to, “Basel III”) which shall replace, amend and/or supplement the provisions set out in the statement (as in effect as of the date of this Agreement) of the Basle II committee on banking supervision dated July 1988 and entitled “international convergence of capital measurement and capital structures” or any amendatory or substitute agreement thereof, or (b) compliance by the Lender with any request from any applicable fiscal or monetary authority (whether or not having the force of law but, if not having the force of law, with which the Lender habitually complies) or (c) any other set of circumstances affecting the Lender: |
(a) | the cost to the Lender of making the Commitment or any part thereof or maintaining or funding the Loan is increased or an additional cost on the Lender is imposed; and/or |
(b) | subject the Lender to Taxes or the basis of Taxation (other than Taxes or Taxation on the net income of the Lender) in respect of any payments to the Lender under this Agreement or any of the other Finance Documents is changed; and/or |
(c) | the amount payable or the effective return to the Lender under any of the Finance Documents is reduced; and/or |
(d) | the Lender’s rate of return on its overall capital by reason of a change in the manner in which it is required to allocate capital resources to the Lender’s obligations under any of the Finance Document is reduced; and/or |
(e) | require the Lender to make a payment or forgo a return on or calculated by references to any amount received or receivable by it under any of the Finance Documents is required; and/or |
(f) | require the Lender to incur or sustain a loss (including a loss of future potential profits) by reason of being obliged to deduct all or part of the Commitment or the Loan from its capital for regulatory purposes, |
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then and in each case (subject to Clause 12.7 (Exception)) the Borrower shall pay to the Lender, from time to time, upon demand, such additional moneys as shall indemnify the Lender for any increased or additional cost, reduction, payment, foregone return or loss whatsoever.
Claim for increased cost. The Lender will promptly notify the Borrower of any intention to claim indemnification pursuant to Clause 12.3 (Increased Cost) and such notification will be a conclusive and full evidence binding on the Borrower as to the amount of any increased cost or reduction and the method of calculating the same and the Borrower shall be allowed to rebut such evidence by any means of evidence save for witness. A claim under Clause 12.3 (Increased Cost) may be made at any time and must be discharged by the Borrower within fifteen (15) days of demand. It shall not be a defence to a claim by the Lender under this Clause 12.4 that any increased cost or reduction could have been avoided by the Lender. Any amount due from the Borrower under Clause 12.3 (Increased Cost) shall be due as a separate debt and shall not be affected by judgement being obtained for any other sums due under or in respect of this Agreement. |
12.5 | Central Bank or European Central Bank reserve requirements indemnity. The Borrower shall on demand promptly indemnify the Lender against any cost incurred or loss suffered by the Lender as a result of its complying with the minimum reserve requirements of the European Central Bank and/or with respect to maintaining required reserves with the relevant national Central Bank to the extent that such compliance relates to the Commitment or deposits obtained by it to fund the whole or part of the Loan and to the extent such cost or loss is not recoverable by the Lender under Clause 12.3 (Increased Cost). |
12.7 | Exception. Nothing in Clause 12.3 (Increased Cost) shall entitle the Lender to receive any amount in respect of compensation for any such liability to Taxes, increased or additional cost, reduction, payment, foregone return or loss to the extent that the same is subject of an additional payment under Clause 5.3 (Gross Up). |
12.8 | Contractual recognition of bail-in. Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of: |
(a) | any Bail-In Action in relation to any such liability, including (without limitation): |
(i) | a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; |
(ii) | a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; And |
(iii) | a cancellation of any such liability; and |
69 (J18-185622/C)
(b) |
13. |
13.1 | General. The Borrower undertakes with the Lender that it will: |
(a) | on or before the Drawdown Date open the Operating Account; and |
Application of Earnings. Subject to the terms and conditions of the Accounts Pledge Agreement, no monies shall be withdrawn from the Operating Account save as hereinafter provided. Subject to Clause 9 (Events of Default), all monies paid to the Operating Account (whether being Earnings or not) after discharging the costs (if any) incurred by the Lender, in collecting such monies, shall be applied as follows: |
