Exhibit
4.21
Dated
23 May 2024
US$23,000,000
TERM
LOAN FACILITY
CALypso
Shipholding S.A.
as
Borrower
and
GLOBUS
MAritime Limited
as
Guarantor
and
▇▇▇▇▇▇▇▇▇▇
Maritime S.A.
as
Original Lender
FACILITY
AGREEMENT
relating
to
the financing of m.v. "GLBS HERO"
Index
Clause Page
| Section
1 Interpretation |
2 |
| 1 Definitions
and Interpretation |
2 |
| Section
2 The Facility |
23 |
| 2 The
Facility |
23 |
| 3 Purpose |
23 |
| 4 Conditions
of Utilisation |
23 |
| Section
3 Utilisation |
25 |
| 5 Utilisation |
25 |
| Section
4 Repayment, Prepayment and Cancellation |
27 |
| 6 Repayment |
27 |
| 7 Prepayment
and Cancellation |
27 |
| Section
5 Costs of Utilisation |
30 |
| 8 Interest |
30 |
| 9 Interest
Periods |
31 |
| 10 Changes
to the Calculation of Interest |
31 |
| 11 Fees |
33 |
| Section
6 Additional Payment Obligations |
34 |
| 12 Tax
Gross Up and Indemnities |
34 |
| 13 Increased
Costs |
37 |
| 14 Other
Indemnities |
39 |
| 15 Costs
and Expenses |
41 |
| Section
7 Guarantee |
43 |
| 16 Guarantee
and Indemnity |
43 |
| Section
8 Representations, Undertakings and Events of Default |
46 |
| 17 Representations |
46 |
| 18 Information
Undertakings |
52 |
| 19 General
Undertakings |
55 |
| 20 Insurance
Undertakings |
61 |
| 21 Ship
Undertakings |
66 |
| 22 Security
Cover |
72 |
| 23 Application
of Earnings |
74 |
| 24 Events
of Default |
74 |
| Section
9 Changes to the Parties |
79 |
| 25 Changes
to the Lender |
79 |
| 26 Changes
to the Transaction Obligors |
80 |
| Section
10 Administration |
81 |
| 27 Payment
Mechanics |
81 |
| 28 Set-Off |
83 |
| 29 Conduct
of Business by the Lender |
83 |
| 30 Bail-In |
83 |
| 31 Notices |
83 |
| 32 Calculations
and Certificates |
85 |
| 33 Partial
Invalidity |
86 |
| 34 Remedies
and Waivers |
86 |
| 35 Entire
Agreement |
86 |
| 36 Settlement
or Discharge Conditional |
86 |
| 37 Irrevocable
Payment |
86 |
| 38 Confidential
Information |
87 |
| 39 Confidentiality
of Funding Rates |
89 |
| 40 Amendments |
91 |
| 41 Counterparts |
93 |
| Section
11 Governing Law and Enforcement |
94 |
| 42 Governing
Law |
94 |
| 43 Enforcement |
94 |
Schedules
| Schedule
1 The Parties |
95 |
| Part
A The Obligors |
95 |
| Part
B The Original Lender |
96 |
| Schedule
2 Conditions Precedent |
97 |
| Part
A Conditions precedent to Utilisation Request |
97 |
| Part
B Conditions precedent to Utilisation |
99 |
| Schedule
3 Utilisation Request |
101 |
| Schedule
4 Timetables |
102 |
Execution
THIS
AGREEMENT is made on 23 May 2024
Parties
| (1) | Calypso
Shipholding S.A., a corporation incorporated under the laws of ▇▇▇▇▇▇▇▇ Islands with
whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro
MH96960, ▇▇▇▇▇▇▇▇ Islands as borrower (the "Borrower") |
| (2) | Globus
Maritime Limited, a corporation duly domesticated under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake
Island, MH96960, Majuro, ▇▇▇▇▇▇▇▇ Islands and whose common
shares are currently listed on the "Nasdaq Capital Market" under the trading symbol
"GLBS" as guarantor (the "Guarantor") |
| (3) | ▇▇▇▇▇▇▇▇▇▇
Maritime S.A., a corporation incorporated under the laws of the Republic of Panama having
its resident office at 53rd E Street Urbanizacion Marbella, MMG Tower, 16th
Floor, Panama, Republic of Panama, 100% owned and controlled by BOT LEASE CO., LTD.,
of Japan, as lender (the "Original Lender") |
Background
The
Lender has agreed to make available to the Borrower a facility of up to US$23,000,000 for the purpose of re-financing the Ship upon the
terms and conditions of this Agreement.
Operative
Provisions
Section
1
Interpretation
| 1 | Definitions
and Interpretation |
In
this Agreement:
"Affiliate"
means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding
Company.
"Approved
Brokers" means the firms of insurance brokers approved in writing by the Lender.
"Approved
Classification" means NS*(CSR, BC-A, BC-XII, GRAB 20, EQ C DG, PSPC-WBT, NC)(ESP)(HCM-GBS)(IWS)(EA)(IHM)(NOx-III(SCR)) and MNS*
with Nippon Kaiji Kyokai or the equivalent classification with another Approved Classification Society.
"Approved
Classification Society" means American Bureau of Shipping, Bureau Veritas, Det Norske Veritas, Lloyd's Register, Nippon Kaiji
Kyokai or any other classification society approved in writing by the Lender.
"Approved
Flag" means ▇▇▇▇▇▇▇▇ Islands or such other flag and, if applicable, port of registry approved in writing by the Lender and a
reference to "the Approved Flag" shall be a reference to the flag and, if applicable port of registry, under which the Ship
is then flagged with the agreement of the Lender.
"Approved
Manager" means Globus Shipmanagement Corp., a corporation incorporated under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands,
having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ Islands with companies registration
number 19605 or any Affiliate of the Guarantor as notified to the Lender or any other person approved in writing by the Lender (such
approval not to be unreasonably withheld or delayed) as the commercial and technical manager of the Ship.
"Approved
Valuer" means MB Shipbrokers K/S, ▇▇▇▇▇▇▇▇▇ Platou, Breamer ACM or Arrow Brokers and any other firm or firms of independent
sale and purchase shipbrokers with the prior written consent of the Lender (such consent not to be unreasonably withheld).
"Article
55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions
and investment firms.
"Authorisation"
means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, legalisation or registration.
"Availability
Period" means the period from and including the date of this Agreement to and including 31 May 2024.
"Available
Facility" means the Commitment minus:
| (a) | the
amount of the outstanding Loan; and |
| (b) | in
relation to any proposed Utilisation, the amount of the Loan that is due to be made on or
before the proposed Utilisation Date. |
"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 BRRD, the relevant implementing law or regulation as described in the EU Bail-In
Legislation Schedule from time to time; |
| (b) | in
relation to any state other than such an EEA Member Country and the United Kingdom, 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; and |
| (c) | in
relation to the United Kingdom, the UK Bail-In Legislation. |
"Balloon"
shall have the meaning ascribed thereto in Clause 6.1 (Repayment of Loan).
"Break
Costs" means the amount (if any) by which:
| (a) | the
interest which the Lender should have received for the period from the date of receipt of
all or any part of the Loan or an Unpaid Sum to the last day of the current Interest Period
in relation to the Loan, the relevant part of the Loan or that Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that Interest Period |
exceeds
| (b) | the
amount which the Lender would be able to obtain by placing an amount equal to the principal
amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Market
for a period starting on the Business Day following receipt or recovery and ending on the
last day of the current Interest Period. |
"Business
Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in
| (a) | New
York, Athens, London, Zurich and Tokyo; and |
| (b) | (in
relation to the fixing of an interest rate) which is a US Government Securities Business
Day. |
"Central
Bank Rate" means:
| (a) | The
short-term interest rate target set by the US Federal Open Market Committee as published
by the Federal Reserve Bank of New York from time to time; or |
| (b) | if
that target is not a single figure, the arithmetic mean of: |
| (i) | the
upper bound of the short-term interest rate target range set by the US Federal Open Market
Committee and published by the Federal Reserve Bank of New York; and |
| (ii) | the
lower bound of that target range. |
"Central
Bank Rate Adjustment" means, in relation to the Central Bank Rate prevailing at close of business on any US Government Securities
Business Day, the 20 per cent. trimmed arithmetic mean (calculated by the Lender) of the Central Bank Rate Spreads for the five most
immediately preceding US Government Securities Business Days for which three Month Term SOFR is available.
"Central
Bank Rate Spreads" means, in relation to any US Government Securities Business Day, the difference (expressed as a percentage
rate per annum) calculated by the Lender of:
| (a) | three
Month Term SOFR for that US Government Securities Business Day; and |
| (b) | the
Central Bank Rate prevailing at close of business on that US Government Securities Business
Day. |
"Charter"
means any charter relating to the Ship, or other contract for its employment, whether or not already in existence.
"Charter
Guarantee" means any guarantee, bond, letter of credit or other instrument (whether or not already issued) supporting a Charter.
"Code"
means the US Internal Revenue Code of 1986.
"Commitment"
means US$23,000,000, to the extent not cancelled or reduced or utilised under this Agreement.
"Confidential
Information" means all information relating to any Transaction Obligor, the Group, the Finance Documents or the Facility of
which the Lender becomes aware in its capacity as, or for the purpose of becoming, the Lender or which is received by the Lender in relation
to, or for the purpose of becoming the Lender under, the Finance Documents or the Facility directly or indirectly from any member of
the Group or any of its advisers in whatever form, and includes information given orally and any document, electronic file or any other
way of representing or recording information which contains or is derived or copied from such information but excludes:
| (i) | is
or becomes public information other than as a direct or indirect result of any breach by
the Lender of Clause 38 (Confidential Information); or |
| (ii) | is
identified in writing at the time of delivery as non-confidential by any member of the Group
or any of its advisers; or |
| (iii) | is
known by the Lender before the date the information is disclosed to it by any member of the
Group or any of its advisers or is lawfully obtained by the Lender after that date, from
a source which is, as far as the Lender is aware, unconnected with the Group and which, in
either case, as far as the Lender is aware, has not been obtained in breach of, and is not
otherwise subject to, any obligation of confidentiality; and |
"Confidentiality
Undertaking" means a confidentiality undertaking in substantially the appropriate form recommended by the LMA from time to time
or in any other form agreed between the Borrower and the Lender.
"Default"
means an Event of Default or a Potential Event of Default.
"Delegate"
means any delegate, agent, attorney or co-trustee appointed by the Lender.
"Disclosure
Letter" means a letter executed by each Borrower and the Guarantor and acknowledged by the Lender.
"Disclosed
Persons" means:
| (a) | the
person set out in the Disclosure Letter as having control of the Guarantor; |
| (b) | an
entity directly or indirectly wholly owned by the person described in paragraph (a) above
as set out in the Disclosure Letter; and |
| (c) | the
immediate family members of the person described in paragraph (a) as identified in the Disclosure
Letter. |
"Disruption
Event" means either or both of:
| (a) | a
material disruption to those payment or communications systems or to those financial markets
which are, in each case, required to operate in order for payments to be made in connection
with the Facility (or otherwise in order for the transactions contemplated by the Finance
Documents to be carried out) which disruption is not caused by, and is beyond the control
of, any of the Parties; or |
| (b) | the
occurrence of any other event which results in a disruption (of a technical or systems-related
nature) to the treasury or payments operations of a Party preventing that, or any other,
Party: |
| (i) | from
performing its payment obligations under the Finance Documents; or |
| (ii) | from
communicating with other Parties in accordance with the terms of the Finance Documents, |
and
which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
"Document
of Compliance" has the meaning given to it in the ISM Code.
"dollars"
and "$" mean the lawful currency, for the time being, of the United States of America.
"Earnings"
means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower or the Lender and which
arise out of or in connection with or relate to the use or operation of the Ship, including (but not limited to):
| (a) | the
following, save to the extent that any of them is, with the prior written consent of the
Lender, ▇▇▇▇▇▇ or shared with any other person: |
| (i) | all
freight, hire and passage moneys including, without limitation, all moneys payable under,
arising out of or in connection with a Charter or a Charter Guarantee; |
| (ii) | the
proceeds of the exercise of any lien on sub-freights; |
| (iii) | compensation
payable to the Borrower or the Lender in the event of requisition of the Ship for hire or
use; |
| (iv) | remuneration
for salvage and towage services; |
| (v) | demurrage
and detention moneys; |
| (vi) | without
prejudice to the generality of sub-paragraph (i) above, damages for breach (or payments for
variation or termination) of any charterparty or other contract for the employment of the
Ship; |
| (vii) | all
moneys which are at any time payable under any Insurances in relation to loss of hire; |
| (viii) | all
monies which are at any time payable to the Borrower in relation to general average contribution;
and |
| (b) | if
and whenever the Ship is employed on terms whereby any moneys falling within sub-paragraphs
(i) to (viii) of paragraph (a) above are pooled or shared with any other person, that proportion
of the net receipts of the relevant pooling or sharing arrangement which is attributable
to the Ship. |
"EEA
Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
"Environmental
Approval" means any present or future permit, ruling, variance or other Authorisation required under Environmental Law.
"Environmental
Claim" means any claim by any governmental, judicial or regulatory authority or any other person which arises out of an Environmental
Incident relating to any Environmental Law and, for this purpose, "claim" includes a claim for damages, compensation,
contribution, injury, fines, losses and penalties or any other similar payments in respect of a lability exceeding US$5,000,000, including
in relation to clean-up and removal, if similar to the foregoing; an order or direction to take, or not to take, certain action or to
desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.
"Environmental
Incident" means:
| (a) | any
release, emission, spill or discharge of Environmentally Sensitive Material whether within
the Ship or from the Ship into any other vessel or into or upon the air, water, land or soils
(including the seabed) or surface water; or |
| (b) | any
incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged
into or upon the air, water, land or soils (including the seabed) or surface water from a
vessel other than the Ship and which involves a collision between the Ship and such other
vessel or some other incident of navigation or operation, in either case,
in connection with which the Ship is actually liable to be arrested, attached, detained or injuncted and/or the Ship and/or any Transaction
Obligor and/or any operator or manager of the Ship is at fault or otherwise liable to any legal or administrative action; or |
| (c) | any
other incident in which Environmentally Sensitive Material is released, emitted, spilled
or discharged into or upon the air, water, land or soils (including the seabed) or surface
water otherwise than from the Ship and in connection with which the Ship is actually liable
to be arrested and/or where any Transaction Obligor and/or any operator or manager of the
Ship is at fault or otherwise liable to any legal or administrative action. |
"Environmental
Law" means any present or future law relating to vessel disposal, energy efficiency, carbon reduction, emissions, emissions
trading, pollution or protection of human health or the environment, to conditions in the workplace, to the carriage, generation, handling,
storage, use, release or spillage of Environmentally Sensitive Material or to actual releases of Environmentally Sensitive Material,
in each case which are applicable to the Borrower and/or the Ship having regard to the usual market practice prevailing in the shipping
industry and for ships of a similar type as the Ship.
"Environmentally
Sensitive Material" means and includes all contaminants, oil, oil products, toxic substances and any other substance (including
any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"EU
Bail-In Legislation Schedule" means the document described as such and published by the LMA from time to time.
"EU
Ship Recycling Regulation" means Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013
on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC.
"Event
of Default" means any event or circumstance specified as such in Clause 24 (Events of Default).
"Facility"
means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).
"Facility
Office" means BOT LEASE CO., LTD. of ▇▇-▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇-▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇,
as the office through which the Lender will perform its obligations under this Agreement.
"Fallback
Interest Period" means one Month.
"FATCA"
means:
| (a) | sections
1471 to 1474 of the Code or any associated regulations; |
| (b) | any
treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental
agreement between the US and any other jurisdiction, which (in either case) facilitates the
implementation of any law or regulation referred to in paragraph (a) above; or |
| (c) | any
agreement pursuant to the implementation of any treaty, law or regulation referred to in
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
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.
"Finance
Document" means:
| (b) | the
Utilisation Request; |
| (c) | any
Security Document; |
| (d) | any
other document which is executed for the purpose of establishing any priority or subordination
arrangement in relation to the Secured Liabilities; or |
| (e) | any
other document designated as such by the Lender and the Borrower. |
"Financial
Indebtedness" means any indebtedness for or in relation to:
| (b) | any
amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
| (c) | any
amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures,
loan stock or any similar instrument; |
| (d) | the
amount of any liability in relation to any lease or hire purchase contract which would, in
accordance with GAAP, be treated as a balance sheet liability (other than any liability in
respect of a lease or hire purchase contract which would, in accordance with GAAP in force
prior to 1 January 2019, have been treated as an operating lease); |
| (e) | receivables
sold or discounted (other than any receivables to the extent they are sold on a non-recourse
basis); |
| (f) | any
amount raised under any other transaction (including any forward sale or purchase agreement)
of a type not referred to in any other paragraph of this definition having the commercial
effect of a borrowing; |
| (g) | any
derivative transaction entered into in connection with protection against or benefit from
fluctuation in any rate or price (and, when calculating the value of any derivative transaction,
only the marked to market value (or, if any actual amount is due as a result of the termination
or close-out of that derivative transaction, that amount) shall be taken into account); |
| (h) | any
counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary
letter of credit or any other instrument issued by a bank or financial institution; and |
| (i) | the
amount of any liability in relation to any guarantee or indemnity for any of the items referred
to in paragraphs (a) to (h) above. |
"Funding
Rate" means any individual rate notified by the Lender pursuant to sub-paragraph (ii) of paragraph (a) of Clause 10.3 (Cost
of funds).
"GAAP"
means international financial reporting standards as issued by the International Accounting Standards Board, including IFRS.
"General
Assignment" means the general assignment creating Security over the Earnings, the Insurances, any Requisition Compensation,
any Charter and any Charter Guarantee in agreed form.
"Group"
means:
| (a) | for
the purposes of the definition of "Transaction Obligor" but only when used in Clauses
17.21 (Compliance with Environmental Laws), 17.22 (No Environmental Claim),
19.4 (Environmental compliance), 19.5 (Environmental Claims) and 19.20 (Unlawfulness,
invalidity and ranking; Security imperilled), the Guarantor and its Subsidiaries at the
relevant time; and |
| (b) | in
all other cases, the Guarantor and the Borrower. |
"Historic
Term SOFR" means, in relation to the Loan or any part of the Loan, the most recent applicable Term SOFR for a period equal in
length to the Interest Period of the Loan or that part of the Loan and which is as of a day which is no more than three
US Government Securities Business Days before the Quotation Day.
"Holding
Company" means, in relation to a person, any other person in relation to which it is a Subsidiary.
"IFRS"
means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant
financial statements.
"Indemnified
Person" has the meaning given to it in Clause 14.2 (Other indemnities).
"Insurances"
means, in relation to the Ship:
| (a) | all
policies and contracts of insurance, including entries of the Ship in any protection and
indemnity or war risks association, effected in relation to the Ship, the Earnings or otherwise
in relation to the Ship whether before, on or after the date of this Agreement; and |
| (b) | all
rights and other assets relating to, or derived from, any of such policies, contracts or
entries, including any rights to a return of premium and any rights in relation to any claim
whether or not the relevant policy, contract of insurance or entry has expired on or before
the date of this Agreement. |
"Interest
Payment Date" has the meaning given to it in paragraph (a) of Clause 8.2 (Payment of interest).
"Interest
Period" means, in relation to the Loan or any part of the Loan, each period determined in accordance with Clause 9 (Interest
Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).
"Interpolated
Historic Term SOFR" means, in relation to the Loan or any part of the Loan, the rate (rounded to the same number of decimal
places as Term SOFR) which results from interpolating on a linear basis between:
| (i) | the
most recent applicable Term SOFR (as of a day which is not more than three US Government
Securities Business Days before the Quotation Day) for the longest period (for which Term
SOFR is available) which is less than the Interest Period of the Loan or that part of the
Loan; or |
| (ii) | if
no such Term SOFR is available for a period which is less than the Interest Period of the
Loan or that part of the Loan, the most recent SOFR for a day which is no more than five
US Government Securities Business Days (and no less than two US Government Securities Business
Days) before the Quotation Day; and |
| (b) | the
most recent applicable Term SOFR (as of a day which is not more than three
US Government Securities Business Days before the Quotation Day) for the shortest period
(for which Term SOFR is available) which exceeds the Interest Period of the Loan or that
part of the Loan. |
"Interpolated
Term SOFR" means, in relation to the Loan or any part of the Loan, the rate (rounded to the same number of decimal places as
Term SOFR) which results from interpolating on a linear basis between:
| (i) | the
applicable Term SOFR (as of the Specified Time) for the longest period (for which Term SOFR
is available) which is less than the Interest Period of the Loan or that part of the Loan;
or |
| (ii) | if
no such Term SOFR is available for a period which is less than the Interest Period of the
Loan or that part of the Loan, SOFR for the day which is two US Government Securities Business
Days before the Quotation Day; and |
| (b) | the
applicable Term SOFR (as of the Specified Time) for the shortest period (for which Term SOFR
is available) which exceeds the Interest Period of the Loan or that part of the Loan. |
"ISM
Code" means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention (including
the guidelines on its implementation), adopted by the International Maritime Organisation, as the same may be amended or supplemented
from time to time.
"ISPS
Code" means the International Ship and Port Facility Security (ISPS) Code as adopted by the International Maritime Organization's
(IMO) Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.
"ISSC"
means an International Ship Security Certificate issued under the ISPS Code.
"Inventory
of Hazardous Materials" means an inventory certificate or statement of compliance (as applicable) issued by the relevant classification
society or shipyard authority which is supplemented by a list of any and all materials known to be potentially hazardous utilised in
the construction of, or otherwise installed on, the Ship, pursuant to the requirements of the EU Ship Recycling Regulation.
