PYXIS TANKERS INC.
Exhibit 4.4.4
Dated 23 October 2015
as Guarantor
and
COMMERZBANK AKTIENGESELLSCHAFT
as Lender
relating to
a Loan Agreement dated 26 September 2007
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Index |
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Clause |
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Page |
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1 |
Interpretation |
1 |
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2 |
2 |
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3 |
Liability as Principal and Independent Debtor |
2 |
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4 |
Expenses |
3 |
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5 |
Adjustment of Transactions |
3 |
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6 |
Payments |
3 |
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7 |
Interest |
3 |
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8 |
Subordination |
4 |
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9 |
Enforcement |
4 |
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10 |
Representations and Warranties |
4 |
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11 |
Undertakings |
6 |
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12 |
Judgments and Currency Indemnity |
8 |
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13 |
Set-off |
8 |
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14 |
Supplemental |
9 |
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15 |
Assignment |
10 |
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16 |
Notices |
10 |
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17 |
Invalidity of Loan Agreement |
11 |
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18 |
Governing Law and Jurisdiction |
11 |
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Schedule 1 |
13 |
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Execution Page |
14 |
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THIS GUARANTEE is made on 23 October 2016
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(1) |
PYXIS TANKERS INC., a corporation incorporated in the Republic of the ▇▇▇▇▇▇▇▇ Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ Islands (the "Guarantor") |
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(B) |
The execution and delivery to the Lender of this Guarantee is one of the conditions precedent to the continued availability of the facility under the said Loan Agreement. |
Words and expressions defined in the Loan Agreement shall have the same meanings when used in this Guarantee unless the context otherwise requires.
In this Guarantee:
"bankruptcy" includes a liquidation, receivership or administration and any form of suspension of payments, arrangement with creditors or reorganisation under any corporate or insolvency law of any country;
"Effective Date" has the meaning given to it in the Third Supplemental Agreement;
"Fleet Vessels" means any ships (including, but not limited to, the Ships and the Collateral Ship) from time to time directly or indirectly owned by the Guarantor and, in the singular means any of them;
"IPO" means any initial registered public offering, public listing, merger or reverse takeover transaction, floatation or similar public offering on a Stock Exchange in respect of the Guarantor;
"Loan Agreement" means the loan agreement dated 26 September 2007 referred to in Recital (A) and includes any existing or future amendments or supplements, whether made with the Guarantor's consent or otherwise; and
"Stock Exchange" means any of the stock exchanges of New York or London or Hong Kong individually or combined or any other stock exchange market acceptable to the Lender in its discretion, such acceptance not to be unreasonably withheld or delayed.
Clause 1.2 and 1.4 of the Loan Agreement apply, with any necessary modifications, to this Guarantee.
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2.1 |
Guarantee and indemnity |
The Guarantor unconditionally and irrevocably:
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(a) |
guarantees the due payment of all amounts payable by the Borrowers under or in connection with the Loan Agreement and every other Finance Document; |
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(b) |
undertakes to pay to the Lender, on the Lender's demand, any such amount which is not paid by the Borrowers when payable; and |
The Lender may serve more than one demand under Clause 2.1.
The Guarantor shall be liable under this Guarantee as a principal and independent debtor and accordingly it shall not have, as regards this Guarantee, any of the rights or defences of a surety.
Without limiting the generality of Clause 3.1, the Guarantor shall neither be discharged by, nor have any claim against the Lender in respect of:
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(b) |
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, the Finance Documents; |
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(c) |
any release or loss (even though negligent) of any right or Security Interest created by the Finance Documents; |
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(e) |
any other Finance Document or any Security Interest now being or later becoming void, unenforceable, illegal or invalid or otherwise defective for any reason, including a neglect to register it. |
The Guarantor shall pay to the Lender on its demand the amount of all expenses incurred by the Lender in connection with any matter arising out of this Guarantee or any Security Interest connected with it, including any advice, claim or proceedings relating to this Guarantee or such a Security Interest.
Clause 4.1 is without prejudice to the Guarantor's liabilities in respect of the Borrowers' obligations under clause 20 of the Loan Agreement and under similar provisions of other Finance Documents.
The Guarantor shall pay to the Lender on its demand any amount which the Lender is required, or agrees, to pay pursuant to any claim by, or settlement with, a trustee in bankruptcy of any of the Borrowers on the ground that the Loan Agreement, or a payment by any of the Borrowers, was invalid or on any similar ground.
Any amount due under this Guarantee shall be paid:
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(d) |
free and clear of any tax deduction except a tax deduction which the Guarantor is required by law to make. |
If the Guarantor is required by law to make a tax deduction, the amount due to the Lender shall be increased by the amount necessary to ensure that the Lender receives and retains a net amount which, after the tax deduction, is equal to the full amount that it would otherwise have received.