(a) | firstly: in payment of any and all sums whatsoever which from time to time become due and payable to the Lender hereunder (such sums to be paid in such order as the Lender may in its sole discretion elect); |
(b) | secondly: in payment of the Operating Expenses; and |
(c) |
13.3 | Interest. Any amounts for the time being standing to the credit of the Operating Account shall bear interest at the rate from time to time offered by the Lender to its customers for Dollar deposits of similar amounts and for periods similar to those for which such amounts are likely to remain standing to the credit of the Operating Account. Such interest shall, provided that (a) the foregoing provisions of this Clause 13.3 shall have been complied with and (b) no Event of Default (or event which, with the giving of notice and/or lapse of time or other applicable condition, might constitute an Event of Default) shall have occurred and is continuing, be released to the Borrower. |
13.4 |
13.5 |
Obligations unaffected. Nothing herein contained shall be deemed to affect: |
70 (J18-185622/C)
(a) | the liability and absolute obligation of the Borrower to pay interest on and to repay the Loan as provided in Clauses 3 (Interest) and 4 (Repayment-Prepayment) nor shall they constitute or be construed as constituting a manner of postponement thereof; or |
(b) |
13.9 | Application on Event of Default. Upon the occurrence of an Event of Default which is continuing or at any time thereafter (whether or not notice of default has been given to the Borrower) the Lender shall be entitled, but not bound, to apply all sums standing to the credit of the Operating Account and accrued interest (if any) without notice to the Borrower in the manner specified in Clause 11.3 (Application of funds) (and express and irrevocable authority is hereby given by the Borrower to the Lender so to set off and/or debit the Operating Account accordingly by the same and the Lender shall be released to the extent of such set off and application). |
13.10 |
13.12 |
14. |
14.1 | Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Lender and the Borrower and their respective successors and permitted assigns. |
14.5 | Disclosure of information. The Lender may disclose to a prospective assignee, substitute or transferee or to any other person who may propose entering into contractual relations with the Lender in relation to this Agreement such information about the Borrower as the Lender shall consider appropriate if the Lender first procures that the relevant prospective assignee, substitute or transferee or other person (such person together with any prospective assignee, substitute or transferee being hereinafter described as the “Prospective Assignee”) shall undertake to keep secret and confidential and shall not, without the consent of the Lender, disclose to any third party any of the information, reports or documents supplied by the Lender provided, however, that the Prospective Assignee shall be entitled to disclose such information, reports or documents in the following situations: |
(a) | in relation to any proceedings arising out of this Agreement or the other Finance Documents to the extent considered necessary by the Prospective Assignee to protect its interest; or |
(b) | pursuant to a court order relating to discovery or otherwise; or |
(c) | pursuant to any law or regulation or to any fiscal, monetary, tax, governmental or other competent authority; or |
(d) | to its auditors, legal or other professional advisers. |
14.7 | Securitisation. The Lender may include all or any part of the Loan in a securitisation (or similar transaction) pursuant to Law 3156/2003, or any other relevant legislation introduced or enacted after the date of this Agreement, without the consent of, or consultation with, but after giving 30-day notice to the Borrower. The Borrower will assist the Lender as necessary to achieve a successful securitisation (or similar transaction) provided that the Borrower shall not be required to bear any third party costs related to any such securitisation (or similar transaction) and that such securitisation (or similar transaction) shall not result in an increase of the Borrower’s obligations under this Agreement and the other Security Documents and need only provide any such information which any third parties may reasonably require. |
14.8 | Lending Office. The Lender shall lend through its office at the address specified in the preamble of this Agreement or through any other office of the Lender selected from time to time by it through which the Lender wishes to lend for the purposes of this Agreement. If the office through which the Lender is lending is changed pursuant to this Clause 14.9, the Lender shall notify the Borrower promptly of such change and upon notification of any such transfer, the word “Lender” in this Agreement and in the other Finance Documents shall mean the Lender, acting through such branch or branches and the terms and provisions of this Agreement and of the other Finance Documents shall be construed accordingly. |
15.1 | Time of essence. Time shall be of the essence of this Agreement. |