"Legal
Reservations" means:
| (a) | the
principle that equitable remedies may be granted or refused at the discretion of a court
and the limitation of enforcement by laws relating to insolvency, reorganisation and other
laws generally affecting the rights of creditors; |
| (b) | the
time barring of claims under the Limitation Acts, the possibility that an undertaking to
assume liability for or indemnify a person against non-payment of UK stamp duty may be void
and defences of set-off or counterclaim; and |
| (c) | similar
principles, rights and defences under the laws of any Relevant Jurisdiction. |
"Lender"
means:
| (a) | the
Original Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become the Lender in accordance
with Clause 25 (Changes to the Lender), |
which
in each case has not ceased to be a Party in accordance with this Agreement.
"Limitation
Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
"LMA"
means the Loan Market Association or any successor organisation.
"Loan"
means the loan to be made available under the Facility or the aggregate principal amount outstanding for the time being of the borrowings
under the Facility and a "part of the Loan" means any part of the Loan as the context may require.
"Major
Casualty" means any casualty to the Ship in relation to which the claim or the aggregate of the claims against all insurers,
before adjustment for any relevant franchise or deductible, exceeds US$1,000,000 or the equivalent in any other currency.
"Management
Agreement" means the agreement dated 25 January 2024 and entered into between the Borrower and the Approved Manager regarding
the commercial and technical management of the Ship.
"Manager's
Undertaking" means the letter of undertaking from the Approved Manager subordinating the rights of the Approved Manager against
the Ship and the Borrower to the rights of the Lender in agreed form.
"Margin"
means 2.3 per cent. per annum.
"Market
Disruption Rate" means the Reference Rate.
"Market
Value" mean the market value of the Ship or vessel shown by the arithmetic mean average of the two valuations each prepared
by an Approved Valuer (one being appointed by the Lender and the other appointed by the Borrower):
| (a) | as
at a date not more than 14 days previously; |
| (b) | with
or without physical inspection of the Ship or vessel (as the Lender may require); and |
| (c) | on
the basis of a sale for prompt delivery for cash on normal arm's length commercial terms
as between a willing seller and a willing buyer, free of any Charter. |
"Material
Adverse Effect" means in the reasonable opinion of the Lender a material adverse effect on:
| (a) | the
business, operations, property or condition (financial or otherwise) of the Group as a whole;
or |
| (b) | the
ability of any Obligor to perform its material obligations under any Finance Document; or |
| (c) | the
validity or enforceability of, or the effectiveness or ranking of any Security granted or
intended to be granted pursuant to any of, the Finance Documents or the rights or remedies
of the Lender under any of the Finance Documents. |
"Month"
means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except
that:
| (a) | (subject
to paragraph (c) below) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month in which that period is
to end if there is one, or if there is not, on the immediately preceding Business Day; |
| (b) | if
there is no numerically corresponding day in the calendar month in which that period is to
end, that period shall end on the last Business Day in that calendar month; and |
| (c) | if
an Interest Period begins on the last Business Day of a calendar month, that Interest Period
shall end on the last Business Day in the calendar month in which that Interest Period is
to end. |
The
above rules will only apply to the last Month of any period.
"Mortgage"
means the first preferred ▇▇▇▇▇▇▇▇ Islands ship mortgage on the Ship in agreed form or any replacement first preferred or first priority
ship mortgage on the Ship under the laws of an Approved Flag in agreed form.
"Nasdaq
Market Tier" means the Nasdaq Global Select Market, the Nasdaq Global Market and the Nasdaq Capital Market.
"Obligor"
means the Borrower or the Guarantor.
"Original
Financial Statements" means in relation to the Guarantor, the audited consolidated financial statements of the Group for its
financial year ended December 31, 2023.
"Original
Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date
of this Agreement.
"Overseas
Regulations" means the Overseas Companies Regulations 2009 (SI 2009/1801).
"Participating
Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation
of the European Union relating to Economic and Monetary Union.
"Party"
means a party to this Agreement.
"Perfection
Requirements" means the making or procuring of filings, stampings, registrations, notarisations, endorsements, translations
and/or notifications of any Finance Document (and/or any Security created under it) necessary for the validity, enforceability (as against
the relevant Obligor or any relevant third party) and/or perfection of that Finance Document.
"Permitted
Charter" means a Charter:
| (a) | which
is a time, voyage or consecutive voyage charter; |
| (b) | the
duration of which does not exceed and is not capable of exceeding, by virtue of any optional
extensions, 12 months plus a redelivery allowance of not more than 30 days; |
| (c) | which
is entered into on bona fide arm's length terms at the time at which the Ship is fixed;
and |
| (d) | in
relation to which not more than two months' hire is payable in advance, |
and
any other Charter which is approved in writing by the Lender.
"Permitted
Financial Indebtedness" means:
| (a) | any
Financial Indebtedness incurred under the Finance Documents; and |
| (b) | any
Financial Indebtedness that is approved by the Lender on such terms and conditions as it
may agree in its absolute discretion; and |
| (c) | any
Financial Indebtedness incurred in the ordinary course of the Guarantor’s business
(including guaranteeing the obligations of any member of the Group or other companies controlled
by it). |
"Permitted
Security" means:
| (a) | Security
created by the Finance Documents or otherwise with the prior written consent of the Lender; |
| (b) | liens
for unpaid master's and crew's wages in accordance with first class ship ownership and management
practice and not being enforced through arrest; |
| (d) | liens
for master's disbursements incurred in the ordinary course of trading in accordance with
first class ship ownership and management practice and not being enforced through arrest; |
| (e) | Security
over the shares of any member of the Group (other than the Borrower) created by the Guarantor
in the ordinary course of its business as security in respect of any loans granted to such
members of the Group by other banks or financial institutions; and |
| (f) | any
other lien arising by operation of law or otherwise in the ordinary course of the operation,
repair or maintenance of the Ship: |
| (i) | not
as a result of any default or omission by the Borrower |
| (ii) | not
being enforced through arrest; and |
| (iii) | subject,
in the case of liens for repair or maintenance, to Clause 21.16 (Restrictions on chartering,
appointment of managers etc.), |
provided
such lien does not secure amounts more than 30 days overdue (unless the overdue amount is being contested in good faith by appropriate
steps and for the payment of which adequate reserves are held and such lien is unlikely to give rise to a material risk of the Ship or
any interest in it being seized, sold, forfeited or lost).
"Potential
Event of Default" means any event or circumstance specified in Clause 24 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the
foregoing) be an Event of Default.
"Prohibited
Person" means any person who is the subject of Sanctions (whether designated by name or by reason of being included in a class
of persons to whom the applicable Sanctions apply in accordance with their terms).
"Quotation
Day" means:
| (a) | subject
to paragraph (b) below, in relation to any period for which an interest rate is to be determined,
two US Government Securities Business Days before the first day of that period unless market
practice differs in the relevant syndicated loan market in which case the Quotation Day will
be determined by the Lender in accordance with that market practice (and if quotations would
normally be given on more than one day, the Quotation Day will be the last of those days);
or |
| (b) | if
the Reference Rate, is or is based on, the Central Bank Rate, two US Government Securities
Business Days before the first day of that period. |
"Receiver"
means a receiver or receiver and manager or administrative receiver of the whole or any part of the Security Assets.
"Reference
Rate" means, in relation to the Loan or any part of the Loan:
| (a) | the
applicable Term SOFR as of the Specified Time and for a period equal in length to the Interest
Period of the Loan or that part of the Loan; or |
| (b) | as
otherwise determined pursuant to Clause 10.1 (Unavailability of Term SOFR), |
and
if, in either case, that rate is less than zero, the Reference Rate shall be deemed to be zero.
"Related
Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager
or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment
manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
"Relevant
Jurisdiction" means, in relation to a Transaction Obligor:
| (a) | its
Original Jurisdiction; |
| (b) | any
jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction
Security created, or intended to be created, by it is situated; |
| (c) | any
jurisdiction where it conducts its business; and |
| (d) | the
jurisdiction whose laws govern the perfection of any of the Security Documents entered into
by it. |
"Relevant
Market" means the market for overnight cash borrowing collateralised by US Government Securities.
"Repayment
Date" means each date on which a Repayment Instalment is required to be paid under Clause 6.1 (Repayment of Loan).
"Repayment
Instalment" has the meaning given to it in Clause 6.1 (Repayment of Loan).
"Repeating
Representation" means each of the representations set out in Clause 17 (Representations) except Clause 17.10 (Insolvency),
Clause 17.11 (No filing or stamp taxes), Clause 17.12 (Deduction of Tax) and Clause 17.25 (Taxes paid) and any representation
of any Transaction Obligor made in any other Finance Document that is expressed to be a "Repeating Representation" or is otherwise
expressed to be repeated.
"Representative"
means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"Requisition"
means:
| (a) | any
expropriation, confiscation, requisition (excluding a requisition for hire or use which does
not involve a requisition for title) or acquisition of the Ship, whether for full consideration,
a consideration less than its proper value, a nominal consideration or without any consideration,
which is effected (whether de jure or de facto) by any government or official
authority or by any person or persons claiming to be or to represent a government or official
authority; and |
| (b) | any
capture or seizure of the Ship (including any hijacking or theft) by any person whatsoever. |
"Requisition
Compensation" includes all compensation or other moneys payable to the Borrower by reason of any Requisition or any arrest or
detention of the Ship in the exercise or purported exercise of any lien or claim.
"Resolution
Authority" means anybody which has authority to exercise any Write-down and Conversion Powers.
"Safety
Management Certificate" has the meaning given to it in the ISM Code.
"Safety
Management System" has the meaning given to it in the ISM Code.
"Sanctioned
Country" means a country or territory whose government is the target of Sanctions or that is subject to comprehensive country-wide
or territory-wide Sanctions (including, without limitation, as regards United States Sanctions, Cuba, Greece, Syria, Iran, North Korea,
Crimea and Venezuela).
"Sanctioned
Ship" means a ship which is the subject of Sanctions.
"Sanctions"
means any sanctions (including US "secondary 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
by law or regulation of the United Kingdom, the Council of the European Union, the United
Nations or its Security Council or the United States of America or Japan; or |
| (b) | otherwise
imposed by any law or regulation binding on a Transaction Obligor or to which a Transaction
Obligor is subject. |
"Sanctions
Advisory" means the Sanctions Advisory for the Maritime Industry, Energy and Metals Sectors, and Related Communities issued
May 14, 2020 by the US Department of the Treasury, Department of State and Coast Guard, as may be amended or supplemented, and any similar
future advisory.
"Secured
Liabilities" means all present and future obligations and liabilities, (whether actual or contingent and whether owed jointly
or severally or in any other capacity whatsoever) of each Obligor to the Lender under or in connection with each Finance Document to
which it is a party.
"Security"
means a mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the
effect of conferring security.
"Security
Assets" means all of the assets of the Transaction Obligors which from time to time are, or are expressed to be, the subject
of the Transaction Security.
"Security
Document" means:
| (b) | the
General Assignment; |
| (c) | any
Manager's Undertaking; |
| (d) | any
other document (whether or not it creates Security) which is executed as security for the
Secured Liabilities; or |
| (e) | any
other document designated as such by the Lender and the Borrower. |
"Security
Period" means the period starting on the date of this Agreement and ending on the date on which the Lender is satisfied that
there is no outstanding Commitment in force and that the Secured Liabilities have been irrevocably and unconditionally paid and discharged
in full.
"Security
Property" means:
| (a) | the
Transaction Security expressed to be granted in favour of the Lender and all proceeds of
that Transaction Security; |
| (b) | all
obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation
to the Secured Liabilities to the Lender and secured by the Transaction Security together
with all representations and warranties expressed to be given by a Transaction Obligor or
any other person in favour of the Lender; and |
| (c) | the
Lender's interest in any turnover trust created under the Finance Documents. |
"Ship"
means approximately 64,000DWT bulk carrier named "GLBS HERO" with IMO number 9983657 and registered in the name of the Borrower
under the laws and flag of ▇▇▇▇▇▇▇▇ Islands with official number 10877 or an Approved Flag.
"SOFR"
means the secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes
over the administration of that rate) published (before any correction, recalculation or republication by the administrator) by the Federal
Reserve Bank of New York (or any other person which takes over the publication of that rate).
"Specified
Time" means a day or time determined in accordance with Schedule 4 (Timetables).
"Subsidiary"
means a subsidiary within the meaning of section 1159 of the Companies Act 2006.
"Tax"
means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"Tax
Credit" has the meaning given to it in Clause 12.1 (Definitions).
"Tax
Deduction" has the meaning given to it in Clause 12.1 (Definitions).
"Tax
Payment" has the meaning given to it in Clause 12.1 (Definitions).
"Termination
Date" means 60 Months from the Utilisation Date.
"Term
SOFR" means the term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which
takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication
by the administrator)
by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate).
"Third
Parties Act" has the meaning given to it in Clause 1.5 (Third party rights).
"Total
Loss" means:
| (a) | actual,
constructive, compromised, agreed or arranged total loss of the Ship; or |
| (b) | any
Requisition of the Ship unless the Ship is returned to the full control of the Borrower within
90 days of such Requisition. |
"Total
Loss Date" means, in relation to the Total Loss of the Ship:
| (a) | in
the case of an actual loss of the Ship, the date on which it occurred or, if that is unknown,
the date when the Ship was last heard of; |
| (b) | in
the case of a constructive, compromised, agreed or arranged total loss of the Ship, the earlier
of: |
| (i) | the
date on which a notice of abandonment is given (or deemed or agreed to be given) to the insurers;
and |
| (ii) | the
date of any compromise, arrangement or agreement made by or on behalf of the Borrower with
the Ship's insurers in which the insurers agree to treat the Ship as a total loss; |
| (c) | in
the case of a Requisition, the date on which that Requisition occurs; and |
| (d) | in
the case of any other type of Total Loss, the date (or the most likely date) on which it
appears to the Lender that the event constituting the total loss occurred. |
"Transaction
Document" means:
| (a) | a
Finance Document; or |
| (b) | any
other document designated as such by the Lender and the Borrower. |
"Transaction
Obligor" means an Obligor, each Approved Manager who is a member of the Group or any other member of the Group who executes
a Transaction Document.
"Transaction
Security" means the Security created or evidenced or expressed to be created or evidenced under the Security Documents.
"UK
Bail-In Legislation" means Part 1 of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutes or their affiliates (otherwise
than through liquidation, administration or other insolvency proceedings).
"UK
Establishment" means a UK establishment as defined in the Overseas Regulations.
"Unpaid
Sum" means any sum due and payable but unpaid by a Transaction Obligor under the Finance Documents.
"US"
means the United States of America.
"US
Government Securities Business Day" means any day other than:
| (a) | a
Saturday or a Sunday; and |
| (b) | a
day on which the Securities Industry and Financial Markets Association (or any successor
organisation) recommends that the fixed income departments of its members be closed for the
entire day for purposes of trading in US Government securities. |
"US
Tax Obligor" means:
| (a) | a
person which is resident for tax purposes in the US; or |
| (b) | a
person some or all of whose payments under the Finance Documents are from sources within
the US for US federal income tax purposes. |
"Utilisation"
means the utilisation of the Facility.
"Utilisation
Date" means the date on which the Loan is to be made available to the Borrower.
"Utilisation
Request" means a notice substantially in the form set out in Schedule 3 (Utilisation Request).
"VAT"
means:
| (a) | any
value added tax imposed by the Value Added Tax Act 1994; |
| (b) | any
tax imposed in compliance with the Council Directive of 28 November 2006 on the common system
of value added tax (EC Directive 2006/112); and |
| (c) | any
other tax of a similar nature, whether imposed in the United Kingdom or a member state of
the European Union in substitution for, or levied in addition to, such tax referred to in
paragraph (a) or (b) above, or imposed elsewhere. |
"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; |
| (b) | in
relation to any other applicable Bail-In Legislation other than the UK 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 |
| (ii) | any
similar or analogous powers under that Bail-In Legislation; and |
| (c) | in
relation to the UK Bail-In Legislation, any powers under that UK 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 UK Bail-In Legislation
that are related to or ancillary to any of those powers. |
| (a) | Unless
a contrary indication appears, a reference in this Agreement to: |
| (i) | the
"Lender", any "Obligor", any "Party",
any "Transaction Obligor" or any other person shall be construed so as to
include its successors in title and permitted assigns; |
| (ii) | "assets"
includes present and future properties, revenues and rights of every description; |
| (iii) | a
liability which is "contingent" means a liability which is not certain to
arise and/or the amount of which remains unascertained; |
| (iv) | "document"
includes a deed and also a letter, fax, email or telex; |
| (v) | the
Lender's "cost of funds" in relation to its participation in the Loan or
any part of the Loan is a reference to the average cost (determined either on an actual or
a notional basis) which the Lender would incur if it were to fund, from whatever source(s)
it may reasonably select, an amount equal to the amount of that participation in the Loan
or that part of the Loan for a period equal in length to the Interest Period of the Loan
or that part of the Loan; |
| (vi) | "expense"
means any kind of cost, charge or expense (including all legal costs, charges and expenses)
and any applicable Tax including VAT; |
| (vii) | a
"Finance Document", a "Security Document" or "Transaction
Document" or any other agreement or instrument is a reference to that Finance Document,
Security Document or Transaction Document or other agreement or instrument as amended, replaced,
novated, supplemented, extended or restated; |
| (viii) | "indebtedness"
includes any obligation (whether incurred as principal or as surety) for the payment or repayment
of money, whether present or future, actual or contingent; |
| (ix) | "law"
includes any order or decree, any form of delegated legislation, 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; |
| (x) | "proceedings"
means, in relation to any enforcement provision of a Finance Document, proceedings of any
kind, including an application for a provisional or protective measure; |
| (xi) | a
"person" includes any individual, firm, company, corporation, government,
state or agency of a state or any association, trust, joint venture, consortium, partnership
or other entity (whether or not having separate legal personality); |
| (xii) | a
"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; |
| (xiii) | a
reference to the "Ship", its name, its flag and, if applicable, its port
of registry shall include any replacement name, flag and, if applicable, replacement port
of registry, in each case, as may be approved in writing from time to time by the Lender; |
| (xiv) | a
provision of law is a reference to that provision as amended or re-enacted from time to time; |
| (xv) | a
time of day is a reference to London time; |
| (xvi) | any
English legal term for any action, remedy, method of judicial proceeding, legal document,
legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction
other than England, be deemed to include that which most nearly approximates in that jurisdiction
to the English legal term; |
| (xvii) | words
denoting the singular number shall include the plural and vice versa; and |
| (xviii) | "including"
and "in particular" (and other similar expressions) shall be construed as
not limiting any general words or expressions in connection with which they are used. |
| (b) | The
determination of the extent to which a rate is "for a period equal in length"
to an Interest Period shall disregard any inconsistency arising from the last day of that
Interest Period being determined pursuant to the terms of this Agreement. |
| (c) | Section,
Clause and Schedule headings are for ease of reference only and are not to be used for the
purposes of construction or interpretation of the Finance Documents. |
| (d) | Unless
a contrary indication appears, a term used in any other Finance Document or in any notice
given under, or in connection with, any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement. |
| (e) | A
reference in this Agreement to a Central Bank Rate shall include any successor rate to, or
replacement rate for, that rate. |
| (f) | A
Potential Event of Default is "continuing" if it has not been remedied or
waived and an Event of Default is "continuing" if it has not been waived. |
| 1.3 | Construction
of insurance terms |
In
this Agreement:
"approved"
means, for the purposes of Clause 20 (Insurance Undertakings), approved in writing by the Lender.
"excess
risks" means the proportion of claims for general average, salvage and salvage charges not recoverable under the hull and machinery
policies in respect of the Ship in consequence of its insured value being less than the value at which the Ship is assessed for the purpose
of such claims.
"obligatory
insurances" means all insurances effected, or which the Borrower is obliged to effect, under Clause 20 (Insurance Undertakings)
or any other provision of this Agreement or of another Finance Document.
"policy"
includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms.
"protection
and indemnity risks" means the usual risks covered by a protection and indemnity association managed in London, including pollution
risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under
the hull and machinery policies by reason of the incorporation in them of clause 6 of the International Hull Clauses (1/11/02) (1/11/03),
clause 8 of the Institute Time Clauses (Hulls) (1/10/83) (1/11/95) or the Institute Amended Running Down Clause (1/10/71) or any equivalent
provision.
"war
risks" includes the risk of mines and all risks excluded by clauses 29, 30 or 31 of the International Hull Clauses (1/11/02),
clauses 29 or 30 of the International Hull Clauses (1/11/03), clauses 24, 25 or 26 of the Institute Time Clauses (Hulls) (1/11/95) or
clauses 23, 24 or 25 of the Institute Time Clauses (Hulls) (1/10/83) or any equivalent provision.
| 1.4 | Agreed
forms of Finance Documents |
References
in Clause 1.1 (Definitions) to any Finance Document being in "agreed form" are to that Finance Document:
| (a) | in
a form attached to a certificate dated the same date as this Agreement (and signed by the
Borrower and the Lender); or |
| (b) | in
any other form agreed in writing between the Borrower and the Lender. |
| (a) | Unless
expressly provided to the contrary in a Finance Document, a person who is not a Party has
no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties
Act") to enforce or to enjoy the benefit of any term of this Agreement. |
| (b) | Notwithstanding
any term of any Finance Document, the consent of any person who is not a Party is not required
to rescind or vary this Agreement at any time. |
| (c) | Any
Affiliate or Receiver or Delegate or any other person described in paragraph (f) of Clause 14.2
(Other indemnities), may, subject to this Clause 1.5 (Third party rights) and
the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights
on it. |
Section
2
The Facility
Subject
to the terms of this Agreement, the Lender makes available to the Borrower a dollar term loan facility in an amount not exceeding US$23,000,000.
The
Borrower shall apply all amounts borrowed by it under the Facility only for re-financing the acquisition of the Ship and the payment
of fees, costs and expenses and other amounts payable under the Finance Documents.