Any amount due under this Guarantee shall carry interest after the date on which the Lender demands payment of it until it is actually paid, unless interest on that same amount also accrues under the Loan Agreement.
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Interest under this Guarantee shall be calculated and accrue in the same way as interest under clause 6 of the Loan Agreement.
For the avoidance of doubt, it is confirmed that this Guarantee covers all interest payable under the Loan Agreement, including that payable under clause 6 of the Loan Agreement.
All rights which the Guarantor at any time has (whether in respect of this Guarantee or any other transaction) against any of the Borrowers, any other Security Party or their respective assets shall be fully subordinated to the rights of the Lender under the Finance Documents; and in particular, the Guarantor shall not throughout the Security Period:
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(c) |
claim to set-off any such amount against any amount payable by the Guarantor to any of the Borrowers or any other Security Party; or |
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(d) |
claim any subrogation or other right in respect of any Finance Document or any sum received or recovered by the Lender under a Finance Document. |
The Lender will not need to commence any proceedings under, or enforce any Security Interest created by, the Loan Agreement or any other Finance Document before claiming or commencing proceedings under this Guarantee.
However, as against the Guarantor:
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(a) |
any final and un-appealable judgment or order of a court in England or the ▇▇▇▇▇▇▇▇ Islands in connection with the Loan Agreement; and |
shall be binding and conclusive as to all matters of fact and law to which it relates.
The Guarantor represents and warrants to the Lender as follows.
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The Guarantor is duly incorporated and validly existing and in good standing under the laws of the ▇▇▇▇▇▇▇▇ Islands.
The Guarantor has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:
All the consents referred to in Clause 10.3 remain in force and nothing has occurred which makes any of them liable to revocation.
This Guarantee constitutes the Guarantor's legal, valid and binding obligations enforceable against the Guarantor in accordance with its terms subject to any relevant insolvency laws affecting creditors' rights generally.
The execution by the Guarantor of this Guarantee and its compliance with this Guarantee will not involve or lead to a contravention of:
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(c) |
any contractual or other obligation or restriction which is binding on the Guarantor or any of its assets. |
All payments which the Guarantor is liable to make under this Guarantee may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.
To the knowledge of the Guarantor, no Event of Default or Potential Event of Default has occurred.
All information which has been provided in writing by or on behalf of the Guarantor to the Lender in connection with any Finance Document satisfied the requirements of Clause 11.2; all audited and unaudited accounts which have been so provided satisfied the requirements of Clause 11.4(a); and there has been no material adverse change in the financial position or state of affairs of the Guarantor from that disclosed in the latest of those accounts.
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No legal or administrative action against the Guarantor has been commenced or taken or, to the Guarantor's knowledge, is likely to be commenced or taken which, in either case, if adversely determined, would be reasonably expected to have a material adverse effect on the Guarantor’s financial position.
The Guarantor undertakes with the Lender to comply with the following provisions of this Clause 11 at all times during the Security Period, except as the Lender may otherwise permit.
All financial and other information which is provided in writing by or on behalf of the Guarantor under or in connection with this Guarantee will be true and not misleading and will not omit any material fact or consideration.
The Guarantor will send to the Lender:
All accounts (audited and unaudited) delivered under Clause 11.3 will:
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(a) |
be prepared in accordance with all applicable laws and generally accepted accounting principles consistently applied; |
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(b) |
give a true and fair view of the state of affairs of the Guarantor at the date of those accounts and of its profit for the period to which those accounts relate; and |
The Guarantor will send to the Lender, at the same time as they are despatched, copies of all communications which are despatched to the Guarantor's shareholders or creditors or any class of them, which are material to the terms of this Guarantee and/or the obligations of the Guarantor hereunder, except for any communications which are publicly available.
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The Guarantor will maintain in force and promptly obtain or renew, and will promptly send certified copies to the Lender of, all consents required:
and the Guarantor will comply with the terms of all such consents.
The Guarantor will provide the Lender with details of any legal or administrative action involving the Guarantor as soon as such action is instituted or it becomes apparent to the Guarantor that it is likely to be instituted, unless it is clear that the legal or administrative action cannot be considered material in the context of this Guarantee.
The Guarantor will notify the Lender as soon as the Guarantor becomes aware of:
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(b) |
any matter which indicates that an Event of Default or a Potential Event of Default may have occurred, |
and will thereafter keep the Lender fully up-to-date with all developments.