15.2 |
15.4 |
Amendments. in writing. This Agreement and any other Finance Documents shall not be amended or varied in their respective terms by any oral agreement or representation or in any other manner other than by an instrument in writing of even date herewith or subsequent hereto executed by or on behalf of the parties hereto or thereto. |
15.7 |
Inconsistency of Terms. In the event of any inconsistency between the provisions of this Agreement and the provisions of any other Finance Document the provisions of this Agreement shall prevail. |
15.9 | Language and genuineness of documents |
75 (J18-185622/C)
(a) | Language: All certificates, instruments and other documents to be delivered under or supplied in connection with this Agreement or any of the other Finance Documents shall be in the Greek or the English language (or such other language as the Lender shall agree) or shall be accompanied by a certified Greek translation upon which the Lender shall be entitled to rely. |
(b) | Certification of documents: Any copies of documents delivered to the Lender shall be duly certified as true, complete and accurate copies by appropriate authorities or legal counsel practising in Greece or otherwise as will be acceptable to the Lender at the sole discretion of the Lender. |
(c) |
15.11 |
15.12 |
15.13 | Confidentiality |
(a) | Each of the parties hereto agrees and undertakes to keep confidential any documentation and any confidential information concerning the business, affairs, directors or employees of the other which comes into its possession in connection with this Agreement and not to use any such documentation, information for any purpose other than for which it was provided. |
(b) | The Borrower acknowledges and accepts that the Lender may be required by law, regulation or regulatory requirement or any request of any central bank or any court order to disclose information and deliver documentation relating to the Borrower and the transactions and matters in relation to this Agreement and/or the other Finance Documents to governmental or regulatory agencies and authorities. |
76 (J18-185622/C)
(c) | The Borrower acknowledges and accepts that in case of occurrence of any of the Events of Default the Lender may disclose information and deliver documentation relating to the Borrower and the transactions and matters in relation to this Agreement and/or the other Finance Documents to third parties to the extent that this is necessary for the enforcement or the contemplation of enforcement of the Lender’s rights or for any other purpose for which in the opinion of the Lender, such disclosure would be useful or appropriate for the interests of the Lender or otherwise and the Borrower expressly authorises any such disclosure and delivery. |
(d) | The Borrower acknowledges and accepts that the Lender may be prohibited from disclosing information to the Borrower by reason of law or duties of confidentiality owed or to be owed to other persons. |
(e) |
Process of personal data. The Borrower hereby expressly gives its consent to the communication for process in the meaning of law 2472/97 by the Lender of its personal data contained in this Agreement, the Finance Documents, in the Operating Account for onwards communication thereof to an inter-banking database record called “Teiresias” kept and solely used by banks and financial institutions. The Borrower is entitled at any relevant time throughout the Security Period to revoke its consent given hereunder by written notice addressed to the Lender and the Registrar of “Teiresias A.E.” at 0, Xxxxxxxx xxxxxx, 00000 Xxxxxxxx, Xxxxxx, Xxxxxx. |
16. |
16.1 | Notices. Every notice, request, demand or other communication under this Agreement or, unless otherwise provided therein, under any of the other Finance Documents shall: |
(a) | be in writing delivered personally or be first-class prepaid letter (airmail if available), or shall be served through a process server or subject to Clause 10.9 (Communications Indemnity) by fax; |
(b) | be deemed to have been received, subject as otherwise provided in this Agreement or the relevant Finance Document, in the case of a fax, at the time of dispatch as per transmission report (provided, in either case, that if the date of despatch is not a business day in the country of the addressee it shall be deemed to have been received at the opening of business on the next such business day), and in the case of a letter when delivered or served personally or five (5) days after it has been put into the post; and |
(c) | be sent: |
(i) | if to be sent to any Security Party, to: |
x/x Xxxxxxx Xxxx Xxxxxxxx (XX) LLC
000 Xxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxxx 00000 XXX
Fax No: x000-000-0000
Attn: Xx. Xxxxxx Del Xxxxxxx,
with copy to:
c/o SEAMAR MANAGEMENT S.A.,
77 (J18-185622/C)
00 Xxxxxxxxx Xxx, 00000,
Xxxxxxxx, Xxxxxx, Xxxxxx Fax No: x00 000 0000000
Attention: Mr. Fotios Ntousopoulos
78 (J18-185622/C)
(ii) | in the case of the Lender at: |
ALPHA BANK A.E.