The
Lender is not bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
| 4 | Conditions
of Utilisation |
| 4.1 | Initial
conditions precedent |
The
Borrower may not deliver the Utilisation Request unless the Lender has received all of the documents and other evidence listed in Part
A of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Lender.
| 4.2 | Further
conditions precedent |
The
Lender will only be obliged to comply with Clause 5.4 (Loan) if:
| (a) | on
the date of the Utilisation Request and on the proposed Utilisation Date and before the Loan
is made available: |
| (i) | no
Default is continuing or would result from the proposed Loan (including Clause 24.10 (Change
of control)); |
| (ii) | the
Repeating Representations to be made by each Transaction Obligor are true; and |
| (iii) | the
Ship has neither been sold nor become a Total Loss; |
| (b) | the
Lender has received on or before the Utilisation Date, or is satisfied it will receive when
the Loan is made available or released, all of the documents and other evidence listed in
Part B of Schedule 2 (Conditions Precedent) in form and substance satisfactory to
the Lender. |
| 4.3 | Notification
of satisfaction of conditions precedent |
The
Lender shall notify the Borrower promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause
4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent).
| 4.4 | Waiver
of conditions precedent |
If
the Lender, at its discretion, permits the Loan to be borrowed before any of the conditions precedent referred to in Clause 4.1 (Initial
conditions precedent) or Clause 4.2 (Further conditions precedent) has been satisfied, the Borrower shall ensure that that
condition is satisfied within five Business Days after the Utilisation Date or such other date as the Lender may agree in writing with
the Borrower.
Section
3
Utilisation
| 5.1 | Delivery
of a Utilisation Request |
The
Borrower may make one Utilisation only under the Facility by delivery to the Lender of a duly completed Utilisation Request not later
than the Specified Time.
| 5.2 | Completion
of a Utilisation Request |
| (a) | A
Utilisation Request is irrevocable and will not be regarded as having been duly completed
unless: |
| (i) | the
proposed Utilisation Date is a Business Day within the Availability Period; |
| (ii) | the
currency and amount of the Loan comply with Clause 5.3 (Currency and amount); |
| (iii) | all
applicable deductible items have been completed; and |
| (iv) | the
proposed Interest Period complies with Clause 9 (Interest Periods). |
| (b) | Only
one Utilisation may be requested in a Utilisation Request. |
| (a) | The
amount of the proposed Advance must be an amount which is not more than the Commitment. |
| (b) | The
currency specified in a Utilisation Request must be dollars. |
| (c) | The
amount of the proposed Loan must be an amount which is not more than US$23,000,000. |
If
the conditions set out in this Agreement have been met, the Lender shall make the Loan available by the Utilisation Date through its
Facility Office.
| 5.5 | Cancellation
of Commitment |
On
the earlier of the date on which the Loan has been made and the end of the Availability Period any Commitment which is then unutilised
shall be cancelled.
| 5.6 | Retentions
and payment |
The
Borrower irrevocably authorises the Lender on the Utilisation Date to pay the balance of the Loan for the account of the Borrower to
such account which the Borrower specifies in the Utilisation Request.
| 5.7 | Disbursement
of Loan to third party |
Payment
by the Lender under Clause 5.6 (Retentions and payment) to a person other than the Borrower shall constitute the making of the
Loan and the Borrower shall at that time become indebted, as principal and direct obligor, to the Lender in an amount equal to the Loan.
| 5.8 | Prepositioning
of funds |
If,
in respect of the Loan, the Lender, at the request of the Borrower and on terms acceptable to the Lender and in its absolute discretion,
prepositions funds with any bank or escrow agent, the Borrower and the Guarantor:
| (a) | agree
to pay interest on the amount of the funds so prepositioned at the rate described in Clause
8.1 (Calculation of interest) on the basis of successive interest periods of one day
and so that interest shall be paid together with the first payment of interest on the Loan
after its Utilisation Date or, if such Utilisation Date does not occur, within three Business
Days of demand by the Lender; and |
| (b) | shall,
without duplication, indemnify the Lender against any costs, loss or liability it may incur
in connection with such arrangement. |
Section
4
Repayment, Prepayment and Cancellation
| (a) | The
Borrower shall repay the Loan: |
| (i) | by
20 consecutive quarterly equal instalments (each a "Repayment Instalment")
which shall be in an amount equal to US$295,000 each; and |
| (ii) | together
with the 20th (and last) instalment, an additional balloon amount equal to US$17,100,000
(or the balance of the Loan) (the "Balloon"). |
| (b) | The
first Repayment Instalment shall be repaid on the date falling 3 Months after the Utilisation
Date and each subsequent Repayment Instalment shall be paid 3 monthly thereafter with the
last Repayment Instalment being paid on the Termination Date. |
| 6.2 | Reduction
of Repayment Instalments |
If
any part of the Facility is cancelled, the Balloon shall be reduced by the amount cancelled and thereafter the Repayment Instalments
falling after that cancellation shall be reduced in inverse chronological order by the remaining amount cancelled.
On
the Termination Date, the Borrower shall additionally pay to the Lender all other sums then accrued and owing under the Finance Documents.
The
Borrower may not reborrow any part of the Facility which is repaid.
| 7 | Prepayment
and Cancellation |
| 7.1 | Illegality
and Sanctions affecting the Lender |
If:
| (a) | it
becomes unlawful or contrary to Sanctions in any applicable jurisdiction for the Lender to
perform any of its obligations as contemplated by this Agreement or to fund or maintain all
or any part of the Loan or it becomes unlawful for any Affiliate of the Lender for the Lender
to do so; or |
| (b) | without
prejudice to any of the express obligations of the Transaction Obligors under the Transaction
Documents, in the opinion of the Lender anything whatsoever is done or omitted to be done
by a Transaction Obligor which would result in the Lender being in breach of or made subject
to Sanctions, or at risk of being in breach of or made subject to Sanctions: |
| (i) | the
Lender shall promptly notify the Borrower upon becoming aware of that event and the Available
Facility will be immediately cancelled; |
| (ii) | the
Borrower shall prepay the Loan on the last day of the Interest Period for the Loan occurring
after the Lender has notified the Borrower or, if earlier, the date specified by the Lender
in the notice delivered to the Borrower (being no earlier than the last day of any applicable
grace period permitted by law) and the Commitment shall be cancelled; and |
| (iii) | accrued
interest and all other amounts accrued for the Lender under the Finance Documents shall be
immediately due and payable. |
| 7.2 | Automatic
cancellation |
The
unutilised Commitment (if any) shall be automatically cancelled at close of business on the Utilisation Date.
| 7.3 | Voluntary
prepayment of Loan |
| (a) | The
Borrower may, if it gives the Lender not less than 15 Business Days' (or such shorter period
as the Lender may agree) prior written notice, prepay the whole or any part of the Loan (but,
if in part, being an amount that reduces the amount of the Loan by a minimum amount of US$100,000
or a multiple of that amount) on a Repayment Date. |
| (b) | Any
partial prepayment under this Clause 7.3 (Voluntary prepayment of Loan) shall reduce
the Balloon by the amount prepaid and thereafter in inverse chronological order the amount
of each Repayment Instalment falling after that prepayment by the remaining amount prepaid. |
| 7.4 | Mandatory
prepayment on sale or Total Loss |
If
the Ship is sold (without prejudice to paragraph (a) of Clause 19.12 (Disposals)) or becomes a Total Loss, the Borrower shall
repay the Loan together with accrued interest, and all other amounts accrued under the Finance Documents. Such repayment shall be made:
| (a) | in
the case of a sale of the Ship, on or before the date on which the sale is completed by delivery
of the Ship to the buyer; or |
| (b) | in
the case of a Total Loss, on the earlier of (i) the date falling 150 days after the Total
Loss Date and (ii) the date of receipt by the Lender of the proceeds of insurance relating
to such |
| (a) | Any
notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment
and Cancellation) shall be irrevocable and, unless a contrary indication appears in this
Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment
is to be made and the amount of that cancellation or prepayment. |
| (b) | Any
prepayment under this Agreement shall be made together with accrued interest on the amount
prepaid and, subject to the fee provided for in Clause 11.2 (Prepayment fee) and any
Break Costs, without premium or penalty. |
| (c) | The
Borrower may not reborrow any part of the Facility which is prepaid. |
| (d) | The
Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part
of the Commitment except at the times and in the manner expressly provided for in this Agreement. |
| (e) | No
amount of the Commitment cancelled under this Agreement may be subsequently reinstated. |
Section
5
Costs of Utilisation
| 8.1 | Calculation
of interest |
The
rate of interest on the Loan or any part of the Loan for each Interest Period is the percentage rate per annum which is the aggregate
of the applicable:
| (a) | The
Borrower shall pay accrued interest on the Loan or any part of the Loan on the last day of
each Interest Period (each an "Interest Payment Date"). |
| (b) | If
an Interest Period is longer than three Months, the Borrower shall also pay interest then
accrued on the Loan or the relevant part of the Loan on the dates falling at three Monthly
intervals after the first day of the Interest Period. |
| (a) | If
a Transaction Obligor fails to pay any amount payable by it under a Finance Document on its
due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual
payment (both before and after judgment) at a rate which, subject to paragraph (b) below,
is 2 per cent. per annum higher than the rate which would have been payable if the Unpaid
Sum had, during the period of non-payment, constituted part of the Loan, in the currency
of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Lender.
Any interest accruing under this Clause 8.3 (Default interest) shall be immediately
payable by the Obligor on demand by the Lender. |
| (b) | If
an Unpaid Sum consists of all or part of the Loan which became due on a day which was not
the last day of an Interest Period relating to the Loan or that part of the Loan: |
| (i) | the
first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion
of the current Interest Period relating to the Loan or that part of the Loan; and |
| (ii) | the
rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2
per cent. per annum higher than the rate which would have applied if that Unpaid Sum had
not become due. |
| (c) | Default
interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the
end of each Interest Period applicable to that Unpaid Sum but will remain immediately due
and payable. |
| 8.4 | Notification
of rates of interest |
| (a) | The
Lender shall promptly notify the Borrower of the determination of a rate of interest under
this Agreement. |
| (b) | The
Lender shall promptly notify the Borrower of each Funding Rate relating to the Loan, any
part of the Loan or any Unpaid Sum. |
| (a) | Subject
to this Clause 9 (Interest Periods), each Interest Period shall be 3 Months or such
other period as the Lender may agree with the Borrower from time to time. |
| (b) | An
Interest Period in respect of the Loan shall not extend beyond the Termination Date. |
| (c) | In
respect of a Repayment Instalment, an Interest Period for a part of the Loan equal to such
Repayment Instalment shall end on the Repayment Date relating to it. |
| (d) | The
first Interest Period for the Loan shall start on the Utilisation Date and, subject to paragraph
(e) below, each subsequent Interest Period shall start on the last day of the preceding Interest
Period and shall at all times coincide with a Repayment Date. |
| (e) | Except
for the purposes of paragraph (c) above, the Loan shall have one Interest Period only at
any time. |
If
an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
| 10 | Changes
to the Calculation of Interest |
| 10.1 | Unavailability
of Term SOFR |
| (a) | Interpolated
Term SOFR: If no Term SOFR is available for the Interest Period of the Loan or any part
of the Loan, the applicable Reference Rate shall be the Interpolated Term SOFR for a period
equal in length to the Interest Period of the Loan or that part of the Loan. |
| (b) | Shortened
Interest Period: If no Term SOFR is available for the Interest Period of the Loan or
any part of the Loan and it is not possible to calculate the Interpolated Term SOFR, the
Interest Period of the Loan or any part of the Loan shall (if it is longer than the applicable
Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the
applicable Reference Rate for that shortened Interest Period shall be determined pursuant
to the definition of "Reference Rate". |
| (c) | Shortened
Interest Period and Historic Term SOFR: If the Interest Period of the Loan or any part
of the Loan is, after giving effect to paragraph (b) above, either the applicable Fallback
Interest Period or shorter than the applicable Fallback Interest Period and, in either case,
no Term SOFR is available for the Interest Period of the Loan or any part of the Loan and
it is not possible to calculate
the Interpolated Term SOFR, the applicable Reference Rate shall be the Historic Term SOFR for the Loan or that part of the Loan. |
| (d) | Shortened
Interest Period and Interpolated Historic Term SOFR: If paragraph (c) above applies but
no Historic Term SOFR is available for the Interest Period of the Loan or any part of the
Loan, the applicable Reference Rate shall be the Interpolated Historic Term SOFR for a period
equal in length to the Interest Period of the Loan or that part of the Loan. |
| (e) | Fixed
Central Bank Rate: If paragraph (d) above applies but it is not possible to calculate
the Interpolated Historic Term SOFR, the Interest Period of the Loan or the relevant part
of the Loan (if it is longer than the applicable Fallback Interest Period) shall continue
to be shortened to the applicable Fallback Interest Period and the applicable Reference Rate
for a period equal in length to the Interest Period of the Loan or the relevant part of the
Loan shall be: |
| (i) | the
percentage rate per annum which is the aggregate of: |
| (A) | the
Central Bank Rate for the Quotation Day; and |
| (B) | the
applicable Central Bank Rate Adjustment; or |
| (ii) | if
the Central Bank Rate for the Quotation Day is not available, the percentage rate per annum
which is the aggregate of: |
| (A) | the
most recent Central Bank Rate for a day which is no more than 5 US Government Securities
Business Days before the Quotation Day; and |
| (B) | the
applicable Central Bank Rate Adjustment. |
| (f) | Cost
of funds: If paragraph (e) above applies but it is not possible to calculate the aggregate
of the Central Bank Rate and the Central Bank Rate Adjustment, Clause 10.3 (Cost of funds)
shall apply to the Loan or that part of the Loan for that Interest Period. |
If
before close of business in Tokyo on the Quotation Day for the relevant Interest Period, the Lender notifies the Borrower its cost of
funds relating to its participation in the Loan or that part of the Loan would be in excess of the Market Disruption Rate then Clause
10.3 (Cost of funds) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
| (a) | If
this Clause 10.3 (Cost of funds) applies, the rate of interest on Loan or the relevant
part of the Loan for the relevant Interest Period shall be the percentage rate per annum
which is the sum of: |
| (i) | the
applicable Margin; and |
| (ii) | the
rate notified to the Borrower by the Lender as soon as practicable and in any event before
interest is due to be paid in respect of that Interest Period to be that which expresses
as a percentage rate per annum the cost to the Lender of funding the Loan or that part of
the Loan. |
| (b) | If
this Clause 10.3 (Cost of funds) applies and the Lender or the Borrower so require,
the Lender and the Borrower shall enter into negotiations (for a period of not more than
30 days) with a view to agreeing a substitute basis for determining the rate of interest
or (as the case may be) an alternative basis for funding. |
| (c) | Subject
to Clause 40.1(Changes to reference rates), any substitute or alternative basis
agreed pursuant to paragraph (b) above shall, with the prior consent of the Lender and the
Borrower, be binding on all Parties. |
The
Borrower shall, within three Business Days of demand by the Lender, pay to the Lender its Break Costs attributable to all or any part
of the Loan or Unpaid Sum being paid by the Borrower on a day prior to the last day of an Interest Period for the Loan, the relevant
part of the Loan or that Unpaid Sum.
The
Borrower shall pay to the Lender an upfront fee of US$345,000 within seven days from the date of this Agreement.
| (a) | The
Borrower must pay to the Lender a prepayment fee on the date of prepayment of all or any
part of the Loan. |
| (b) | The
amount of the prepayment fee is 1 per cent. of the prepaid amount if the prepayment occurs
during the period commencing from the Utilisation Date up to and including the date falling
twenty-four (24) Months from the Utilisation Date. |
| (c) | No
prepayment fee shall be payable under this Clause if the prepayment is made under Clause
7.1 (Illegality and Sanctions affecting the Lender), Clause 7.4 (Mandatory prepayment
on sale or Total Loss), Clause 22.6 (Prepayment Mechanism) and 25.2 (Conditions
of assignment or transfer). |
Section
6
Additional Payment Obligations
| 12 | Tax
Gross Up and Indemnities |
"Tax
Credit" means a credit against, relief or remission for, or repayment of any Tax.
"Tax
Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA
Deduction.
"Tax
Payment" means either the increase in a payment made by an Obligor to the Lender under Clause 12.2 (Tax gross-up) or
a payment under Clause 12.3 (Tax indemnity).
| (b) | Unless
a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference
to "determines" or "determined" means a determination made
in the absolute discretion of the person making the determination. |
| (a) | Each
Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax
Deduction is required by law. |
| (b) | The
Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or
that there is any change in the rate or the basis of a Tax Deduction) notify the Lender accordingly.
Similarly, the Lender shall notify an Obligor on becoming so aware in respect of a payment
payable to the Lender. |
| (c) | If
a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due
from that Obligor shall be increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due if no Tax Deduction had been
required. |
| (d) | If
an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction
and any payment required in connection with that Tax Deduction within the time allowed and
in the minimum amount required by law. |
| (e) | Within
30 days of making either a Tax Deduction or any payment required in connection with that
Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Lender evidence
reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable)
any appropriate payment paid to the relevant taxing authority. |
| (a) | The
Obligors shall (within three Business Days of demand by the Lender) pay to the Lender an
amount equal to the loss, liability or cost which the Lender determines will be or has been
(directly or indirectly) suffered for or on account of Tax by the Lender in respect of a
Finance Document. |
| (b) | Paragraph
(a) above shall not apply: |
| (i) | with
respect to any Tax assessed on the Lender: |
| (A) | under
the law of the jurisdiction in which the Lender is incorporated or, if different, the jurisdiction
(or jurisdictions) in which the Lender is treated as resident for tax purposes; or |
| (B) | under
the law of the jurisdiction in which the Lender's Facility Office is located in respect of
amounts received or receivable in that jurisdiction, |
if
that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or
receivable) by the Lender; or
| (ii) | to
the extent a loss, liability or cost: |
| (A) | is
compensated for by an increased payment under Clause 12.2 (Tax gross-up); or |
| (B) | relates
to a FATCA Deduction required to be made by a Party. |
| (c) | The
Lender shall, if making, or intending to make, a claim under paragraph (a) above promptly
notify the Borrower of the event which will give, or has given, rise to the claim. |
If
an Obligor makes a Tax Payment and the Lender determines that:
| (a) | a
Tax Credit is attributable to an increased payment of which that Tax Payment forms part,
to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received;
and |
| (b) | the
Lender has obtained and utilised that Tax Credit, |
the
Lender shall pay an amount to the Obligor which the Lender determines will leave it (after that payment) in the same after-Tax position
as it would have been in had the Tax Payment not been required to be made by the Obligor.
The
Obligors shall pay and, within three Business Days of demand, indemnify the Lender against any cost, loss or liability which the Lender
incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document (other than in
any transfer certificate or assignment agreement).
| (a) | All
amounts expressed to be payable under a Finance Document by any Party to the Lender which
(in whole or in part) constitute the consideration for any supply for VAT purposes are deemed
to be exclusive of any VAT which is chargeable on that supply, and accordingly, if VAT is
or becomes chargeable on any supply made by the Lender to any Party under a Finance Document
and the Lender is required to account to the relevant tax authority for the VAT, that Party
must pay to the Lender (in addition to and at the same time as paying any other consideration
for such supply) an amount equal to the amount of the VAT (and the Lender must promptly provide an appropriate VAT invoice to that Party). |
| (b) | Where
a Finance Document requires any Party to reimburse or indemnify the Lender for any cost or
expense, that Party shall reimburse or indemnify (as the case may be) the Lender for the
full amount of such cost or expense, including such part of it as represents VAT, save to
the extent that the Lender reasonably determines that it is entitled to credit or repayment
in respect of such VAT from the relevant tax authority. |
| (c) | Any
reference in this Clause 12.6 (VAT) to any Party shall, at any time when that Party
is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where
appropriate and unless the context otherwise requires) a reference to the person who is treated
at that time as making the supply, or (as appropriate) receiving the supply, under the grouping
rules provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the
relevant member state of the European Union or equivalent provisions imposed elsewhere) so
that a reference to a Party shall be construed as a reference to that Party or the relevant
group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the
relevant time or the relevant representative member (or representative or head) of that group
or unity at the relevant time (as the case may be). |
| (d) | In
relation to any supply made by the Lender to any Party under a Finance Document, if reasonably
requested by the Lender, that Party must promptly provide the Lender with details of that
Party's VAT registration and such other information as is reasonably requested in connection
with the Lender's VAT reporting requirements in relation to such supply. |
| (a) | Subject
to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request
by another Party: |
| (i) | confirm
to that other Party whether it is: |
| (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 as that other Party reasonably requests for the purposes of that other Party's
compliance with FATCA; and |
| (iii) | supply
to that other Party such forms, documentation and other information relating to its status
as that other Party reasonably requests for the purposes of that other Party's compliance
with any other law, regulation or exchange of information regime. |
| (b) | If
a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that
it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased
to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. |
| (c) | Paragraph
(a) above shall not oblige the Lender to do anything and sub-paragraph (iii) of paragraph
(a) above shall not oblige any other Party to do anything which would or might in its reasonable
opinion constitute a breach of: |
| (i) | any
law or regulation; |
| (ii) | any
fiduciary duty; or |
| (iii) | any
duty of confidentiality. |
| (d) | If
a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation
or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph
(a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then
such Party shall be treated for the purposes of the Finance Documents (and payments under
them) as if it is not a FATCA Exempt Party until such time as the Party in question provides
the requested confirmation, forms, documentation or other information. |
| (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) | Each
Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there
is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom
it is making the payment. |
| (a) | Subject
to Clause 13.3 (Exceptions), the Borrower shall, within three Business Days of a demand
by the Lender, pay for the account of the Lender the amount of any Increased Costs incurred
by the Lender or any of its Affiliates as a result of: |
| (i) | the
introduction of or any change in (or in the interpretation, administration or application
of) any law or regulation; or |
| (ii) | compliance
with any law or regulation made, |
in
each case after the date of this Agreement; or
| (iii) | the
implementation, application of or compliance with Basel III or CRD IV or any law or regulation
that implements or applies Basel III or CRD IV. |
| (A) | the
agreements on capital requirements, a leverage ratio and liquidity standards contained in
"Basel III: A global regulatory framework for more resilient banks and banking systems",
"Basel III: International framework for liquidity risk measurement, standards and monitoring"
and "Guidance for national authorities operating the countercyclical capital buffer"
published by the Basel Committee on Banking Supervision in December 2010, each as amended,
supplemented or restated; |
| (B) | the
rules for global systemically important banks contained in "Global systemically important
banks: assessment methodology and the additional loss absorbency requirement - Rules text"
published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented
or restated; and |
| (C) | any
further guidance or standards published by the Basel Committee on Banking Supervision relating
to "Basel III". |
| (A) | Regulation
(EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms and amending regulation (EU) No.