The Guarantor will maintain its separate corporate existence, except as permitted by clause 11.13 and remain in good standing under the laws of the ▇▇▇▇▇▇▇▇ Islands.
The Guarantor shall procure that neither of the Borrowers will create or permit to arise any Security Interest over any asset present or future except Security Interests created or permitted by the Finance Documents and except for Permitted Security Interests.
The Guarantor:
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(b) |
will not make any substantial change to the nature of its business from that existing at the date of this Guarantee. |
The Guarantor shall not, and shall procure that the Borrowers will not, enter into any form of merger, sub-division, amalgamation or other reorganisation other than in relation to the IPO.
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The Guarantor shall remain the legal holder and direct beneficial owner of the entire issued and allotted share capital of the Borrowers, free from any Security Interest, except that created in favour of the Lender.
The Guarantor undertakes:
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(a) |
to maintain (either directly or through its subsidiaries) in bank accounts held with the Lender or any other bank, on each of December 31, 2015 and March 31, 2016, cash deposits of a minimum amount of the higher of (i) $4,500,000 in aggregate and (ii) $750,000 per Fleet Vessel; and |
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(b) |
to maintain (either directly or through its subsidiaries) in bank accounts held with the Lender or any other bank, on June 30, 2016 and thereafter on each of September 30, December 31, March 31 and June 30 of each year during the Security Period, cash deposits of a minimum amount of the higher of (i) $5,000,000 in aggregate and (ii) $750,000 per Fleet Vessel (together, the "Minimum Cash") of which $2,500,000 shall be freely available and unencumbered cash under deposit by the Guarantor. |
At any time that the number of Fleet Vessels exceeds ten in total, the Minimum Cash requirement shall be reduced to an amount of $500,000 for each Fleet Vessel that exceeds ten.
If the Lender requires evidence of the Minimum Cash applicable on a date referred to hereinabove following receipt of the respective Compliance Certificate provided to the Lender under Clause 11.3(c) and referring to the period ending on such date (the “Specified Date”), the Guarantor will provide the Lender with copies of bank statements evidencing the existence of the Minimum Cash on such Specified Date within 5 Business Days of the Lender's relevant written request.
This Guarantee shall cover any amount payable by any of the Borrowers under or in connection with any judgment relating to the Loan Agreement.
In addition, clause 21.4 of the Loan Agreement shall apply, with any necessary adaptations, in relation to this Guarantee.
After the occurrence of an Event of Default, which is continuing, the Lender may without prior notice:
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(iii) |
enter into any other transaction or make any entry with regard to the credit balance which the Lender considers appropriate. |
The Lender shall not be obliged to exercise any of its rights under Clause 13.1; and those rights shall be without prejudice and in addition to any right of set‑off, combination of accounts, charge, lien or other right or remedy to which the Lender is entitled (whether under the general law or any document).
This Guarantee shall remain in force as a continuing security at all times during the Security Period.
The Lender's rights under and in connection with this Guarantee are cumulative, may be exercised as often as appears expedient and shall not be taken to exclude or limit any right or remedy conferred by law.
If the Lender omits to exercise, delays in exercising or invalidly exercises any of its rights under this Guarantee, that shall not impair that or any other right of the Lender under this Guarantee.
If any provision of this Guarantee is or subsequently becomes void, illegal, unenforceable or otherwise invalid, that shall not affect the validity, legality or enforceability of its other provisions.
This Guarantee shall not impair, nor be impaired by, any other guarantee, any Security Interest or any right of set-off or netting or to combine accounts which the Lender may now or later hold in connection with the Loan Agreement.
The Guarantor agrees with the Lender to be bound by those provisions of the Loan Agreement which are applicable to it as a Security Party where the context requires in the same way as if those provisions had been set out (with any necessary modifications) in this Guarantee but in case of any conflict between the Loan Agreement and this Guarantee, the provisions of this Guarantee shall prevail.
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Any Security Interest which the Guarantor creates (whether at the time at which it signs this Guarantee or at any later time) to secure any liability under this Guarantee shall be a principal and independent security, and Clauses 3 and 17 shall, with any necessary modifications, apply to it, notwithstanding that the document creating the Security Interest neither describes it as a principal or independent security nor includes provisions similar to Clauses 3 and 17.
Clauses 3 and 17 shall also apply to any right of set-off or netting or to combine accounts which the Guarantor creates by an agreement entered into at the time of this Guarantee or at any later time (notwithstanding that the agreement does not include provisions similar to Clauses 3 and 17), being an agreement referring to this Guarantee.
A person who is not a party to this Guarantee has no right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or to enjoy the benefit of any term of this Guarantee.