00 Xxxx Xxxxxxx, Xxxxxxx, Xxxxxx
Fax No. x00 000 00 00 000
Attention: The Manager
17. |
17.1 | Applicable Law |
(a) | This Agreement and any non-contractual obligations connected with it shall be governed by, and construed in accordance with, English Law. |
(b) | For the purposes of enforcement in Greece, it is hereby expressly agreed that English law as the governing law of the Loan Agreement will be proved by an affidavit of a solicitor from an English law firm to be appointed by the Lender and the said affidavit shall constitute full and conclusive evidence binding on the Borrower but the Borrower shall be allowed to rebut such evidence save for witness. |
17.2 | Jurisdiction. |
(a) | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or any non-contractual obligations connected with it (including a dispute regarding the existence, validity or termination of this Agreement) (a “Dispute”). The Borrower irrevocably and unconditionally submits to the jurisdiction of such courts. |
(b) | The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary and waives any objections to the inconvenience of England as a forum. |
(c) |
17.3 | Process Agent for English Proceedings. Without prejudice to any other mode of service allowed under any relevant law the Borrower irrevocably designates, appoints and empowers Messrs. HILL XXXXXXXXX SERVICES (LONDON) LTD, presently located at The Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx (attention: The Director) (hereinafter called the “Process Agent for English Proceedings”), to receive for it and on its behalf, service of process issued out of the English courts in relation to any proceedings before the English courts in connection with any Finance Document, provided, however, that: |
79 (J18-185622/C)
(a) | the Borrower hereby agrees and undertakes to maintain a Process Agent for English Proceedings throughout the Security Period and hereby agrees that in the event that if any Process Agent for English Proceedings is unable for any reason to act as agent for service of process, the Borrower must immediately (and in any event within ten (10) days of such event taking place) appoint another agent on terms acceptable to the Lender. Failing this, the Lender may appoint for this purpose a substitute Process Agent for English Proceedings and the Lender is hereby irrevocably authorised to effect such appointment on Borrower’s behalf. The appointment of such Process Agent for English Proceedings shall be valid and binding from the date notice of such appointment is given by the Lender to the Borrower in accordance with Clause 16.1 (Notices); and |
(b) |
17.6 | 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. |
17.7 | Meaning of “proceedings”. In this Clause 17 “proceedings” means proceedings of any kind, including an application for a provisional or protective measure. |
80 (J18-185622/C)
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed on the date stated at the beginning of this Agreement.