648/2012, as amended by Regulation (EU) 2019/876; |
| (B) | Directive
2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to
the activity of credit institutions and the prudential supervision of credit institutions
and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and
2006/49/EC, as amended by Directive (EU) 2019/878; and |
| (C) | any
other law or regulation which implements Basel III. |
| (iii) | "Increased
Costs" means: |
| (A) | a
reduction in the rate of return from the Facility or on the Lender's (or its Affiliate's)
overall capital; |
| (B) | an
additional or increased cost; or |
| (C) | a
reduction of any amount due and payable under any Finance Document, |
which
is incurred or suffered by the Lender or any of its Affiliates to the extent that it is attributable to the Lender having entered into
the Commitment or funding or performing its obligations under any Finance Document.
| 13.2 | Increased
cost claims |
If
the Lender intends to make a claim pursuant to Clause 13.1 (Increased costs) it shall notify the Borrower of the event giving
rise to the claim.
Clause
13.1 (Increased costs) does not apply to the extent any Increased Cost is:
| (a) | attributable
to a Tax Deduction required by law to be made by an Obligor; |
| (b) | attributable
to a FATCA Deduction required to be made by a Party; |
| (c) | compensated
for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause
12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions
in paragraph (b) of Clause 12.3 (Tax indemnity) applied); |
| (d) | compensated
for by any payment made pursuant to Clause 14.3 (Mandatory Cost); or |
| (e) | attributable
to the wilful breach by the Lender or its Affiliates of any law or regulation. |
| (a) | If
any sum due from an Obligor under the Finance Documents (a "Sum"), or any
order, judgment or award given or made in relation to a Sum, has to be converted from the
currency (the "First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of: |
| (i) | making
or filing a claim or proof against that Obligor; or |
| (ii) | obtaining
or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
that
Obligor shall, as an independent obligation, on demand, indemnify the Lender against any cost, loss or liability arising out of or as
a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
| (b) | Each
Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance
Documents in a currency or currency unit other than that in which it is expressed to be payable. |
| (a) | Each
Obligor shall, on demand, indemnify the Lender and any Receiver and Delegate against: |
| (i) | any
cost, loss or liability incurred by it as a result of: |
| (A) | the
occurrence of any Event of Default; |
| (B) | a
failure by a Transaction Obligor to pay any amount due under a Finance Document on its due
date; |
| (C) | funding,
or making arrangements to fund, the Loan requested by the Borrower in a Utilisation Request
but not made by reason of the operation of any one or more of the provisions of this Agreement
(other than by reason of default or negligence by the Lender alone); |
| (D) | the
Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given
by the Borrower; or |
| (E) | investigating
any event which it reasonably believes is a Default; and |
| (ii) | any
cost, loss or liability (including, without limitation, for negligence or any other category
of liability whatsoever) incurred by the Lender (otherwise than by reason of the Lender's
gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant
to Clause 27.8 (Disruption to Payment Systems etc.) notwithstanding the
Lender's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of
the Lender in acting as Lender under the Finance Documents. |
| (b) | Each
Obligor shall, on demand, indemnify the Lender, each Affiliate of the Lender and any Receiver
and Delegate and each officer or employee of the Lender or its Affiliate or any Receiver
or Delegate (as applicable) (each such person for the purposes of this Clause 14.2 (Other
indemnities) an "Indemnified Person"), against any cost, loss or liability
(including, without limitation, for negligence or any other category of liability whatsoever)
incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration
or administrative proceedings or regulatory enquiry, in connection with or arising out of
the entry into and the transactions contemplated by the Finance Documents, having the benefit
of any Security constituted by the Finance Documents or which relates to the condition or
operation of, or any incident occurring in relation to, the Ship unless such cost, loss or
liability is caused by the gross negligence or wilful misconduct of that Indemnified Person. |
| (c) | No
Party other than the Lender or the Receiver or Delegate (as applicable) may take any proceedings
against any officer, employee or agent of the Lender or the Receiver or Delegate (as applicable)
in respect of any claim it might have against the Lender or the Receiver or Delegate or in
respect of any act or omission of any kind by that officer, employee or agent in relation
to any Transaction Document or any Security Property. |
| (d) | Without
limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in
paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified
Person in any jurisdiction: |
| (i) | arising
or asserted under or in connection with any law relating to safety at sea, the ISM Code,
any Environmental Law or any Sanctions; or |
| (ii) | in
connection with any Environmental Claim. |
| (e) | Each
Obligor shall, on demand, indemnify the Lender and every Receiver and Delegate against any
cost, loss or liability (including, without limitation, for negligence or any other category
of liability whatsoever) incurred by any of them: |
| (i) | in
relation to or as a result of: |
| (A) | any
failure by the Borrower to comply with its obligations under Clause 15 (Costs and Expenses); |
| (B) | acting
or relying on any notice, request or instruction which it reasonably believes to be genuine,
correct and appropriately authorised; |
| (C) | the
taking, holding, protection or enforcement of the Finance Documents and the Transaction Security; |
| (D) | the
exercise of any of the rights, powers, discretions, authorities and remedies vested in the
Lender and each Receiver and Delegate by the Finance Documents or by law; |
| (E) | any
default by any Transaction Obligor in the performance of any of the obligations expressed
to be assumed by it in the Finance Documents; |
| (F) | any
action by any Transaction Obligor which vitiates, reduces the value of, or is otherwise prejudicial
to, the Transaction Security; and |
| (G) | instructing
lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as
permitted under the Finance Documents. |
| (ii) | which
otherwise relates to any of the Security Property or the performance of the terms of this
Agreement or the other Finance Documents (otherwise, in each case, than by reason of the
Lender's or Receiver's or Delegate's gross negligence or wilful misconduct). |
| (f) | Any
Affiliate or Receiver or Delegate or any officer or employee of the Lender or of any of its
Affiliates or any Receiver or Delegate (as applicable) may rely on this Clause 14.2 (Other
indemnities) and the provisions of the Third Parties Act subject to Clause 1.5 (Third
party rights) and the provisions of the Third Parties Act. |
The
Borrower shall, on demand by the Lender, pay to the Lender, such amount which the Lender certifies in a notice to the Borrower to be
its good faith determination of the amount necessary to compensate it for complying with:
| (a) | if
the Lender is lending from a Facility Office in a Participating Member State, the minimum
reserve requirements (or other requirements having the same or similar purpose) of the European
Central Bank (or any other authority or agency which replaces all or any of its functions)
in respect of loans made from that Facility Office; and |
| (b) | if
the Lender is lending from a Facility Office in the United Kingdom, any reserve asset, special
deposit or liquidity requirements (or other requirements having the same or similar purpose)
of the Bank of England (or any other governmental authority or agency) and/or paying any
fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any
other governmental authority or agency which replaces all or any of their functions), |
which
in each case is referable to the Loan.
The
Obligors shall, on demand, pay the Lender the amount of all documented costs and expenses (including legal fees) reasonably incurred
by it and approved in advance by the Borrower in connection with the negotiation, preparation, printing, execution and perfection of:
| (a) | this
Agreement and any other documents referred to in this Agreement or in a Security Document;
and |
| (b) | any
other Finance Documents executed after the date of this Agreement, |
and
for the avoidance of doubt, the obligation of Obligors under this Clause 15.1 shall continue to be valid and binding regardless of whether
the Facility has been utilised or not under this Agreement.
If:
| (a) | a
Transaction Obligor requests an amendment, waiver or consent; or |
| (b) | an
amendment is required either pursuant to Clause 27.6 (Change of currency) or as contemplated
in Clause 40.1 (Changes to reference rates); or |
| (c) | a
Transaction Obligor requests, and the Lender agrees to, the release of all or any part of
the Security Assets from the Transaction Security, |
the
Obligors shall, on demand, reimburse the Lender for the amount of all costs and expenses (including legal fees) reasonably incurred by
the Lender in responding to, evaluating, negotiating or complying with that request or requirement.
| 15.3 | Enforcement
and preservation costs |
The
Obligors shall, on demand, pay to the Lender the amount of all costs and expenses (including legal fees) incurred by the Lender in connection
with the enforcement of, or the preservation of any rights (in which case, such costs and expenses (including legal fees) shall be documented)
under, any Finance Document or the Transaction Security and with any proceedings instituted by or against the Lender as a consequence
of it entering into a Finance Document, taking or holding the Transaction Security, or enforcing those rights.
Section
7
Guarantee
| 16 | Guarantee
and Indemnity |
| 16.1 | Guarantee
and indemnity |
The
Guarantor irrevocably and unconditionally:
| (a) | guarantees
to the Lender punctual performance by the Borrower of all its obligations under the Finance
Documents; |
| (b) | undertakes
with the Lender that whenever the Borrower does not pay any amount when due under or in connection
with any Finance Document, the Guarantor shall immediately on demand pay that amount as if
it were the principal obligor; and |
| (c) | agrees
with the Lender that if any obligation guaranteed by it is or becomes unenforceable, invalid
or illegal, it will, as an independent and primary obligation, indemnify the Lender immediately
on demand against any cost, loss or liability it incurs as a result of the Borrower not paying
any amount which would, but for such unenforceability, invalidity or illegality, have been
payable by it under any Finance Document on the date when it would have been due. The amount
payable by the Guarantor under this indemnity will not exceed the amount it would have had
to pay under this Clause 16 (Guarantee and Indemnity) if the amount claimed had
been recoverable on the basis of a guarantee. |
This
guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by the Borrower under the Finance Documents
to which it is a party, regardless of any intermediate payment or discharge in whole or in part.
If
any discharge, release or arrangement (whether in respect of the obligations of the Borrower or any security for those obligations or
otherwise) is made by the Lender in whole or in part on the basis of any payment, security or other disposition which is avoided or must
be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantor under this
Clause 16 (Guarantee and Indemnity) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The
obligations of the Guarantor under this Clause 16 (Guarantee and Indemnity) and in respect of any Transaction Security will not
be affected or discharged by an act, omission, matter or thing which, but for this Clause 16.4 (Waiver of defences), would reduce,
release or prejudice any of its obligations under this Clause 16 (Guarantee and Indemnity) or in respect of any Transaction Security
(without limitation and whether or not known to it or the Lender) including:
| (a) | any
time, waiver or consent granted to, or composition with, the Borrower or other person; |
| (b) | the
release of the Borrower or any other person under the terms of any composition or arrangement
with any creditor of any member of the Group; |
| (c) | the
taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to
perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in
taking or enforcing any rights against, or security over assets of, the Borrower or other
person or any non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any security; |
| (d) | any
incapacity or lack of power, authority or legal personality of or dissolution or change in
the members or status of the Borrower or any other person; |
| (e) | any
amendment, novation, supplement, extension, restatement (however fundamental and whether
or not more onerous) or replacement of any Finance Document or any other document or security
including, without limitation, any change in the purpose of, any extension of or any increase
in any facility or the addition of any new facility under any Finance Document or other document
or security; |
| (f) | any
unenforceability, illegality or invalidity of any obligation of any person under any Finance
Document or any other document or security; or |
| (g) | any
insolvency or similar proceedings. |
The
Guarantor waives any right it may have of first requiring the Lender (or any trustee or agent on its behalf) to proceed against or enforce
any other rights or security or claim payment from any person (including without limitation to commence any proceedings under any Finance
Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 16 (Guarantee and Indemnity).
This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
Until
all amounts which may be or become payable by the Borrower under or in connection with the Finance Documents have been irrevocably paid
in full, the Lender (or any trustee or agent on its behalf) may:
| (a) | refrain
from applying or enforcing any other moneys, security or rights held or received by the Lender
(or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce
the same in such manner and order as it sees fit (whether against those amounts or otherwise)
and the Guarantor shall not be entitled to the benefit of the same; and |
| (b) | hold
in an interest-bearing suspense account any moneys received from the Guarantor or on account
of the Guarantor's liability under this Clause 16 (Guarantee and Indemnity). |
| 16.7 | Deferral
of Guarantor's rights |
All
rights which the Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against the Borrower
or its assets shall be fully subordinated to the rights of the Lender under the Finance Documents and until the end of the Security Period
and unless the Lender otherwise directs, the Guarantor will not exercise any rights which it may have (whether in respect of any Finance
Document to which it is a Partyor any other transaction) by reason of performance by it of its obligations under the Finance Documents
or by reason of any amount being payable, or liability arising, under this Clause 16 (Guarantee and Indemnity):
| (a) | to
be indemnified by the Borrower; |
| (b) | to
claim any contribution from any third party providing security for, or any other guarantor
of, the Borrower's obligations under the Finance Documents; |
| (c) | to
take the benefit (in whole or in part and whether by way of subrogation or otherwise) of
any rights of the Lender under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents by the Lender; |
| (d) | to
bring legal or other proceedings for an order requiring the Borrower to make any payment,
or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking
or indemnity under Clause 16.1 (Guarantee and indemnity); |
| (e) | to
exercise any right of set-off against the Borrower; and/or |
| (f) | to
claim or prove as a creditor of the Borrower in competition with the Lender. |
If
the Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution
to the extent necessary to enable all amounts which may be or become payable to the Lender by the Borrower under or in connection with
the Finance Documents to be repaid in full on trust for the Lender and shall promptly pay or transfer the same to the Lender or as the
Lender may direct for application in accordance with Clause 27 (Payment Mechanics).
This
guarantee and any other Security given by the Guarantor is in addition to and is not in any way prejudiced by, and shall not prejudice,
any other guarantee or Security or any other right of recourse now or subsequently held by the Lender or any right of set-off or netting
or right to combine accounts in connection with the Finance Documents.
| 16.9 | Applicability
of provisions of Guarantee to other Security |
Clauses
16.2 (Continuing guarantee), 16.3 (Reinstatement), 16.4 (Waiver of defences), 16.5 (Immediate recourse),
16.6 (Appropriations), 16.7 (Deferral of Guarantor's rights) and 16.8 (Additional security) shall apply, with any
necessary modifications, to any Security which the Guarantor creates (whether at the time at which it signs this Agreement or at any
later time) to secure the Secured Liabilities or any part of them.
Section
8
Representations, Undertakings and Events of Default
Each
Obligor makes the representations and warranties set out in this Clause 17 (Representations) to the Lender on the date of this
Agreement.
| (a) | It
is a corporation, duly incorporated and validly existing in good standing under the law of
its Original Jurisdiction. |
| (b) | It
and each Transaction Obligor has the power to own its assets and carry on its business as
it is being conducted. |
| 17.3 | Share
capital and ownership |
| (a) | The
Borrower has an authorized share capital of 500 registered shares of no par value, all of
which shares have been issued fully paid. |
| (b) | The
legal title to and beneficial interest in the shares in the Borrower is held by the Guarantor
free of any Security or any other claim. |
| (c) | None
of the shares in the Borrower is subject to any option to purchase, pre-emption rights or
similar rights. |
| (d) | The
Guarantor is controlled by the Disclosed Persons and for the purpose of this Clause "control"
has the meaning given to such term in Clause 24.10 (Change of Control). |
Subject
to the Legal Reservations, the obligations expressed to be assumed by it in each Transaction Document to which it is a party are legal,
valid, binding and enforceable obligations.
| 17.5 | Validity,
effectiveness and ranking of Security |
| (a) | Each
Finance Document to which it is a party does now or, as the case may be, will upon execution
and delivery create, subject to the Legal Reservations and the Perfection Requirements, the
Security it purports to create over any assets to which such Security, by its terms, relates,
and such Security will, when created or intended to be created, be valid and effective. |
| (b) | No
third party has or will have any Security (except for Permitted Security) over any assets
that are the subject of any Transaction Security granted by it. |
| (c) | Subject
to the Legal Reservations and the Perfection Requirements, the Transaction Security granted
by it to the Lender has or will when created or intended to be created have first ranking priority
or such other priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu
ranking Security. |
| (d) | No
concurrence, consent or authorisation of any person is required for the creation of or otherwise
in connection with any Transaction Security. |
| 17.6 | Non-conflict
with other obligations |
The
entry into and performance by it of, and the transactions contemplated by, each Transaction Document to which it is a party do not and
will not conflict with:
| (a) | any
law or regulation applicable to it; |
| (b) | the
constitutional documents of any member of the Group; or |
| (c) | any
agreement or instrument binding upon it or any member of the Group or any of its assets or
any member of the Group's assets or constitute a default or termination event (however described)
under any such agreement or instrument (the termination of which will have a Material Adverse
Effect). |
| (a) | It
has the power to enter into, perform and deliver, and has taken all necessary action to authorise: |
| (i) | its
entry into, performance and delivery of, each Transaction Document to which it is or will
be a party and the transactions contemplated by those Transaction Documents; and |
| (ii) | in
the case of the Borrower, its registration of the Ship under the Approved Flag. |
| (b) | No
limit on its powers will be exceeded as a result of the borrowing, granting of security or
giving of guarantees or indemnities contemplated by the Transaction Documents to which it
is a party. |
| 17.8 | Validity
and admissibility in evidence |
All
Authorisations required or desirable:
| (a) | to
enable it lawfully to enter into, exercise its rights and comply with its obligations in
the Transaction Documents to which it is a party; and |
| (b) | to
make the Transaction Documents to which it is a party admissible in evidence in its Relevant
Jurisdictions, |
have
been obtained or effected and are in full force and effect.
| 17.9 | Governing
law and enforcement |
| (a) | Subject
to the Legal Reservations, the choice of governing law of each Transaction Document to which
it is a party will be recognised and enforced in its Relevant Jurisdictions. |
| (b) | Subject
to the Legal Reservations, any judgment obtained in relation to a Transaction Document to
which it is a party in the jurisdiction of the governing law of that Transaction Document
will be recognised and enforced in its Relevant Jurisdictions. |
No:
| (a) | corporate
action, legal proceeding or other procedure or step described in paragraph (a) of Clause
24.8 (Insolvency proceedings); or |
| (b) | creditors'
process described in Clause 24.9 (Creditors' process), |
has
been taken or, to its knowledge, threatened in relation to a member of the Group; and none of the circumstances described in Clause 24.7
(Insolvency) applies to a member of the Group.
| 17.11 | No
filing or stamp taxes |
Under
the laws of its Relevant Jurisdictions it is not necessary that the Finance Documents to which it is a party be registered, filed, recorded,
notarised or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes
or fees be paid on or in relation to the Finance Documents to which it is a party or the transactions contemplated by those Finance Documents
except the registration Mortgage with the ▇▇▇▇▇▇▇▇ Islands Registry and the payment to the ▇▇▇▇▇▇▇▇ Islands Registry of the fees in relation
to such registration.
It
is not required to make any Tax Deduction from any payment it may make under any Finance Document to which it is a party.
| (a) | No
Event of Default and, on the date of this Agreement and on the Utilisation Date, no Default
is continuing or would result from the making of the Utilisation or the entry into, the performance
of, or any transaction contemplated by, any Transaction Document. |
| (b) | No
other event or circumstance is outstanding which constitutes a default or a termination event
(however described) under any other agreement or instrument which is binding on it or to
which its assets are subject which has or is reasonably likely to have a Material Adverse
Effect. |
| 17.14 | No
misleading information |
| (a) | Any
factual information provided by any member of the Group for the purposes of this Agreement
was true and accurate in all material respects as at the date it was provided or as at the
date (if any) at which it is stated. |
| (b) | The
financial projections contained in any such information have been prepared on the basis of
recent historical information and on the basis of reasonable assumptions. |
| (c) | Nothing
has occurred or been omitted from any such information and no information has been given
or withheld that results in any such information being untrue or misleading in any material
respect. |
| 17.15 | Financial
Statements |
| (a) | Its
Original Financial Statements were prepared in accordance with IFRS consistently applied. |
| (b) | Its
Original Financial Statements give a true and fair view of or fairly present (if prepared
in accordance with IFRS) its financial condition as at the end of the relevant financial
year and its results of operations during the relevant financial year (consolidated in the
case of the Guarantor). |
| (c) | There
has been no material adverse change in its assets, business or financial condition (or the
assets, business or consolidated financial condition of the Group, in the case of the Guarantor)
since December 31, 2023. |
| (d) | Its
most recent financial statements delivered pursuant to Clause 18.2 (Financial statements): |
| (i) | have
been prepared in accordance with Clause 18.3 (Requirements as to financial statements);
and |
| (ii) | give
a true and fair view of (if audited) or fairly represent (if unaudited or prepared in accordance
with IFRS) its financial condition as at the end of the relevant financial year and operations
during the relevant financial year (consolidated in the case of the Guarantor). |
| (e) | Since
the date of the most recent financial statements delivered pursuant to Clause 18.2 (Financial
statements) there has been no material adverse change in its business, assets or financial
condition (or the business or consolidated financial condition of the Group, in the case
of the Guarantor). |
Its
payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other
unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
| 17.17 | No
proceedings pending or threatened |
| (a) | No
litigation, arbitration or administrative proceedings or investigations (including proceedings
or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS
Code) of or before any court, arbitral body or agency which, if adversely determined, might
reasonably be expected to result in liability equal or exceeding US$5,000,000 have (to the
best of its knowledge and belief (having made due and careful enquiry)) been started or threatened
against it or any other Transaction Obligor. |
| (b) | No
judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction
of any governmental or other regulatory body which might reasonably be expected to have a
Material Adverse Effect has (to the best of its knowledge and belief (having made due and
careful enquiry)) been made against it or any other Transaction Obligor. |
| (a) | All
information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation
delivered to the Lender in accordance with this Agreement was true and accurate as at the
date it was supplied or (if appropriate) as at the date (if any) at which it is stated to
be given. |
| (b) | It
has not omitted to supply any information to an Approved Valuer which, if disclosed, would
adversely affect any valuation prepared by such Approved Valuer. |
| (c) | There
has been no change to the factual information provided pursuant to paragraph (a) above in
relation to any valuation between the date such information was provided and the date of
that valuation which, in either case, renders that information untrue or misleading in any
material respect. |
It
has not (and no other Transaction Obligor) breached any applicable law or regulation which breach has or is reasonably likely to have
a Material Adverse Effect.