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14.10 |
Effective Date |
The obligations of the Guarantor under this Guarantee shall, unless otherwise provided under this Guarantee, take effect as of the Effective Date whereupon this Guarantee shall become in full force and effect and the Guarantor liable hereunder.
The Lender may assign its rights under and in connection with this Guarantee, (provided that any costs will be for the Transferee Lender) at no cost to the Guarantor, to the same extent as it may assign its rights under and subject to the provisions of the Loan Agreement.
Any notice or demand to the Guarantor under or in connection with this Guarantee shall be given by letter or fax at:
c/o Pyxis Maritime Corp.
59 Konstantinou ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Fax No: ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
or to such other address which the Guarantor may notify to the Lender.
Clauses 28.3, 28.4 and 28.5 of the Loan Agreement apply to any notice or demand under or in connection with this Guarantee.
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A demand under this Guarantee shall be valid notwithstanding that it is served:
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(a) |
on the date on which the amount to which it relates is payable by the Borrowers under the Loan Agreement; |
and a demand under this Guarantee may refer to all amounts payable under or in connection with the Loan Agreement without specifying a particular sum or aggregate sum.
Any notice to the Lender under or in connection with this Guarantee shall be sent to the same address and in the same manner as notices to the Lender under the Loan Agreement.
In the event of:
this Guarantee shall cover any amount which would have been or become payable under or in connection with the Loan Agreement if the Loan Agreement had been and remained entirely valid, legal and enforceable, or the relevant Borrower had not suffered bankruptcy, or any combination of such events or circumstances, as the case may be, and the relevant Borrower had remained fully liable under it for liabilities whether invalidly incurred or validly incurred but subsequently retrospectively invalidated; and references in this Guarantee to amounts payable by any of the Borrowers under or in connection with the Loan Agreement shall include references to any amount which would have so been or become payable as aforesaid.
Clause 17.1 also applies to each of the other Finance Documents to which the Borrowers are parties.
This Guarantee and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
Subject to Clause 18.3, the courts of England shall have exclusive jurisdiction to settle any Dispute.
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Clause 18.2 is for the exclusive benefit of the Lender, which reserves the rights:
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(a) |
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and |
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(b) |
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England. |
The Guarantor shall not commence any proceedings in any country other than England in relation to a Dispute.
The Guarantor irrevocably appoints Atlas Maritime Services Limited at its registered office for the time being, presently at Enterprise House, ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with a Dispute.
Nothing in this Clause 18 shall exclude or limit any right which the Lender may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
In this Clause 18, "proceedings" means proceedings of any kind, including an application for a provisional or protective measure and a "Dispute" means any dispute arising out of or in connection with this Guarantee (including a dispute relating to the existence, validity or termination of this Guarantee) or any non-contractual obligation arising out of or in connection with this Guarantee.
This Guarantee has been entered into on the date stated at the beginning of this Guarantee.
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To: |
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Commerzbank Aktiengesellschaft |
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▇▇▇▇▇▇▇▇▇ ▇▇ |
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▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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▇▇▇▇▇▇▇▇ of Germany |
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From: |
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[l] |
Dated:[l]
Dear Sirs
We refer to:
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(a) |
a loan agreement dated 26 September 2007 (as amended by a supplemental agreement dated 28 May 2010, a second supplemental agreement dated 1 December 2010, a third supplemental agreement dated [l] October 2015 and as may be further amended and supplemented from time to time, together the “Agreement”) made between (i) Thirdone Corp. and Secondone Corp. as joint and several borrowers and (ii) yourselves, as lender; and |
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(b) |
a guarantee dated [l] October 2015 (the “Guarantee”) made between (1) ourselves, as guarantor and (2) yourselves, as lender. |
This is a Compliance Certificate and attached hereto are the accounts which will provide evidence of compliance. Terms defined in the Agreement and the Guarantee have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
[We refer to paragraph (a) of clause 11.3 of the Guarantee and hereby attach the following certified documents the audited accounts of the Guarantor for the financial year ended [l].]
[We refer to paragraph (b) clause 11.3 of the Guarantee and hereby attach the following certified documents the unaudited accounts of the Guarantor for the 3-month period ended [l]].
We confirm that no Event of Default or Potential Event of Default has occurred or is continuing.
____________________________
[Director]/[Chief Financial Officer]
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GUARANTOR |
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SIGNED by |
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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/s/ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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for and on behalf of |
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in the presence of: |
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Konstantinos Mexias |
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LENDER |
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SIGNED by |
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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/s/ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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for and on behalf of |
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COMMERZBANK AKTIENGESELLSCHAFT |
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in the presence of: |
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Konstantinos Mexias |
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