SIGNED by | ) |
Mr. Fotios Ntousopoulos | ) |
for and on behalf of | ) |
BULK FREEDOM CORP., | ) /s/ Fotis Ntousopoulos |
of Xxxxxxxx Islands, in the presence of: ) Attorney-in-fact
Witness: /s/ Ioanna Dimopoulou
Name: | Ioanna Dimopoulou |
Address: Hill Xxxxxxxxx International,
0, Xxxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxx
Occupation: Attorney-at-Law
SIGNED by | ) |
Xx. Xxxxxxxxxxxx Xxxxxx and | ) /s/ Xxxxxxxxxxxx Xxxxxx |
Xxx. Xxxxxxxxxx Xxxxxxxxxxxxxxxxx | ) Attorney-in-fact |
for and on behalf of | ) |
ALPHA BANK A.E., | ) |
in the presence of: | ) /s/ Xxxxxxxxxx Xxxxxxxxxxxxxxxxx |
Attorney-in-fact
Witness: /s/ Xxxxxx Kouleri
Name: | Xxxxxx Xxxxxxx |
Xxxxxxx: 00 Xxxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxx
Occupation: Attorney-at-Law
82 (J18-185622/C)
SCHEDULE 1
FORM OF DRAWDOWN NOTICE
(referred to in Clause 2.2)
To: | ALPHA BANK A.E. |
00 Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx
(the “Lender”)
[l] June, 2017
Re: US$5,500,000 Loan Agreement dated [l] June, 2017 made between (A) BULK FREEDOM CORP., of the Xxxxxxxx Islands (the “Borrower”) and (B) the Lender (the “Loan Agreement”). |
We refer to the Loan Agreement and hereby give you notice that we wish to draw the Commitment in the amount of $([l]) (Dollars [l]) on [l] June, 2017 and we select a first Interest Period in respect of the Loan of [l] months. The funds should be credited to ([l][l] [name and number of account] [l]) with [l].
We confirm that:
(a) | no event or circumstance has occurred and is continuing which constitutes a Default; |
(b) | the representations and warranties contained in Clause 6 (Representations and warranties) of the Loan Agreement and the representations and warranties contained in each of the other Finance Documents are true and correct at the date hereof as if made with respect to the facts and circumstances existing at such date; |
(c) | the borrowing to be effected by the drawing down of the Commitment will be within our corporate powers, has been validly authorised by appropriate corporate action and will not cause any limit on our borrowings (whether imposed by statute, regulation, agreement or otherwise) to be exceeded; and |
(d) | to the best of our knowledge and belief there has been no material adverse change in our financial position or in the financial position of ourselves and the other Security Parties from that described by us to the Lender in the negotiation of the Loan Agreement. |
We also instruct the Lender to deduct from the Loan proceeds the amount of the fees referred to in Clause 10.10 (Fees) (in case same has not been paid).
Words and expressions defined in the Loan Agreement shall have the same meanings when used herein.
SIGNED by | ) |
Mr. | ) |
for and on behalf of | ) |
the Borrower | ) |
BULK FREEDOM CORP., | ) ___________________________ |
of Xxxxxxxx Islands, in the presence of: | ) Attorney-in-fact |
83 (J18-185622/C)
Witness: ___________________________
Name: | Xxxxxx Xxxxxxx |
Xxxxxxx: 00 Xxxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxx
Occupation: Attorney-at-Law
84 (J18-185622/C)
Schedule 2
Form of Insurance Letter
To: | [P&I Club] |
[l]
[l]
From: | BULK FREEDOM CORP. |
Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro,
Xxxxxxxx Islands MH 96960
[l] 20[l]
Dear Sirs
m.v. “[…………….]” (the “Vessel”)
We are obtaining loan finance from ALPHA BANK A.E. (the “Lender”) secured (inter alia) by a first ship mortgage over the Vessel. The Vessel's insurances will also be assigned to the Lender.
You are hereby authorised to send a copy of the Certificate of Entry for the Vessel to the Lender, c/o their lawyers, namely, XXXX X. XXXXXXX & CO. LAW OFFICES, of 00 Xxxxxxxx Xxxxxxxxxx Xxxxxx, 000 00 Xxxxxxx, Xxxxxx. Further, you are also irrevocably authorised to provide the Lender from time to time with any other information whatsoever which they may require relating to the entry of the Vessel in the association.
This letter is governed by, and shall be construed in accordance with, English law.
_____________________________
For and on behalf of
BULK FREEDOM CORP.
85 (J18-185622/C)