Except
as disclosed by the Borrower to the Lender in writing on or before the date of this Agreement, the Ship is not subject to any Charter
other than a Permitted Charter.
| 17.21 | Compliance
with Environmental Laws |
All
Environmental Laws relating to the ownership, operation and management of the Ship and the business of each member of the Group (as now
conducted and as reasonably anticipated to be conducted in the future) and the terms of all Environmental Approvals have been complied
with.
| 17.22 | No
Environmental Claim |
No
Environmental Claim has been made against any member of the Group or the Ship.
| 17.23 | No
Environmental Incident |
No
Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred.
| 17.24 | ISM
and ISPS Code compliance |
All
requirements of the ISM Code and the ISPS Code as they relate to the Borrower, the Approved Manager and the Ship have been complied with.
| (a) | Subject
to paragraph (c) below, it is not and no other member of the Group is materially overdue
in the filing of any Tax returns and it is not (and no other member of the Group is) overdue
in the payment of any amount in respect of Tax. |
| (b) | Subject
to paragraph (c) below, no claims or investigations are being, or are reasonably likely to
be, made or conducted against it (or any other member of the Group) with respect to Taxes. |
| (c) | In
relation to any member of the Group other than the Borrower, the above paragraph (a) or (b)
would only apply when the amount concerned under such paragraph is equal to or exceeding
US$3,000,000. |
| 17.26 | Financial
Indebtedness |
The
Borrower does not have any Financial Indebtedness outstanding other than Permitted Financial Indebtedness.
No
Transaction Obligor has delivered particulars, whether in its name stated in the Finance Documents or any other name, of any UK Establishment
to the Registrar of Companies as required under the Overseas Regulations or, if it has so registered, it has provided to the Lender sufficient
details to enable an accurate search against it to be undertaken by the Lender at the Companies Registry.
| 17.28 | Good
title to assets |
It
has good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary
to carry on its business as presently conducted.
| (a) | The
Borrower is the sole legal and beneficial owner of the Ship, the Earnings and the Insurances. |
| (b) | With
effect on and from the date of its creation or intended creation, each Transaction Obligor
will be the sole legal and beneficial owner of any asset that is the subject of any Transaction
Security created or intended to be created by such Transaction Obligor. |
| (c) | The
constitutional documents of each Transaction Obligor do not and could not restrict or inhibit
any transfer of the shares of the Borrower on creation or enforcement of the security conferred
by the Security Documents. |
| 17.30 | Centre
of main interests and establishments |
For
the purposes of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings (recast)(the "Regulation"),
its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its Original Jurisdiction and Greece
it has no "establishment" (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
Neither
Obligor has a place of business in any countries other than Greece and its head office functions are carried out in the case of Guarantor
through its branch office established in Greece at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
| 17.32 | No
employee or pension arrangements |
The
Borrower has no employees or any liabilities under any pension scheme.
| (a) | No
Transaction Obligor, and none of its Subsidiaries and none of their respective directors,
officers or employees or, to the best of the knowledge of each such Transaction Obligor,
its agents: |
| (i) | is
a Prohibited Person or is otherwise owned or controlled by or acting directly or indirectly
on behalf of or for the benefit of, a Prohibited Person; |
| (ii) | owns
or controls or is an Affiliate of a Prohibited Person; or |
| (iii) | has
received notice of or is aware of any claim, action, suit, proceedings or investigation against
it with respect to Sanctions. |
| (b) | Each
Transaction Obligor, its Subsidiaries and their respective directors, officers and employees
and, to the best of the knowledge of each such Transaction Obligor its agents, are in compliance
with Sanctions in all material respects and are not knowingly engaged in any activity that
would reasonably be expected to result in such Transaction Obligor being designated as a
Prohibited Person. |
| (c) | The
Ship is not a Sanctioned Ship. |
Neither
Obligor is a US Tax Obligor.
The
Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date
of each Utilisation Request and the first day of each Interest Period.
| 18 | Information
Undertakings |
The
undertakings in this Clause 18 (Information Undertakings) remain in force throughout the Security Period unless the Lender otherwise
permits.
The
Borrower shall supply to the Lender:
| (a) | as
soon as they become available, but in any event within 180 days after the end of each of
its financial years: |
| (i) | the
unaudited financial statements of the Borrower for that financial year (commencing with the
financial year ending on 31 December 2024); and |
| (ii) | the
audited consolidated financial statements of the Guarantor for that financial year (commencing
with the financial year ending on 31 December 2023). |
| (b) | as
soon as the same become available, but in any event within 180 days after the end of each
half of each of its financial years: |
| (i) | the
semi-annual financial statements of the Borrower for that financial half year; |
| (ii) | the
consolidated financial statements of the Guarantor for that financial half year; |
| (c) | as
soon as possible, but in no event later than 90 days after the end of each financial year
of the Borrower (commencing from January 1, 2025), a budget in a format approved by the Lender
which shows all anticipated expenditure in respect of the Ship during the next financial
year of the Borrower. |
| 18.3 | Requirements
as to financial statements |
| (a) | Each
set of financial statements delivered by the Borrower pursuant to Clause 18.2 (Financial
statements) shall be certified by a director of the company as giving a true and fair
view (if audited) or fairly representing (if unaudited or if prepared in accordance with
IFRS) its financial condition and operations as at the date as at which those financial statements
were drawn up. |
| (b) | The
Borrower shall procure that each set of financial statements delivered pursuant to Clause 18.2
(Financial statements) is prepared using GAAP. |
| (a) | In
this Clause 18.4 (DAC6), "DAC6" means the Council Directive of 25
May 2018 (2018/822/EU) amending Directive 2011/16/EU or any replacement legislation applicable
in the United Kingdom. |
| (b) | The
Borrower shall supply to the Lender: |
| (i) | promptly
upon the making of such analysis or the obtaining of such advice, any analysis made or advice
obtained on whether any transaction contemplated by the Transaction Documents or any transaction
carried out (or to be carried out) in connection with any transaction contemplated by the
Transaction Documents contains a hallmark as set out in Annex IV of DAC6; and |
| (ii) | promptly
upon the making of such reporting and to the extent permitted by applicable law and regulation,
any reporting made to any governmental or taxation authority by or on behalf of any member
of the Group or by any adviser to such member of the Group in relation to DAC6 or any law
or regulation which implements DAC6 and any unique identification number issued by any governmental
or taxation authority to which any such report has been made (if available). |
| 18.5 | Information:
miscellaneous |
Each
Obligor shall and shall procure that each other Transaction Obligor shall supply to the Lender:
| (a) | all
documents dispatched by it to its shareholders (or any class of them) or its creditors generally
at the same time as they are dispatched; |
| (b) | promptly
upon becoming aware of them, the details of any litigation, arbitration or administrative
proceedings or investigations (including proceedings or investigations relating to any alleged
or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending
against any member of the Group, and which might, if adversely determined, have a Material
Adverse Effect; |
| (c) | promptly
upon becoming aware of them, the details of any judgment or order of a court, arbitral body
or agency which is made against any member of the Group and which might have a Material Adverse
Effect or which would involve a liability, or a potential or alleged liability, exceeding
$1,000,000 (or its equivalent in other currencies); |
| (d) | promptly,
its constitutional documents where these have been amended or varied; |
| (e) | promptly,
such further information and/or documents regarding: |
| (i) | the
Ship, goods transported on the Ship, the Earnings and the Insurances; |
| (iii) | compliance
of the Transaction Obligors with the terms of the Finance Documents; |
| (iv) | the
financial condition, business and operations of any member of the Group, |
as
the Lender may reasonably request; and
| (f) | promptly,
such further information and/or documents as the Lender may reasonably request so as to enable
the Lender to comply with any laws applicable to it or as may be required by any regulatory
authority. |
For
the purpose of this Clause, provided that the Guarantor retains its status as a listed company in accordance with paragraph (a) of Clause
24.10 (Change of Control), all information that is publicly available in respect of the Obligors shall be deemed to have been
notified to the Lender and the Borrower shall not be obliged to notify the Lender of the same.
| 18.6 | Notification
of Default |
| (a) | Each
Obligor shall, and shall procure that each other Transaction Obligor shall, notify the Lender
of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware
of its occurrence (unless that Obligor is aware that a notification has already been provided
by another Obligor). |
| (b) | Promptly
upon a request by the Lender, the Borrower shall supply to the Lender a certificate signed
by two of its directors or senior officers on its behalf certifying that no Default is continuing
(or if a Default is continuing, specifying the Default and the steps, if any, being taken
to remedy it). |
| 18.7 | "Know
your customer" checks |
If:
| (a) | the
introduction of or any change in (or in the interpretation, administration or application
of) any applicable law or regulation made after the date of this Agreement; |
| (b) | any
change in the status of a Transaction Obligor (or the Holding Company of a Transaction Obligor)(including,
without limitation, a change of ownership of a Transaction Obligor or the Holding Company
of a Transaction Obligor) after the date of this Agreement; or |
| (c) | a
proposed assignment by the Lender of any of its rights under this Agreement, obliges
the Lender (or, in the case of paragraph (c) above, any prospective assignee) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly
upon the request of the Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by
the Lender (for itself or, in the case of the event described in paragraph (c) above, on behalf of any prospective assignee) in order
for the Lender or, in the case of the event described in paragraph (c) above, any prospective assignee 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. |
The
undertakings in this Clause 19 (General Undertakings) remain in force throughout the Security Period except as the Lender may
otherwise permit.
Each
Obligor shall, and shall procure that each other Transaction Obligor will, promptly:
| (a) | obtain,
comply with and do all that is necessary to maintain in full force and effect; |
| (b) | supply
certified copies to the Lender of, |
any
Authorisation required under any law or regulation of a Relevant Jurisdiction or the state of the Approved Flag at any time of the Ship
to enable it to:
| (i) | perform
its obligations under the Transaction Documents to which it is a party; |
| (ii) | ensure
the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction
and in the state of the Approved Flag at any time of the Ship of any Transaction Document
to which it is a party; |
| (iii) | own
and operate the Ship (in the case of the Borrower); and |
| (c) | without
prejudice to the generality of the above, ensure that if, but for the obtaining of an Authorisation,
an Obligor would be in breach of any of the provisions of this Agreement which relate to
Sanctions or, by reason of Sanctions, would be prohibited from performing any provision of
this Agreement, such an Authorisation is obtained so as to avoid such breach or to enable
such performance. |
Each
Obligor shall, and shall procure that each other Transaction Obligor will, comply in all respects with all laws and regulations to which
it may be subject, if failure so to comply has or is reasonably likely to have a Material Adverse Effect.
| 19.4 | Environmental
compliance |
Each
Obligor shall, and shall procure that each other Transaction Obligor will, and the Guarantor shall ensure that each other member of the
Group will:
| (a) | comply
with all Environmental Laws; |
| (b) | obtain,
maintain and ensure compliance with all requisite Environmental Approvals; |
| (c) | implement
procedures to monitor compliance with and to prevent liability under any Environmental Law, |
where
failure to do so has or is reasonably likely to have a Material Adverse Effect.
Each
Obligor shall, and shall procure that each other Transaction Obligor will, (through the Guarantor), promptly upon becoming aware of the
same, inform the Lender in writing of:
| (a) | any
Environmental Claim against any member of the Group which is current or pending; and |
| (b) | any
facts or circumstances which would result in any Environmental Claim being commenced against
any member of the Group, |
where
the claim, if determined against that member of the Group, has a Material Adverse Effect.
| (a) | Each
Obligor shall, and shall procure that each other Transaction Obligor will, and the Guarantor
shall ensure that each other member of the Group will pay and discharge all Taxes imposed
upon it or its assets within the time period allowed without incurring penalties unless and
only to the extent that: |
| (i) | such
payment is being contested in good faith; |
| (ii) | adequate
reserves are maintained for those Taxes and the costs required to contest them and both have
been disclosed in its latest financial statements delivered to the Lender under Clause 18.2
(Financial statements); and |
| (iii) | such
payment can be lawfully withheld. |
| (b) | No
member of the Group shall and the Obligors shall procure that no other Transaction Obligor
will, change its residence for Tax purposes. |
Each
Obligor shall, and shall procure that each other Transaction Obligor will, promptly inform the Lender if it delivers to the Registrar
particulars required under the Overseas Regulations of any UK Establishment and it shall comply with any directions given to it by the
Lender regarding the recording of any Transaction Security on the register which it is required to maintain under The Overseas Companies
(Execution of Documents and Registration of Charges) Regulations 2009.
| 19.8 | No
change to centre of main interests |
No
Obligor shall change the location of its centre of main interest (as that term is used in Article 3(1) of the Regulation) from that
stated in relation to it in Clause 17.30 (Centre of main interests and establishments) and it will create no "establishment"
(as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
Each
Obligor shall, and shall procure that each other Transaction Obligor will, ensure that at all times any unsecured and unsubordinated
claims of the Lender against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured
and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.
| (a) | With
effect from the Utilisation Date, the Borrower shall hold the legal title to, and own the
entire beneficial interest in the Ship, the Earnings and the Insurances. |
| (b) | With
effect on and from its creation or intended creation, each Transaction Obligor shall hold
the legal title to, and own the entire beneficial interest in any other assets the subject
of any Transaction Security created or intended to be created by that Transaction Obligor. |
| (a) | No
Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, (and
the Guarantor shall ensure that no other member of the Group will) create or permit to subsist
any Security over any of its assets which are, in the case of members of the Group other
than the Borrower, the subject of the Security created or intended to be created by the Finance
Documents. |
| (i) | sell,
transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased
to or re-acquired by a Transaction Obligor or any other member of the Group; |
| (ii) | sell,
transfer or otherwise dispose of any of its receivables on recourse terms; |
| (iii) | enter
into any arrangement under which money or the benefit of a bank or other account may be applied,
set-off or made subject to a combination of accounts; or |
| (iv) | enter
into any other preferential arrangement having a similar effect, |
in
circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing
the acquisition of an asset.
| (c) | Paragraphs
(a) and (b) above do not apply to any Permitted Security. |
| (a) | The
Borrower shall not enter into a single transaction or a series of transactions (whether related
or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose
of any asset (including without limitation the Ship, the Earnings or the Insurances). |
| (b) | The
Guarantor shall not sell, lease, transfer or otherwise dispose the Ship, the Earnings or
the Insurances. |
| (c) | Paragraphs
(a) and (b) above does not apply to any Charter as all Charters are subject to Clause 21.16
(Restrictions on chartering, appointment of managers etc.). |
Neither
Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, (and the Guarantor shall ensure that no other member
of the Group will) enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction, except for, in respect of
the Guarantor only, any amalgamation, demerger, merger, consolidation or corporate reconstruction which results in the Guarantor being
the surviving entity and the same does not have a Material Adverse Effect. For the avoidance of doubt a stock split or a reverse stock
split pertaining to the share capital of the Guarantor is permissible without the consent of the Lender.
| (a) | The
Guarantor shall procure that no substantial change is made to the general nature of the business
of the Guarantor or the Group from that carried on at the date of this Agreement. |
| (b) | The
Borrower shall not engage in any business other than the ownership and operation of the Ship. |
| 19.15 | Financial
Indebtedness |
Neither
Obligor shall incur or permit to be outstanding any Financial Indebtedness except Permitted Financial Indebtedness.
The
Borrower shall not incur any expenditure, except for expenditure reasonably incurred in the ordinary course of owning, operating, maintaining
and repairing the Ship.
Upon
the occurrence of an Event of Default which is continuing, the Borrower shall not:
| (a) | declare,
make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend,
charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share
capital (or any class of its share capital); |
| (b) | repay
or distribute any dividend or share premium reserve; |
| (c) | pay
any management, advisory or other fee to or to the order of any of its shareholders; or |
| (d) | redeem,
repurchase, defease, retire or repay any of its share capital or resolve to do so. |
| 19.18 | People
of significant control regime |
The
Borrower shall:
| (a) | within
the relevant timeframe, comply with any notice it receives pursuant to Part 21A of the Companies
Act 2006 from any company incorporated in the United Kingdom whose shares are the subject
of the Transaction Security; and |
| (b) | promptly
provide the Lender with a copy of that notice. |
The
Borrower shall not (and in the case of sub-paragraph (d) below the Obligors shall procure that no other Transaction Obligor will):
| (a) | be
the creditor in respect of any loan or any form of credit to any person other than another
Obligor and where such loan or form of credit is Permitted Financial Indebtedness; |
| (b) | give
or allow to be outstanding any guarantee or indemnity to or for the benefit of any person
in respect of any obligation of any other person or enter into any document under which that
Transaction Obligor assumes any liability of any other person other than any guarantee or
indemnity given under the Finance Documents. |
| (c) | enter
into any material agreement other than: |
| (i) | the
Transaction Documents; |
| (ii) | any
other agreement expressly allowed under any other term of this Agreement; and |
| (d) | enter
into any transaction on terms which are, in any respect, less favourable to that Transaction
Obligor than those which it could obtain in a bargain made at arm's length; or |
| (e) | acquire
any shares or other securities other than US or UK Treasury bills and certificates of deposit
issued by major North American or European banks. |
| 19.20 | Unlawfulness,
invalidity and ranking; Security imperilled |
Neither
Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, (and the Guarantor shall procure that no other
member of the Group will) do (or fail to do) or cause or permit another person to do (or omit to do) anything which is likely to:
| (a) | make
it unlawful or contrary to Sanctions for a Transaction Obligor to perform any of its obligations
under the Transaction Documents; |
| (b) | cause
any obligation of a Transaction Obligor under the Transaction Documents to cease to be legal,
valid, binding or enforceable; |
| (c) | cause
any Transaction Document to cease to be in full force and effect; |
| (d) | cause
any Transaction Security to rank after, or lose its priority to, any other Security; and |
| (e) | imperil
or jeopardise the Transaction Security. |
| 19.21 | Sanctions
undertakings |
| (a) | No
proceeds of the Loan or any part of the Loan shall be made available, directly or indirectly,
to or for the benefit of a Prohibited Person nor shall they be otherwise, directly or indirectly,
applied in a manner or for a purpose prohibited by Sanctions, or to fund any activity in
a Sanctioned
Country or in any manner which would cause the Lender to be in breach of or made subject to Sanctions, or at risk of being in breach
of or made subject to Sanctions. |
| (b) | No
Transaction Obligor shall fund all or any part of any payment or repayment under the Loan
out of proceeds directly or indirectly derived from any activity in a Sanctioned Country
or any transaction with a Prohibited Person, or out of proceeds directly or indirectly derived
from any other transactions which would be prohibited by Sanctions or in any other manner
which would cause the Lender to be in breach of or made subject to Sanctions, or at risk
of being in breach of or made subject to Sanctions. |
| (c) | Each
of the Transaction Obligors has implemented and shall maintain in effect a Sanctions compliance
policy which, in accordance with the recommendations of the Sanctions Advisory, is designed
to ensure compliance by each such Transaction Obligor, its Subsidiaries and their respective
directors, officers, employees and agents with Sanctions. Without limitation on the foregoing,
such Sanctions compliance policy shall procure that each Transaction Obligor, its Subsidiaries
and their respective directors, officers, employees and agents shall, where applicable: |
| (i) | conduct
their activities in a manner consistent with Sanctions; |
| (ii) | have
sufficient resources in place to ensure execution of and compliance with their own Sanctions
policies by their personnel, e.g., direct hires, contractors, and staff; |
| (iii) | ensure
Subsidiaries and Affiliates comply with the relevant policies, as applicable; |
| (iv) | have
relevant controls in place to monitor automatic identification system (AIS) transponders; |
| (v) | have
controls in place to screen and assess onboarding or offloading cargo in areas they determine
to present a high risk; |
| (vi) | have
controls to assess authenticity of bills of lading, as necessary; and |
| (vii) | have
controls in place consistent with the Sanctions Advisory. |
| (a) | Each
Obligor shall, and shall procure that each other Transaction Obligor will, promptly, and
in any event within the time period specified by the Lender do all such acts (including procuring
or arranging any registration, notarisation or authentication or the giving of any notice)
or execute or procure execution of all such documents (including assignments, transfers,
mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney),
as the Lender may specify (and in such form as the Lender may require in favour of the Lender
or its nominee(s)): |
| (i) | to
create, perfect, vest in favour of the Lender or protect the priority of the Security or
any right of any kind created or intended to be created under or evidenced by the Finance
Documents (which may include the execution of a mortgage, charge, assignment or other Security
over all or any of the assets which are, or are intended to be, the subject of the Transaction
Security) or for the exercise of any rights, powers and remedies of the Lender or any Receiver
or Delegate provided by or pursuant to the Finance Documents or by law; |
| (ii) | to
confer on the Lender Security over any property and assets of that Transaction Obligor located
in any jurisdiction equivalent or similar to the Security intended to be conferred by or
pursuant to the Finance Documents; |
| (iii) | to
facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant
of, any interest in or right relating to the assets which are, or are intended to be, the
subject of the Transaction Security or to exercise any power specified in any Finance Document
in respect of which the Security has become enforceable; and/or |
| (iv) | to
enable or assist the Lender to enter into any transaction to commence, defend or conduct
any proceedings and/or to take any other action relating to any item of the Security Property. |
| (b) | Each
Obligor shall, and shall procure that each other Transaction Obligor will, take all such
action as is available to it (including making all filings and registrations) as may be necessary
for the purpose of the creation, perfection, protection or maintenance of any Security conferred
or intended to be conferred on the Lender by or pursuant to the Finance Documents. |
| (c) | At
the same time as an Obligor delivers to the Lender any document executed by itself or another
Transaction Obligor pursuant to this Clause 19.22 (Further assurance), that Obligor
shall deliver, or shall procure that such other Transaction Obligor will deliver, to the
Lender a certificate signed by two of that ▇▇▇▇▇▇▇'s or Transaction Obligor's directors or
officers which shall: |
| (i) | set
out the text of a resolution of that ▇▇▇▇▇▇▇'s or Transaction Obligor's directors specifically
authorising the execution of the document specified by the Lender; and |
| (ii) | state
that either the resolution was duly passed at a meeting of the directors validly convened
and held, throughout which a quorum of directors entitled to vote on the resolution was present,
or that the resolution has been signed by all the directors or officers and is valid under
that ▇▇▇▇▇▇▇'s or Transaction Obligor's articles of association or other constitutional documents. |
The
undertakings in this Clause 20 (Insurance Undertakings) remain in force on and from the Utilisation Date and throughout the rest
of the Security Period except as the Lender may otherwise permit.
| 20.2 | Maintenance
of obligatory insurances |
The
Borrower shall keep the Ship insured at its expense against:
| (a) | fire
and usual marine risks (including hull and machinery and excess risks); |
| (c) | protection
and indemnity risks; and |
| (d) | any
other risks against which the Lender considers, having regard to practices and other circumstances
prevailing at the relevant time, it would be reasonable for the Borrower to insure and which
are specified by the Lender by notice to the Borrower. |
| 20.3 | Terms
of obligatory insurances |
The
Borrower shall effect such insurances:
| (b) | in
the case of fire and usual marine risks and war risks, in an amount on an agreed value basis
at least the greater of: |
| (i) | 110
per cent. Of the Loan; and |
| (ii) | the
Market Value of the Ship; |
| (c) | in
the case of oil pollution liability risks, for an aggregate amount equal to the highest level
of cover from time to time available under basic protection and indemnity club entry and
in the international marine insurance market; |
| (d) | in
the case of protection and indemnity risks, in respect of the full tonnage of the Ship; |
| (e) | on
approved terms; and |
| (f) | through
Approved Brokers and with approved insurance companies and/or underwriters or, in the case
of war risks and protection and indemnity risks, in approved war risks and protection and
indemnity risks associations. |
| 20.4 | Further
protections for the Lender |
In
addition to the terms set out in Clause 20.3 (Terms of obligatory insurances), the Borrower shall procure that the obligatory
insurances shall:
| (a) | subject
always to paragraph (b), name the Borrower as the sole named insured unless the interest
of every other named insured is limited: |
| (i) | in
respect of any obligatory insurances for hull and machinery and war risks; |
| (A) | to
any provable out-of-pocket expenses that it has incurred and which form part of any recoverable
claim on underwriters; and |
| (B) | to
any third party liability claims where cover for such claims is provided by the policy (and
then only in respect of discharge of any claims made against it); and |
| (ii) | in
respect of any obligatory insurances for protection and indemnity risks, to any recoveries
it is entitled to make by way of reimbursement following discharge of any third party liability
claims made specifically against it; |
and
every other named insured has undertaken in writing to the Lender (in such form as it requires) that any deductible shall be apportioned
between the Borrower and every other named insured in proportion to the gross claims made or paid by each of them and that it shall do
all things necessary and provide all documents, evidence and information to enable the Lender to collect or recover any moneys which
at any time become payable in respect of the obligatory insurances;
| (b) | whenever
the Lender requires, name (or be amended to name) the Lender as additional named insured
for its rights and interests, warranted no operational interest and with full waiver of rights
of subrogation against the Lender, but without the Lender being liable to pay (but having
the right to pay) premiums, calls or other assessments in respect of such insurance; |
| (c) | name
the Lender as loss payee with such directions for payment as the Lender may specify; |
| (d) | provide
that all payments by or on behalf of the insurers under the obligatory insurances to the
Lender shall be made without set off, counterclaim or deductions or condition whatsoever; |
| (e) | provide
that the obligatory insurances shall be primary without right of contribution from other
insurances which may be carried by the Lender; and |
| (f) | provide
that the Lender may make proof of loss if the Borrower fails to do so. |
| 20.5 | Renewal
of obligatory insurances |
The
Borrower shall:
| (a) | at
least 21 days before the expiry of any obligatory insurance: |
| (i) | notify
the Lender of the Approved Brokers (or other insurers) and any protection and indemnity or
war risks association through or with which the Borrower proposes to renew that obligatory
insurance and of the proposed terms of renewal; and |
| (ii) | obtain
the Lender's approval to the matters referred to in sub-paragraph (i) above; |
| (b) | at
least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance
in accordance with the Lender's approval pursuant to paragraph (a) above; and |
| (c) | procure
that the Approved Brokers and/or the approved war risks and protection and indemnity associations
with which such a renewal is effected shall promptly after the renewal notify the Lender
in writing of the terms and conditions of the renewal. |
| 20.6 | Copies
of policies; letters of undertaking |
The
Borrower shall ensure that the Approved Brokers provide the Lender with:
| (a) | pro
forma copies of all policies relating to the obligatory insurances which they are to
effect or renew; and |
| (b) | a
letter or letters of undertaking in a form required by the Lender and including undertakings
by the Approved Brokers that: |
| (i) | they
will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice
of assignment complying with the provisions of Clause 20.4 (Further protections for the
Lender); |
| (ii) | they
will hold such policies, and the benefit of such insurances, to the order of the Lender in
accordance with such loss payable clause; |
| (iii) | they
will advise the Lender immediately of any material change to the terms of the obligatory
insurances; |
| (iv) | they
will, if they have not received notice of renewal instructions from the Borrower or its agents,
notify the Lender not less than 14 days before the expiry of the obligatory insurances; |
| (v) | if
they receive instructions to renew the obligatory insurances, they will promptly notify the
Lender of the terms of the instructions; |
| (vi) | they
will not set off against any sum recoverable in respect of a claim relating to the Ship under
such obligatory insurances any premiums or other amounts due to them or any other person
whether in respect of the Ship or otherwise, they waive any lien on the policies, or any
sums received under them, which they might have in respect of such premiums or other amounts
and they will not cancel such obligatory insurances by reason of non-payment of such premiums
or other amounts; and |
| (vii) | they
will arrange for a separate policy to be issued in respect of the Ship forthwith upon being
so requested by the Lender. |
| 20.7 | Copies
of certificates of entry |
The
Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship is entered provide the Lender
with:
| (a) | a
certified copy of the certificate of entry for the Ship; |
| (b) | a
letter or letters of undertaking in such form as may be required by the Lender; and |
| (c) | a
certified copy of each certificate of financial responsibility for pollution by oil or other
Environmentally Sensitive Material issued by the relevant certifying authority in relation
to the Ship. |
| 20.8 | Deposit
of original policies |
The
Borrower shall ensure that all policies relating to obligatory insurances are deposited with the Approved Brokers through which the insurances
are effected or renewed.
The
Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances and produce all relevant receipts
when so required by the Lender.
The
Borrower shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain
in full force and effect.
| 20.11 | Compliance
with terms of insurances |
| (a) | The
Borrower shall not do nor omit to do (nor permit to be done or not to be done) any act or
thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable
or render any sum payable under an obligatory insurance repayable in whole or in part. |
| (b) | Without
limiting paragraph (a) above, the Borrower shall: |
| (i) | take
all necessary action and comply with all requirements which may from time to time be applicable
to the obligatory insurances, and (without limiting the obligation contained in sub-paragraph
(iii) of paragraph (b) of Clause 20.6 (Copies of policies; letters of undertaking))
ensure that the obligatory insurances are not made subject to any exclusions or qualifications
to which the Lender has not given its prior approval; |
| (ii) | not
make any changes relating to the classification or classification society or manager or operator
of the Ship approved by the underwriters of the obligatory insurances; |
| (iii) | make
(and promptly supply copies to the Lender of) all quarterly or other voyage declarations
which may be required by the protection and indemnity risks association in which the Ship
is entered to maintain cover for trading to the United States of America and Exclusive Economic
Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation);
and |
| (iv) | not
employ the Ship, nor allow it to be employed, otherwise than in conformity with the terms
and conditions of the obligatory insurances, without first obtaining the consent of the insurers
and complying with any requirements (as to extra premium or otherwise) which the insurers
specify. |
| 20.12 | Alteration
to terms of insurances |
The
Borrower shall not make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory
insurance.
| 20.13 | Settlement
of claims |
The
Borrower shall:
| (a) | not
settle, compromise or abandon any claim under any obligatory insurance for Total Loss or
for a Major Casualty; and |
| (b) | do
all things necessary and provide all documents, evidence and information to enable the Lender
to collect or recover any moneys which at any time become payable in respect of the obligatory
insurances. |
| 20.14 | Provision
of copies of communications |
The
Borrower shall provide the Lender, at the time of each such communication, with copies of all written communications between the Borrower
and:
| (b) | the
approved protection and indemnity and/or war risks associations; and |
| (c) | the
approved insurance companies and/or underwriters, |
which
relate directly or indirectly to:
| (i) | the
Borrower's obligations relating to the obligatory insurances including, without limitation,
all requisite declarations and payments of additional premiums or calls; and |
| (ii) | any
credit arrangements made between the Borrower and any of the persons referred to in paragraphs
(a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory
insurances. |
| 20.15 | Provision
of information |
The
Borrower shall promptly provide the Lender (or any persons which it may designate) with any information which the Lender (or any such
designated person) requests for the purpose of:
| (a) | obtaining
or preparing any report from an independent marine insurance broker as to the adequacy of
the obligatory insurances effected or proposed to be effected; and/or |
| (b) | effecting,
maintaining or renewing any such insurances as are referred to in Clause 20.16 (Mortgagee's
interest, additional perils and political risk insurances) or dealing with or considering
any matters relating to any such insurances, |
and
the Borrower shall, forthwith upon demand, indemnify the Lender in respect of all fees and other expenses incurred by or for the account
of the Lender in connection with any such report as is referred to in paragraph (a) above.
| 20.16 | Mortgagee's
interest, additional perils and political risk insurances |
| (a) | The
Lender shall be entitled from time to time to effect, maintain and renew a mortgagee's interest
marine insurance, a mortgagee's interest additional perils insurance and a mortgagee's political
risk insurance in such amounts, on such terms, through such insurers and generally in such
manner as the Lender may from time to time consider appropriate. |
| (b) | The
Borrower shall upon demand fully indemnify the Lender in respect of all premiums and other
expenses which are incurred in connection with or with a view to effecting, maintaining or
renewing any insurance referred to in paragraph (a) above or dealing with, or considering,
any matter arising out of any such insurance. |
The
undertakings in this Clause 21 (Ship Undertakings) remain in force on and from the Utilisation Date and throughout the rest of
the Security Period except as the Lender may otherwise permit (such permission not to be unreasonably withheld in respect of paragraph
(e) of Clause 21.16 (Restrictions on chartering, appointment of managers etc.) if a provision entitling the Charterer to deactivate
or lay up the Ship is included in any Charter and the relevant charterer thereunder continues to pay the agreed charter hire thereunder).
| 21.2 | Ship's
name and registration |
The
Borrower shall:
| (a) | keep
the Ship registered in its name under the Approved Flag from time to time at its port of
registration; |
| (b) | not
do or allow to be done anything as a result of which such registration might be suspended,
cancelled or imperilled; |
| (c) | not
enter into any dual flagging arrangement in respect of the Ship; and |
| (d) | not
change the name of the Ship, |
provided
that any agreed change of name or flag of the Ship shall be subject to:
| (i) | the
Ship remaining subject to Security securing the Secured Liabilities created by a first priority
or preferred ship mortgage on the Ship and, if appropriate, a first priority deed of covenant
collateral to that mortgage (or equivalent first priority Security) on substantially the
same terms as the Mortgage and on such other terms and in such other form as the Lender shall
approve or require; and |
| (ii) | the
execution of such other documentation amending and supplementing the Finance Documents as
the Lender shall approve or require. |
| 21.3 | Repair
and classification |
The
Borrower shall keep the Ship in a good and safe condition and state of repair:
| (a) | consistent
with first class ship ownership and management practice; and |
| (b) | so
as to maintain the Approved Classification free of recommendations and conditions. |
| 21.4 | Classification
society undertaking |
The
Borrower shall instruct the Approved Classification Society (and procure that the Approved Classification Society undertakes with the
Lender):
| (a) | to
send to the Lender, following receipt of a written request from the Lender, certified true
copies of all original class records held by the Approved Classification Society in relation
to the Ship; |
| (b) | to
allow the Lender (or its agents), at any time and from time to time, to inspect the original
class and related records of the Borrower and the Ship at the offices of the Approved Classification
Society and to take copies of them; |
| (c) | to
notify the Lender immediately in writing if the Approved Classification Society: |
| (i) | receives
notification from the Borrower or any person that the Ship's Approved Classification Society
is to be changed; or |
| (ii) | becomes
aware of any facts or matters which may result in or have resulted in a change, suspension,
discontinuance, withdrawal or expiry of the Ship's class under the rules or terms and conditions
of the Borrower or the Ship's membership of the Approved Classification Society; |
| (d) | following
receipt of a written request from the Lender: |
| (i) | to
confirm that the Borrower is not in default of any of its contractual obligations or liabilities
to the Approved Classification Society, including confirmation that it has paid |
in
full all fees or other charges due and payable to the Approved Classification Society; or
| (ii) | to
confirm that the Borrower is in default of any of its contractual obligations or liabilities
to the Approved Classification Society, to specify to the Lender in reasonable detail the
facts and circumstances of such default, the consequences of such default, and any remedy
period agreed or allowed by the Approved Classification Society. |
The
Borrower shall not make any modification or repairs to, or replacement of, the Ship or equipment installed on it which would or might
materially alter the structure, type or performance characteristics of the Ship or materially reduce its value.
| 21.6 | Removal
and installation of parts |
| (a) | Subject
to paragraph (b) below, the Borrower shall not remove any material part of the Ship, or any
item of equipment installed on the Ship unless: |
| (i) | the
part or item so removed is forthwith replaced by a suitable part or item which is in the
same condition as or better condition than the part or item removed; |
| (ii) | the
replacement part or item is free from any Security in favour of any person other than the
Lender; and |
| (iii) | the
replacement part or item becomes, on installation on the Ship, the property of the Borrower
and subject to the security constituted by the Mortgage. |
| (b) | The
Borrower may install equipment owned by a third party if the equipment can be removed without
any risk of damage to the Ship. |
The
Borrower shall submit the Ship regularly to all periodic or other surveys which may be required for classification purposes and, if so
required by the Lender, provide the Lender, with copies of all survey reports.
The
Borrower shall permit the Lender (acting through surveyors or other persons appointed by it for that purpose) to board the Ship at all
reasonable times to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities
for such inspections.
| 21.9 | Prevention
of and release from arrest |
| (a) | The
Borrower shall promptly discharge: |
| (i) | all
liabilities which give or may give rise to maritime or possessory liens on or claims enforceable
against the Ship, the Earnings or the Insurances; |
| (ii) | all
Taxes, dues and other amounts charged in respect of the Ship, the Earnings or the Insurances;
and |
| (iii) | all
other outgoings whatsoever in respect of the Ship, the Earnings or the Insurances. |
| (b) | The
Borrower shall, immediately upon receiving notice of the arrest of the Ship or of its detention
in exercise or purported exercise of any lien or claim, take all steps necessary to procure
its release by providing bail or otherwise as the circumstances may require. |
| 21.10 | Compliance
with laws etc. |
The
Borrower shall:
| (a) | comply,
or procure compliance with all laws or regulations: |
| (i) | relating
to its business generally; and |
| (ii) | relating
to the Ship, its ownership, employment, operation, management and registration, |
including,
but not limited to:
| (C) | all
Environmental Laws; |
| (E) | the
laws of the Approved Flag; and |
| (b) | obtain,
comply with and do all that is necessary to maintain in full force and effect any Environmental
Approvals. |
Without
limiting paragraph (a) of Clause 21.10 (Compliance with laws etc.), the Borrower shall:
| (a) | procure
that the Ship and the company responsible for the Ship's compliance with the ISPS Code comply
with the ISPS Code; and |
| (b) | maintain
an ISSC for the Ship; and |
| (c) | notify
the Lender immediately in writing of any actual or threatened withdrawal, suspension, cancellation
or modification of the ISSC. |
| 21.12 | Sanctions
and Ship trading |
Without
limiting Clause 21.10 (Compliance with laws etc.), the Borrower shall procure:
| (a) | that
the Ship shall not be used by or for the benefit of a Prohibited Person or in trading to
or from a Sanctioned Country; |
| (b) | that
the Ship shall not otherwise be used in any manner contrary to Sanctions, or in a manner
that creates a risk that a Transaction Obligor will become a Prohibited Person or in any
manner which
would cause the Lender to be in breach of or made subject to Sanctions, or at risk of being in breach of or made subject to Sanctions; |
| (c) | that
the Ship shall not be used in trading in any manner that creates a risk that the Ship will
become a Sanctioned Ship; |
| (d) | that
the Ship shall not be traded in any manner which would trigger the operation of any sanctions
limitation or exclusion clause (or similar) in the Insurances; and |
| (e) | without
prejudice to the above provisions of this Clause 21.12 (Sanctions and Ship trading),
that each time charterparty in respect of the Ship shall contain, for the benefit of the
Borrower, language which gives effect to the provisions of paragraph (a) of Clause 21.10
(Compliance with laws etc.) as regards Sanctions and paragraph (b) and (c) of this
Clause 21.12 (Sanctions and Ship trading) and which charterparty permits refusal of
employment or voyage orders if such employment or compliance with such orders either results,
or risks resulting in non-compliance with such provisions or breaches, or risks breaching
(in the opinion of the Borrower) Sanctions. |
| 21.13 | Trading
in war zones or excluded areas |
The
Borrower shall not cause or permit the Ship to enter or trade to any zone which is declared a war zone by any government or by the Ship's
war risks insurers or which is otherwise excluded from the scope of coverage of the obligatory insurances unless:
| (a) | the
prior written consent of the Lender has been given; and |
| (b) | the
Borrower has (at its expense) effected any special, additional or modified insurance cover
which the Lender may require. |
| 21.14 | Provision
of information |
Without
prejudice to Clause 18.5 (Information: miscellaneous) the Borrower shall promptly provide the Lender with any information which
it requests regarding:
| (a) | the
Ship, its employment, position and engagements; |
| (b) | the
Earnings and payments and amounts due to its master and crew; |
| (c) | any
expenditure incurred, or likely to be incurred, in connection with the operation, maintenance
or repair of the Ship and any payments made by it in respect of the Ship; |
| (d) | any
towages and salvages; and |
| (e) | its
compliance, the Approved Manager's compliance and the compliance of the Ship with the ISM
Code and the ISPS Code, |
and,
upon the Lender's request, promptly provide copies of any current Charter relating to the Ship, of any current guarantee of any such
Charter, the Ship's Safety Management Certificate and any relevant Document of Compliance.
| 21.15 | Notification
of certain events |
The
Borrower shall immediately notify the Lender by fax, confirmed forthwith by letter, of:
| (a) | any
casualty to the Ship which is or is likely to be or to become a Major Casualty; |
| (b) | any
occurrence as a result of which the Ship has become or is, by the passing of time or otherwise,
likely to become a Total Loss; |
| (c) | any
requisition of the Ship for hire; |
| (d) | any
requirement or recommendation made in relation to the Ship by any insurer or classification
society or by any competent authority which is not immediately complied with; |
| (e) | any
arrest or detention of the Ship or any exercise or purported exercise of any lien on the
Ship or the Earnings; |
| (f) | any
intended dry docking of the Ship; |
| (g) | any
Environmental Claim made against the Borrower or in connection with the Ship, or any Environmental
Incident; |
| (h) | any
claim for breach of the ISM Code or the ISPS Code being made against the Borrower, an Approved
Manager or otherwise in connection with the Ship; |
| (i) | any
other matter, event or incident, actual or threatened, the effect of which will or could
lead to the ISM Code or the ISPS Code not being complied with, |
| (j) | any
notice, or the Borrower becoming aware, of any claim, action, suit, proceeding or investigation
against any Transaction Obligor, any of its Subsidiaries or any of their respective directors,
officers, employees or agents with respect to Sanctions; or |
| (k) | any
circumstances which could give rise to a breach of any representation or undertaking in this
Agreement, or any Event of Default, relating to Sanctions, |
and
the Borrower shall keep the Lender advised in writing on a regular basis and in such detail as the Lender shall require as to the Borrower's,
any such Approved Manager's or any other person's response to any of those events or matters.
| 21.16 | Restrictions
on chartering, appointment of managers etc. |
The
Borrower shall not:
| (a) | let
the Ship on demise charter for any period; |
| (b) | enter
into any time, voyage or consecutive voyage charter in respect of the Ship other than a Permitted
Charter; |
| (c) | make
any material amendments or supplements to the Management Agreement or terminate a Management
Agreement; |
| (d) | appoint
a manager of the Ship other than the Approved Manager or agree to any alteration to the terms
of an Approved Manager’s appointment; |
| (e) | de
activate or lay up the Ship; or |
| (f) | put
the Ship into the possession of any person for the purpose of work being done upon it in
an amount exceeding or likely to exceed US1,000,000 (or the equivalent in any other currency)
unless that person has first given to the Lender and in terms satisfactory to it a written undertaking
not to exercise any lien on the Ship or the Earnings for the cost of such work or for any other reason. |
For
the purposes of this Clause 21.16 (Restrictions on chartering, appointment of managers etc.), "material amendments or supplements"
and/or "material alteration" include, without limitation, a change to (i) any management or other fee, (ii) the parties to
the Management Agreement, (iii) the duration, the scope of the services provided under the Management Agreement and/or the termination
rights or the ability by any party to terminate thereunder or (iv) the governing law and jurisdiction.
The
Borrower shall keep the Mortgage registered against the Ship as a valid first preferred mortgage, carry on board the Ship a certified
copy of the Mortgage and place and maintain in a conspicuous place in the navigation room and the master's cabin of the Ship a framed
printed notice stating that the Ship is mortgaged by the Borrower to the Lender.
The
Borrower shall not enter into any agreement or arrangement for the sharing of any Earnings.
| 21.19 | Inventory
of Hazardous Materials |
The
Borrower shall maintain the Inventory of Hazardous Materials.
| 21.20 | Notification
of compliance |
The
Borrower shall promptly provide the Lender from time to time with evidence (in such form as the Lender requires) that it is complying
with this Clause 21 (Ship Undertakings).
| 22.1 | Minimum
required security cover |
Clause
22.2 (Provision of additional security; prepayment) applies if the Lender notifies the Borrower that:
| (a) | the
Market Value of the Ship; plus |
| (b) | the
net realisable value of additional Security previously provided under this Clause 22 (Security
Cover), |
(items
(a) and (b) collectively known as "Security Cover")
is
below 120% of the Loan.
| 22.2 | Provision
of additional security; prepayment |
| (a) | If
the Lender serves a notice on the Borrower under Clause 22.1 (Minimum required security
cover), the Borrower shall, on or before the date falling one Month after the date on
which the Lender's notice is served (the "Prepayment Date"), prepay such
part of the Loan as shall eliminate the shortfall. |
| (b) | The
Borrower may, at its option, notifying the Lender in writing that it elects to, instead of
making a prepayment as described in paragraph (a) above, provide, or ensure that a third
party has provided, additional security of such type and in such form as are acceptable to
the Lender, and further which, in the opinion of the Lender: |
| (i) | has
a net realisable value at least equal to the shortfall; and |
| (ii) | is
documented in such terms as the Lender may approve or require, |
before
the Prepayment Date and conditional upon such security being provided in such manner, it shall satisfy such prepayment obligation.
| 22.3 | Value
of additional vessel security |
The
net realisable value of any additional security which is provided under Clause 22.2 (Provision of additional security; prepayment)
which constitutes a Security over a vessel shall be the Market Value of the vessel concerned.
Any
valuation under this Clause 22 (Security Cover) shall be binding and conclusive as regards the Borrower.
| 22.5 | Provision
of information |
| (a) | The
Borrower shall promptly provide the Lender and any shipbroker acting under this Clause 22
(Security Cover) with any information which the Lender or the shipbroker may request
for the purposes of the valuation. |
| (b) | If
the Borrower fails to provide the information referred to in paragraph (a) above by the date
specified in the request, the valuation may be made on any basis and assumptions which the
shipbroker or the Lender considers prudent. |
Any
prepayment pursuant to Clause 22.2 (Provision of additional security; prepayment) shall be made in accordance with the relevant
provisions of Clause 7 (Prepayment and Cancellation) and shall be treated as a voluntary prepayment pursuant to Clause 7.3 (Voluntary
prepayment of Loan) without the application of any prepayment fee.
| 22.7 | Provision
of valuations |
The
Borrower shall provide the Lender with a valuation of the Ship and any other vessel over which additional Security has been created in
accordance with Clause 22.2 (Provision of additional security; prepayment), from an Approved Valuer, addressed to the Lender,
to enable the Lender to determine the Market Value of the Ship once each calendar year; and at the Lender's request following the occurrence
of an Event of Default, in each case, at the Borrower's cost.
| 22.8 | Release
of additionally security |
If
the Security Cover calculated in accordance with Clause 22.1 (Minimum required security cover) at any relevant time exceeds 120%
of the Loan and the Borrower has previously provided
additional security pursuant to this Clause 22.2 (Provision of additional security; prepayment), the Lender shall
release any such additional security to the Borrower at the Borrower’s cost Provided that (i) no Event of Default has occurred
or will result from such release and (ii) the relevant ratio is not less than 120% of the Loan following such release.
| 23 | Application
of Earnings |
The
Borrower may not, without the prior consent of the Lender, maintain any bank account other than the designated account(s) in connection
with the Earnings of the Ship.
The
Borrower shall ensure that the Earnings shall be dealt with in accordance with the provisions of the General Assignment and Earnings
shall remain at free disposal of Borrower until an Event of Default occurs and is continuing.
Each
of the events or circumstances set out in this Clause 24 (Events of Default) is an Event of Default except for Clause 24.20 (Acceleration)
and Clause 24.21 (Enforcement of security).
A
Transaction Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency
in which it is expressed to be payable within 3 Business Days of its due date or 5 Business Days of its demand, as applicable, unless:
| (a) | its
failure to pay is caused by: |
| (i) | administrative
or technical error; or |
| (ii) | a
Disruption Event; and |
| (b) | payment
is made within 7 Business Days of its due date. |
A
breach occurs of Clause 4.4 (Waiver of conditions precedent), Clause 19.10 (Title), Clause 19.11 (Negative pledge),
Clause 19.20 (Unlawfulness, invalidity and ranking; Security imperilled), Clause 19.21 (Sanctions Undertakings), Clause
20.2 (Maintenance of obligatory insurances), Clause 20.3 (Terms of obligatory insurances), Clause 20.5 (Renewal of obligatory
insurances), Clause 21.12 (Sanctions and Ship trading) or, save to the extent such breach is a failure to pay and therefore
subject to Clause 24.2 (Non-payment), Clause 22 (Security Cover).
A
Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.2 (Non-payment)
and Clause 24.3 (Specific obligations)) and such failure to comply is capable of remedy and is not remedied within 10 days of
the Lender giving
notice to the Borrower or (if earlier) any Transaction Obligor becoming aware of the failure to comply.
Any
representation or statement made or deemed to be made by a Transaction Obligor in the Finance Documents or any other document delivered
by or on behalf of any Transaction Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading
in any material respect when made or deemed to be made.
| (a) | The
sum of Financial Indebtedness (equal or is in excess of Cross Default Threshold) of an Obligor
is not paid when due nor within any originally applicable grace period. |
| (b) | Any
Financial Indebtedness (equal or is in excess of Cross Default Threshold) of an Obligor is
declared to be or otherwise becomes due and payable prior to its specified maturity as a
result of an event of default (however described). |
| (c) | Any
commitment for any Financial Indebtedness (equal or is in excess of Cross Default Threshold)
of an Obligor is cancelled or suspended by a creditor of an Obligor as a result of an event
of default which is continuing (however described). |
| (d) | Any
creditor of an Obligor becomes entitled to declare any Financial Indebtedness (equal or is
in excess of Cross Default Threshold) of an Obligor due and payable prior to its specified
maturity as a result of an event of default which is continuing (however described). |
| (e) | In
relation to paragraphs (a) to (d) above, "Cross Default Threshold" means US$1,000,000
and such amount shall apply to each Obligor individually and such amount shall not apply
to the Obligors on an aggregate basis. |
| (a) | Any
Transaction Obligor: |
| (i) | is
unable or admits inability to pay its debts as they fall due; |
| (ii) | is
deemed to, or is declared to, be unable to pay its debts under applicable law; |
| (iii) | suspends
or threatens to suspend making payments on any of its debts; or |
| (iv) | by
reason of actual or anticipated financial difficulties, commences negotiations with one or
more of its creditors (excluding the Lender in its capacity as such) with a view to rescheduling
any of its indebtedness. |
| (b) | The
value of the assets of any Transaction Obligor is less than its liabilities (taking into
account contingent and prospective liabilities). |
| (c) | A
moratorium is declared in respect of any indebtedness of any Transaction Obligor. If a moratorium
occurs, the ending of the moratorium will not remedy any Event of Default caused by that
moratorium. |
| 24.8 | Insolvency
proceedings |
| (a) | Any
corporate action, legal proceedings or other procedure or step is taken in relation to: |
| (i) | the
suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration
or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of
any Transaction Obligor; |
| (ii) | a
composition, compromise, assignment or arrangement with any creditor of any Transaction Obligor; |
| (iii) | the
appointment of a liquidator, receiver, administrator, administrative receiver, compulsory
manager or other similar officer in respect of any Transaction Obligor or any of its assets;
or |
| (iv) | enforcement
of any Security over (i) any assets of any Borrower or (ii) significant portion of any assets
of any Transaction Obligor (other than the Borrower), |
or
any analogous procedure or step is taken in any jurisdiction.
| (b) | Paragraph
(a) above shall not apply to any winding-up petition which is frivolous or vexatious and
is discharged, stayed or dismissed within 14 days of commencement. |
Any
expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets
of a Transaction Obligor.
| (a) | The
shares (or any part thereof) of the Guarantor cease to be quoted on the Nasdaq Capital Market
or any other Nasdaq Market Tier or any other internationally recognised stock exchange acceptable
to the Lender. |
| (b) | The
Borrower is not or ceases to be a 100 per cent. directly owned by the Guarantor. |
| (c) | After
the date of this Agreement any person or group of persons acting in concert gains control
of the Guarantor other than the Disclosed Persons. |
| (d) | For
the purpose of paragraph (c) above "control" means 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 the Guarantor; or |
| (ii) | appoint
or remove all, or the majority, of the directors or other equivalent officers of the Guarantor;
or |
| (iii) | give
directions with respect to the operating and financial policies of the Guarantor with which
the directors or other equivalent officers of the Guarantor are obliged to comply. |
For
the purpose of paragraph (c) above "acting in concert" means a group of persons who, pursuant to an agreement or understanding
(whether formal or informal), actively co-operate, through
the acquisition directly or indirectly of shares in the Guarantor by any of them, either directly or indirectly, to obtain or consolidate
control of the Guarantor.
| 24.11 | Unlawfulness,
invalidity and ranking |
| (a) | It
is or becomes unlawful for a Transaction Obligor to perform any of its obligations under
the Finance Documents to which it is a party. |
| (b) | Any
obligation of a Transaction Obligor under the Finance Documents to which it is a party is
not or ceases to be legal, valid, binding or enforceable. |
| (c) | Any
Finance Document ceases to be in full force and effect or to be continuing or is or purports
to be determined or any Transaction Security is alleged by a party to it (other than the
Lender) to be ineffective. |
| (d) | Any
Transaction Security proves to have ranked after, or loses its priority to, any other Security. |
Any
Security created or intended to be created by a Finance Document is in any way imperilled or in jeopardy.
| 24.13 | Cessation
of business |
Any
Transaction Obligor suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business.
Any
arrest of the Ship or its detention in the exercise or the purported exercise of any lien or claim unless it is redelivered to the full
control of the Borrower within:
| (a) | 30
days if the Ship is off-hire; or |
| (b) | 45
days of the Ship is on-hire, |
of
such arrest or detention.
The
authority or ability of any member of the Group to conduct its business is limited or wholly or substantially curtailed by any seizure,
expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority
or other person in relation to any Transaction Obligor or any of its assets other than:
| (a) | an
arrest or detention of the Ship referred to in Clause 24.14 (Arrest); or |
| 24.16 | Repudiation
and rescission of agreements |
A
Transaction Obligor rescinds or purports to rescind or repudiates or purports to repudiate a Transaction Document to which it is a party
or any of the Transaction Security or evidences an intention to rescind or repudiate a Transaction Document or any Transaction Security.
Any
litigation, arbitration or administrative proceedings or investigations of, or before, any court, arbitral body or agency are started
or threatened, or any judgment or order of a court, arbitral body or agency is made, in relation to any of the Transaction Documents
or the transactions contemplated in any of the Transaction Documents or its assets which has or is reasonably likely to result in liability
equal or exceeding US$5,000,000.
| (a) | Any
Transaction Obligor or any of their respective Subsidiaries, directors, officers, employees
or agents is designated a Prohibited Person or the Ship is designated a Sanctioned Ship. |
| (b) | This
Clause 24.18 (Sanctions) is without prejudice to any other Event of Default which
may occur by reason of breach of, or non-compliance with, any of the other provisions of
this Agreement which relate to Sanctions. |
| 24.19 | Material
adverse change |
Any
event or circumstance occurs which has a Material Adverse Effect.
On
and at any time after the occurrence of an Event of Default which is continuing, the Lender may by notice to the Borrower:
| (a) | cancel
the Commitment, whereupon it shall immediately be cancelled; |
| (b) | declare
that all or part of the Loan, together with accrued interest, and all other amounts accrued
or outstanding under the Finance Documents be immediately due and payable, whereupon it shall
become immediately due and payable; and/or |
| (c) | declare
that all or part of the Loan be payable on demand, whereupon it shall immediately become
payable on demand by the Lender, |
and
the Lender may serve notices under paragraphs (a), (b) and (c) above simultaneously or on different dates and the Lender may take any
action referred to in Clause 24.21 (Enforcement of security) if no such notice is served or simultaneously with or at any time
after the service of any of such notice.
| 24.21 | Enforcement
of security |
On
and at any time after the occurrence of an Event of Default which is continuing the Lender may take any action which, as a result of
the Event of Default or any notice served under Clause 24.20 (Acceleration), the Lender is entitled to take under any Finance
Document or any applicable law or regulation.
Section
9
Changes to the Parties
| 25.1 | Assignment
by the Lender |
Subject
to this Clause 25 (Changes to the Lender), the Lender (the "Existing Lender") may assign any of its rights under
the Finance Documents to a reliable Japanese bank or leasing company which is regularly engaged or established for the purpose of making
loans, securities of financial assets (the "New Lender") with prior written notice to the Borrower.
| 25.2 | Conditions
of assignment |
| (a) | Prior
to assignment pursuant to Clause 25.1 (Assignment by the Lender) stating the assignment
consideration agreed between the Existing Lender and the New Lender (the "Loan Transfer
Price"), a notice of assignment shall be given by the relevant Existing Lender to
the Borrower and provided that no Event of Default has occurred which is continuing, the
Obligors shall have the right to prepay within 30 days of such notification to the Lender
an amount equal to the Loan Transfer Price and following such prepayment, the same shall
extinguish the Obligors' obligations with respect to such part of the Loan. |
| (i) | the
Existing Lender assigns any of its rights or transfers its right and obligations under the
Finance Documents or changes its Facility Office; and |
| (ii) | as
a result of circumstances existing at the date the assignment, transfer or change occurs,
a Transaction Obligor would be obliged to make a payment to the New Lender or the Existing
Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities)
or under that Clause as incorporated by reference or in full in any other Finance Document
or Clause 13 (Increased Costs), |
then
the New Lender or the Existing Lender acting through its new Facility Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender would have been if the assignment, transfer or change had not occurred.
| (c) | Each
Obligor on behalf of itself and each Transaction Obligor agrees that all rights and interests
(present, future or contingent) which the Existing Lender has under or by virtue of the Finance
Documents are assigned to the New Lender absolutely, free of any defects in the Existing
▇▇▇▇▇▇'s title and of any rights or equities which the Borrower or any other Transaction
Obligor had against the Existing Lender. |
| 25.3 | Security
over ▇▇▇▇▇▇'s rights |
In
addition to the other rights provided to the Lender under this Clause 25 (Changes to the Lender), the Lender may without consulting
with or obtaining consent from any Transaction Obligor, at any time charge, assign or otherwise create Security in or over (whether by
way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of the Lender including, without
limitation:
| (a) | any
charge, assignment or other Security to secure obligations to a federal reserve or central
bank; and |
| (b) | if
the Lender is a fund, any charge, assignment or other Security granted to any holders (or
trustee or representatives of holders) of obligations owed, or securities issued, by the
Lender as security for those obligations or securities, |
except
that no such charge, assignment or Security shall:
| (i) | release
the Lender from any of its obligations under the Finance Documents or substitute the beneficiary
of the relevant charge, assignment or Security for the Lender as a party to any of the Finance
Documents; or |
| (ii) | require
any payments to be made by a Transaction Obligor other than or in excess of, or grant to
any person any more extensive rights than, those required to be made or granted to the Lender
under the Finance Documents. |
| 26 | Changes
to the Transaction Obligors |
No
Transaction Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
Section
10
Administration
| 27.1 | Payments
to the Lender |
| (a) | On
each date on which a Transaction Obligor is required to make a payment under a Finance Document,
that Transaction Obligor shall make an amount equal to such payment available to the Lender
(unless a contrary indication appears in a Finance Document) for value on the due date and
ensure that payment is made not later than close of business New York time on the due date
(provided that a copy of the relevant SWIFT message is provided to the Lender to evidence
such payment was made prior to close of business New York time on the due date) and in such
funds specified by the Lender as being customary at the time for settlement of transactions
in the relevant currency in the place of payment. |
| (b) | Payment
shall be made to such account in the principal financial centre of the country of that currency
(or, in relation to euro, in a principal financial centre in such Participating Member State
or London, as specified by the Lender) and with such bank as the Lender, in each case, specifies. |
| 27.2 | Application
of receipts; partial payments |
| (a) | If
the Lender receives a payment that is insufficient to discharge all the amounts then due
and payable by a Transaction Obligor under the Finance Documents, the Lender may apply that
payment towards the obligations of that Transaction Obligor under the Finance Documents in
any manner it may decide. |
| (b) | Paragraph
(a) above will override any appropriation made by a Transaction Obligor. |
| 27.3 | No
set-off by Transaction Obligors |
All
payments to be made by a Transaction Obligor under the Finance Documents shall be calculated and be made without (and free and clear
of any deduction for) set-off or counterclaim.
| (a) | Any
payment under the Finance Documents which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar month (if there is one) or
the preceding Business Day (if there is not). |
| (b) | During
any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement
interest is payable on the principal or Unpaid Sum at the rate payable on the original due
date. |
| (a) | Subject
to paragraphs (b) and (c) below, dollar is the currency of account and payment for any sum
due from a Transaction Obligor under any Finance Document. |
| (b) | Each
payment in respect of costs, expenses or Taxes shall be made in the currency in which the
costs, expenses or Taxes are incurred. |
| (c) | Any
amount expressed to be payable in a currency other than dollar shall be paid in that other
currency. |
| (a) | Unless
otherwise prohibited by law, if more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful currency of that country, then: |
| (i) | any
reference in the Finance Documents to, and any obligations arising under the Finance Documents
in, the currency of that country shall be translated into, or paid in, the currency or currency
unit of that country designated by the Lender (after consultation with the Borrower); and |
| (ii) | any
translation from one currency or currency unit to another shall be at the official rate of
exchange recognised by the central bank for the conversion of that currency or currency unit
into the other, rounded up or down by the Lender (acting reasonably). |
| (b) | If
a change in any currency of a country occurs, this Agreement will, to the extent the Lender
(acting reasonably and after consultation with the Borrower) specifies to be necessary, be
amended to comply with any generally accepted conventions and market practice in the Relevant
Market and otherwise to reflect the change in currency. |
The
obligations of any Transaction Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency
purchased after deducting the costs of conversion.
| 27.8 | Disruption
to Payment Systems etc. |
If
either the Lender determines (in its discretion) that a Disruption Event has occurred or the Lender is notified by the Borrower that
a Disruption Event has occurred:
| (a) | the
Lender may, and shall if requested to do so by the Borrower, consult with the Borrower with
a view to agreeing with the Borrower such changes to the operation or administration of the
Facility as the Lender may deem necessary in the circumstances; |
| (b) | the
Lender shall not be obliged to consult with the Borrower in relation to any changes mentioned
in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances
and, in any event, shall have no obligation to agree to such changes; |
| (c) | any
such changes agreed upon by the Lender and the Borrower shall (whether or not it is finally
determined that a Disruption Event has occurred) be binding upon the Parties and any Transaction
Obligors as an amendment to (or, as the case may be, waiver of) the terms of the Finance
Documents; |
| (d) | the
Lender shall not be liable for any damages, costs or losses to any person, any diminution
in value or any liability whatsoever (including, without limitation for negligence, gross
negligence or any other category of liability whatsoever but not including any claim based
on the
fraud of the Lender) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause
27.8 (Disruption to Payment Systems etc.). |
The
Lender may set off any amount due and payable from a Transaction Obligor under the Finance Documents (to the extent beneficially owned
by the Lender) against any amount owed by the Lender to that Transaction Obligor, regardless of the place of payment, booking branch
or currency of such amount. If the obligations are in different currencies, the Lender may convert the relevant amount at a market rate
of exchange of a first class Japanese bank and will notify the relevant exchange rate to the Borrower prior to such.
| 29 | Conduct
of Business by the Lender |
No
provision of this Agreement will:
| (a) | interfere
with the right of the Lender to arrange its affairs (tax or otherwise) in whatever manner
it thinks fit; |
| (b) | oblige
the Lender to investigate or claim any credit, relief, remission or repayment available to
it or the extent, order and manner of any claim; or |
| (c) | oblige
the Lender to disclose any information relating to its affairs (tax or otherwise) or any
computations in respect of Tax. |
Notwithstanding
any other term of any Finance Document or any other agreement, arrangement or understanding between the parties to a Finance Document,
each Party acknowledges and accepts that any liability of any party to a Finance Document 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 |
| (b) | a
variation of any term of any Finance Document to the extent necessary to give effect to any
Bail-In Action in relation to any such liability. |
| 31.1 | Communications
in writing |
Any
communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may
be made by fax or letter.
The
address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for
any communication or document to be made or delivered under or in connection with the Finance Documents are:
| (a) | in
the case of the Borrower, that specified in Schedule 1 (The Parties); and |
| (b) | in
the case of any other Obligor or the Lender, that specified in Schedule 1 (The Parties)
or, if it becomes a Party after the date of this Agreement, that notified in writing to the
Lender on or before the date on which it becomes a Party; |
or
any substitute address, fax number or department or officer as an Obligor may notify to the Lender (or the Lender may notify to the other
Parties, if a change is made by the Lender) by not less than five Business Days' notice.
| (a) | Any
communication or document made or delivered by one person to another under or in connection
with the Finance Documents will only be effective: |
| (i) | if
by way of fax, when received in legible form; or |
| (ii) | if
by way of letter, when it has been left at the relevant address or five Business Days after
being deposited in the post postage prepaid in an envelope addressed to it at that address, |
and,
if a particular department or officer is specified as part of its address details provided under Clause 31.2 (Addresses), if addressed
to that department or officer.
| (b) | Any
communication or document to be made or delivered to the Lender will be effective only when
actually received by it and then only if it is expressly marked for the attention of the
department or officer of the Lender specified in Schedule 1 (The Parties) (or any
substitute department or officer as the Lender shall specify for this purpose). |
| (c) | Any
communication or document made or delivered to the Borrower in accordance with this Clause
will be deemed to have been made or delivered to each of the Transaction Obligors. |
| (d) | Any
communication or document which becomes effective, in accordance with paragraphs (a) to (c)
above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on
the following day. |
| 31.4 | Electronic
communication |
| (a) | Any
communication to be made or document to be delivered by one Party to another under or in
connection with the Finance Documents may be made or delivered by electronic mail or other
electronic means (including, without limitation, by way of posting to a secure website) if
those two Parties: |
| (i) | notify
each other in writing of their electronic mail address and/or any other information required
to enable the transmission of information by that means; and |
| (ii) | notify
each other of any change to their address or any other such information supplied by them
by not less than five Business Days' notice. |
| (b) | Any
such electronic communication or delivery as specified in paragraph (a) above to be made
between an Obligor and the Lender may only be made in that way to the extent that those two
Parties agree that, unless and until notified to the contrary, this is to be an accepted
form of communication or delivery. |
| (c) | Any
such electronic communication or document as specified in paragraph (a) above made or delivered
by one Party to another will be effective only when actually received (or made available)
in readable form and in the case of any electronic communication or document made or delivered
by a Party to the Lender only if it is addressed in such a manner as the Lender shall specify
for this purpose. |
| (d) | Any
electronic communication or document which becomes effective, in accordance with paragraph
(c) above, after 5.00 p.m. in the place in which the Party to whom the relevant communication
or document is sent or made available has its address for the purpose of this Agreement shall
be deemed only to become effective on the following day. |
| (e) | Any
reference in a Finance Document to a communication being sent or received or a document being
delivered shall be construed to include that communication or document being made available
in accordance with this Clause 31.4 (Electronic communication). |
| (a) | Any
notice given under or in connection with any Finance Document must be in English. |
| (b) | All
other documents provided under or in connection with any Finance Document must be: |
| (ii) | if
not in English, and if so required by the Lender, accompanied by a certified English translation
prepared by a translator approved by the Lender and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other official document. |
| 32 | Calculations
and Certificates |
In
any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained
by the Lender are prima facie evidence of the matters to which they relate.
| 32.2 | Certificates
and determinations |
Any
certification or determination by the Lender of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
Any
interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Market differs, in accordance with that
market practice.
If,
at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining provisions under the law of that jurisdiction nor the
legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
| (a) | No
failure to exercise, nor any delay in exercising, on the part of the Lender or any Receiver
or Delegate, any right or remedy under a Finance Document shall operate as a waiver of any
such right or remedy or constitute an election to affirm any Finance Document. No election
to affirm any Finance Document on the part of the Lender or any Receiver or Delegate shall
be effective unless it is in writing. No single or partial exercise of any right or remedy
shall prevent any further or other exercise or the exercise of any other right or remedy.
The rights and remedies provided in each Finance Document are cumulative and not exclusive
of any rights or remedies provided by law. |
| (b) | No
variation or amendment of a Finance Document shall be valid unless in writing and signed
by the Lender. |
| (a) | This
Agreement, in conjunction with the other Finance Documents, constitutes the entire agreement
between the Parties and supersedes all previous agreements, understandings and arrangements
between them, whether in writing or oral, in respect of its subject matter. |
| (b) | Each
Obligor acknowledges that it has not entered into this Agreement or any other Finance Document
in reliance on, and shall have no remedies in respect of, any representation or warranty
that is not expressly set out in this Agreement or in any other Finance Document. |
| 36 | Settlement
or Discharge Conditional |
Any
settlement or discharge under any Finance Document between the Lender and any Transaction Obligor shall be conditional upon no security
or payment to the Lender by any Transaction Obligor or any other person being set aside, adjusted or ordered to be repaid, whether under
any insolvency law or otherwise.
If
the Lender considers that an amount paid or discharged by, or on behalf of, a Transaction Obligor or by any other person in purported
payment or discharge of an obligation of that Transaction Obligor to the Lender under the Finance Documents is capable of being avoided
or otherwise set aside on the liquidation or administration of that Transaction Obligor or otherwise,
then that amount shall not be considered to have been unconditionally and irrevocably paid or discharged for the purposes of the Finance
Documents.
| 38 | Confidential
Information |
The
Lender agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause
38.2 (Disclosure of Confidential Information) and to ensure that all Confidential Information is protected with security measures
and a degree of care that would apply to its own confidential information.
| 38.2 | Disclosure
of Confidential Information |
The
Lender may disclose:
| (a) | to
any of its Affiliates and Related Funds and any of its or their officers, directors, employees,
professional advisers, auditors, insurers, insurance advisors, insurance brokers, partners
and Representatives such Confidential Information as the Lender shall consider appropriate
if any person to whom the Confidential Information is to be given pursuant to this paragraph
(a) is informed in writing of its confidential nature and that some or all of such Confidential
Information may be price-sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of the information or is otherwise bound by requirements of confidentiality in relation to
the Confidential Information; |
| (i) | to
(or through) whom it assigns (or may potentially assign) all or any of its rights and/or
obligations under one or more Finance Documents and to any of that person's Affiliates, Related
Funds, Representatives and professional advisers; |
| (ii) | with
(or through) whom it enters into (or may potentially enter into), whether directly or indirectly,
any sub-participation in relation to, or any other transaction under which payments are to
be made or may be made by reference to, one or more Finance Documents and/or one or more
Transaction Obligors and to any of that person's Affiliates, Related Funds, Representatives
and professional advisers; |
| (iii) | appointed
by the Lender or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above
applies to receive communications, notices, information or documents delivered pursuant to
the Finance Documents on its behalf; |
| (iv) | who
invests in or otherwise finances (or may potentially invest in or otherwise finance), directly
or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b)
above; |
| (v) | to
whom information is required or requested to be disclosed by any court of competent jurisdiction
or any governmental, banking, taxation or other regulatory authority or similar body, the
rules of any relevant stock exchange or pursuant to any applicable law or regulation; |
| (vi) | to
whom information is required to be disclosed in connection with, and for the purposes of,
any litigation, arbitrations, administrative or other investigations, proceedings or disputes; |
| (vii) | to
whom or for whose benefit the Lender charges, assigns or otherwise creates Security (or may
do so) pursuant to Clause 25.3 (Security over ▇▇▇▇▇▇'s rights); |
| (viii) | who
is a Party, a member of the Group or any related entity of a Transaction Obligor; |
| (ix) | as
a result of the registration of any Finance Document as contemplated by any Finance Document
or any legal opinion obtained in connection with any Finance Document; or |
| (x) | with
the consent of the Borrower; |
in
each case, such Confidential Information as the Lender shall consider appropriate if:
| (A) | in
relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom
the Confidential Information is to be given has entered into a Confidentiality Undertaking
except that there shall be no requirement for a Confidentiality Undertaking if the recipient
is a professional adviser and is subject to professional obligations to maintain the confidentiality
of the Confidential Information; |
| (B) | in
relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential
Information is to be given has entered into a Confidentiality Undertaking or is otherwise
bound by requirements of confidentiality in relation to the Confidential Information they
receive and is informed that some or all of such Confidential Information may be price-sensitive
information; |
| (C) | in
relation to sub-paragraphs (v), (vi) and (vii) of paragraph (b) above, the person to whom
the Confidential Information is to be given is informed of its confidential nature and that
some or all of such Confidential Information may be price-sensitive information except that
there shall be no requirement to so inform if, in the opinion of the Lender, it is not practicable
so to do in the circumstances; |
| (c) | to
any person appointed by the Lender or by a person to whom sub-paragraph (i) or (ii) of paragraph
(b) above applies to provide administration or settlement services in respect of one or more
of the Finance Documents including without limitation, in relation to the trading of participations
in respect of the Finance Documents, such Confidential Information as may be required to
be disclosed to enable such service provider to provide any of the services referred to in
this paragraph (c) if the service provider to whom the Confidential Information is to be
given has entered in to a confidentiality agreement substantially in the form of the LMA
Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers
or such other form of confidentiality undertaking agreed between the Borrower and the Lender;
and |
| (d) | to
any rating agency (including its professional advisers) such Confidential Information as
may be required to be disclosed to enable such rating agency to carry out its normal rating
activities in relation to the Finance Documents and/or the Transaction Obligors. |
Nothing
in any Finance Document shall prevent disclosure of any Confidential Information or other matter to the extent that preventing that disclosure
would otherwise cause any transaction contemplated by the Finance Documents or any transaction carried out in connection with any transaction
contemplated by the Finance Documents to become an arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU.
This
Clause 38 (Confidential Information) constitutes the entire agreement between the Parties in relation to the obligations of the
Lender under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied,
regarding Confidential Information.
The
Lender acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such
information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market
abuse and the Lender undertakes not to use any Confidential Information for any unlawful purpose.
| 38.6 | Notification
of disclosure |
The
Lender agrees (to the extent permitted by law and regulation) to inform the Borrower:
| (a) | of
the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph
(v) of paragraph (b) of Clause 38.2 (Disclosure of Confidential Information) except
where such disclosure is made to any of the persons referred to in that paragraph during
the ordinary course of its supervisory or regulatory function; and |
| (b) | upon
becoming aware that Confidential Information has been disclosed in breach of this Clause 38
(Confidential Information). |
| 38.7 | Continuing
obligations |
The
obligations in this Clause 38 (Confidential Information) are continuing and, in particular, shall survive and remain binding on
the Lender for a period of 12 months from the earlier of:
| (a) | the
date on which all amounts payable by the Obligors under or in connection with this Agreement
have been paid in full and all Commitments have been cancelled or otherwise cease to be available;
and |
| (b) | the
date on which the Lender otherwise ceases to be the Lender. |
| 39 | Confidentiality
of Funding Rates |
| 39.1 | Confidentiality
and disclosure |
| (a) | Each
Obligor agrees to keep each Funding Rate confidential and not to disclose it to anyone, save
to the extent permitted by paragraphs (b) and (c) below. |
| (b) | The
Lender may disclose any Funding Rate to any person appointed by it to provide administration
services in respect of one or more of the Finance Documents to the extent necessary
to enable such service provider to provide those services if the service provider to whom that information is to be given has entered
into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement
Service Providers or such other form of confidentiality undertaking agreed by the Lender. |
| (c) | The
Lender and each Obligor may disclose any Funding Rate, to: |
| (i) | any
of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and Representatives, if any person to whom that Funding Rate is to be
given pursuant to this sub-paragraph (i) is informed in writing of its confidential nature
and that it may be price sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or is otherwise bound by requirements of confidentiality in relation
to it; |
| (ii) | any
person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar
body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation
if the person to whom that Funding Rate is to be given is informed in writing of its confidential
nature and that it may be price sensitive information except that there shall be no requirement
to so inform if, in the opinion of the Lender or the relevant Obligor, as the case may be,
it is not practicable to do so in the circumstances; |
| (iii) | any
person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes
if the person to whom that Funding Rate is to be given is informed in writing of its confidential
nature and that it may be price sensitive information except that there shall be no requirement
to so inform if, in the opinion of the Lender or the relevant Obligor, as the case may be,
it is not practicable to do so in the circumstances; and |
| (iv) | any
person with the consent of the Lender. |
| (a) | Each
Obligor and the Lender acknowledges that each Funding Rate is or may be price sensitive information
and that its use may be regulated or prohibited by applicable legislation including securities
law relating to insider dealing and market abuse and each Obligor undertakes not to use any
Funding Rate for any unlawful purpose. |
| (b) | Each
Obligor agrees (to the extent permitted by law and regulation) to inform the ▇▇▇▇▇▇: |
| (i) | of
the circumstances of any disclosure made pursuant to sub-paragraph (ii) of paragraph (c)
of Clause 39.1 (Confidentiality and disclosure) except where such disclosure is made
to any of the persons referred to in that paragraph during the ordinary course of its supervisory
or regulatory function; and |
| (ii) | upon
becoming aware that any information has been disclosed in breach of this Clause 39 (Confidentiality
of Funding Rates). |
No
Event of Default will occur under Clause 24.4 (Other obligations) by reason only of an Obligor's failure to comply with this Clause
39 (Confidentiality of Funding Rates).
| 40.1 | Changes
to reference rates |
| (a) | If
a Published Rate Replacement Event has occurred in relation to any Published Rate, any amendment
or waiver which relates to: |
| (i) | providing
for the use of a Replacement Reference Rate in place of that Published Rate; and |
| (A) | aligning
any provision of any Finance Document to the use of that Replacement Reference Rate; |
| (B) | enabling
that Replacement Reference Rate to be used for the calculation of interest under this Agreement
(including, without limitation, any consequential changes required to enable that Replacement
Reference Rate to be used for the purposes of this Agreement); |
| (C) | implementing
market conventions applicable to that Replacement Reference Rate; |
| (D) | providing
for appropriate fallback (and market disruption) provisions for that Replacement Reference
Rate; or |
| (E) | adjusting
the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of
economic value from one Party to another as a result of the application of that Replacement
Reference Rate (and if any adjustment or method for calculating any adjustment has been formally
designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall
be determined on the basis of that designation, nomination or recommendation), |
may
be made with the consent of the Lender and the Borrower.
| (b) | In
this Clause 40.1 (Changes to reference rates): |
"Published
Rate" means:
| (b) | Term
SOFR for any Quoted Tenor. |
"Published
Rate Contingency Period" means, in relation to:
| (c) | Term
SOFR (all Quoted Tenors), 10 US Government Securities Business
Days; and |
| (d) | SOFR,
10 US Government Securities Business Days. |
"Published
Rate Replacement Event" means, in relation to a Published Rate:
| (a) | the
methodology, formula or other means of determining that Published ▇▇▇▇ has, in the opinion
of the Lender and the Borrower, materially changed; |
| (A) | the
administrator of that Published Rate or its supervisor publicly announces that such administrator
is insolvent; or |
| (B) | information
is published in any order, decree, notice, petition or filing, however described, of or filed
with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory
or judicial body which reasonably confirms that the administrator of that Published Rate
is insolvent,provided
that, in each case, at that time, there is no successor administrator to continue to provide that Published Rate; |
| (ii) | the
administrator of that Published Rate publicly announces that it has ceased or will cease
to provide that Published Rate permanently or indefinitely and, at that time, there is no
successor administrator to continue to provide that Published Rate; |
| (iii) | the
supervisor of the administrator of that Published Rate publicly announces that such Published
Rate has been or will be permanently or indefinitely discontinued; or |
| (iv) | the
administrator of that Published Rate or its supervisor announces that that Published Rate
may no longer be used; or |
| (c) | the
administrator of that Published Rate (or the administrator of an interest rate which is a
constituent element of that Published Rate) determines that that Published Rate should be
calculated in accordance with its reduced submissions or other contingency or fallback policies
or arrangements and either: |
| (i) | the
circumstance(s) or event(s) leading to such determination are not (in the opinion of the
Lender and the Borrower) temporary; or |
| (ii) | that
Published Rate is calculated in accordance with any such policy or arrangement for a period
no less than the applicable Published Rate Contingency Period; or |
| (d) | in
the opinion of the Lender and the Borrower, that Published Rate is otherwise no longer appropriate
for the purposes of calculating interest under this Agreement. |
"Quoted
Tenor" means, in relation to Term SOFR, any period for which that rate is customarily displayed on the relevant page or screen
of an information service.
"Relevant
Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working
group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
"Replacement
Reference Rate" means a reference rate which is:
| (a) | formally
designated, nominated or recommended as the replacement for a Published Rate by: |
| (i) | the
administrator of that Published Rate (provided that the market or economic reality that such
reference rate measures is the same as that measured by that Published Rate); or |
| (ii) | any
Relevant Nominating Body, |
and
if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement
Reference Rate" will be the replacement under paragraph (ii) above;
| (b) | in
the opinion of the Lender and the Borrower, generally accepted in the international or any
relevant domestic syndicated loan markets as the appropriate successor or alternative to
a Published Rate; or |
| (c) | in
the opinion of the Lender and the Borrower, an appropriate successor or alternative to a
Published Rate. |
Without
prejudice to the generality of Clauses 1.2 (Construction) and 16.4 (Waiver of defences), each Obligor expressly confirms
that it intends that any guarantee contained in this Agreement or any other Finance Document and any Security created by any Finance
Document shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance
Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any
of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying
out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers;
any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and
any fees, costs and/or expenses associated with any of the foregoing.
Each
Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
Section
11
Governing Law and Enforcement
This
Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
| (a) | Unless
specifically provided in another Finance Document in relation to that Finance Document, the
courts of England have exclusive jurisdiction to settle any dispute arising out of or in
connection with any Finance Document (including a dispute regarding the existence, validity
or termination of any Finance Document or any non-contractual obligation arising out of or
in connection with any Finance Document) (a "Dispute"). |
| (b) | The
Obligors accept that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no Obligor will argue to the contrary. |
| (c) | To
the extent allowed by law, this Clause 43.1 (Jurisdiction) is for the benefit of the
Lender only. As a result, the Lender shall not be prevented from taking proceedings relating
to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender
may take concurrent proceedings in any number of jurisdictions. |
| (a) | Without
prejudice to any other mode of service allowed under any relevant law, each Obligor (other
than an Obligor incorporated in England and Wales): |
| (i) | irrevocably
appoints ▇▇▇▇▇▇▇ & Co. ▇▇▇▇▇▇▇▇▇ Notaries of ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as its agent
for service of process in relation to any proceedings before the English courts in connection
with any Finance Document; and |
| (ii) | agrees
that failure by a process agent to notify the relevant Obligor of the process will not invalidate
the proceedings concerned. |
| (b) | If
any person appointed as an agent for service of process is unable for any reason to act as
agent for service of process, the Borrower (on behalf of all the Obligors) must immediately
(and in any event within five days of such event taking place) appoint another agent on terms
acceptable to the Lender. Failing this, the Lender may appoint another agent for this purpose. |
This
Agreement has been entered into on the date stated at the beginning of this Agreement.
Schedule
1
The Parties
Part
A
The Obligors
| Name
of Borrower |
Place
of Incorporation |
Registration
number (or equivalent, if any) |
Address
for Communication |
| |
|
|
|
| Calypso
Shipholding S.A. |
Marshall
Islands |
107763 |
c/o
Globus Shipmanagement Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Tel:
Fax:
e-mail:
|
| |
|
|
|
| Name
of Guarantor |
Place
of Incorporation |
Registration
number (or equivalent, if any) |
Address
for Communication |
| |
|
|
|
| Globus
Maritime Limited |
▇▇▇▇▇▇▇▇
Islands |
44376 |
c/o
Globus Shipmanagement Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Tel:
Fax:
e-mail:
|
Part
B
The Original Lender
| Name
of Original Lender |
|
Address
for Communication |
| ▇▇▇▇▇▇▇▇▇▇
Maritime S.A. |
|
c/o
BOT Lease Co., Ltd., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇-▇▇-▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇-▇▇▇▇, ▇▇▇▇▇
Email
address:
Attention: |
Schedule
2
Conditions Precedent
Schedule
3
Utilisation Request
Schedule
4
TIMETABLES
Execution
Pages
BORROWER
| SIGNED
by |
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
) |
| Attorney-in-fact
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
| for and on behalf of |
|
) |
| CALYPSO
SHIPHOLDING S.A. |
|
) |
| in the presence of: |
|
) |
| |
|
|
| Witness' signature: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ) |
| Witness' name: | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ) |
| Witness' address: | ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ | ) |
| | | |
| | | |
| | | |
GUARANTOR
| SIGNED
by |
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
) |
| Attorney-in-fact
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
| for and on behalf of |
|
) |
| GLOBUS MARITIME LIMITED |
|
) |
| in the presence of: |
|
) |
| |
|
|
| Witness' signature: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ) |
| Witness' name: | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ) |
| Witness' address: | ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ | ) |
| | | |
| | | |
| | | |
ORIGINAL
LENDER
| SIGNED
by |
▇▇▇▇▇▇▇ ▇▇▇▇ |
) |
| duly
authorised
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ |
|
| for and on behalf of |
|
) |
| ▇▇▇▇▇▇▇▇▇▇
MARITIME S.A. |
|
) |
| in the presence of: |
|
) |
| |
|
|
| Witness' signature: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ) |
| Witness' name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ) |
| Witness' address: | ▇-▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇▇▇ | ) |
| | | |
| | | |
| | | |