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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 4/12/21 Pyxis Tankers Inc. 20-F 12/31/20 76:8.4M M2 Compliance LLC/FA |
Document/Exhibit Description Pages Size 1: 20-F Annual or Annual-Transition Report by a Foreign HTML 1.60M Non-Canadian Issuer 2: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, HTML 96K Liquidation or Succession 3: EX-4.15 Instrument Defining the Rights of Security Holders HTML 633K 4: EX-8.1 Opinion of Counsel re: Tax Matters HTML 23K 7: EX-13.1 Annual or Quarterly Report to Security Holders HTML 22K 8: EX-13.2 Annual or Quarterly Report to Security Holders HTML 22K 5: EX-12.1 Statement re: the Computation of Ratios HTML 24K 6: EX-12.2 Statement re: the Computation of Ratios HTML 24K 9: EX-15.1 Letter re: Unaudited Interim Financial Info HTML 21K 10: EX-15.2 Letter re: Unaudited Interim Financial Info HTML 25K 17: R1 Document and Entity Information HTML 57K 18: R2 Consolidated Balance Sheets HTML 129K 19: R3 Consolidated Balance Sheets (Parenthetical) HTML 40K 20: R4 Consolidated Statements of Comprehensive Loss HTML 88K 21: R5 Consolidated Statements of Stockholders' Equity HTML 65K 22: R6 Consolidated Statements of Cash Flows HTML 130K 23: R7 Basis of Presentation and General Information HTML 43K 24: R8 Significant Accounting Policies HTML 92K 25: R9 Transactions with Related Parties HTML 41K 26: R10 Inventories HTML 27K 27: R11 Vessels, Net HTML 36K 28: R12 Deferred Charges, Net HTML 28K 29: R13 Long-term Debt HTML 56K 30: R14 Equity Capital Structure and Equity Incentive Plan HTML 42K 31: R15 Loss Per Common Share HTML 28K 32: R16 Risk Management and Fair Value Measurements HTML 42K 33: R17 Commitments and Contingencies HTML 29K 34: R18 Interest and Finance Costs, Net HTML 30K 35: R19 Subsequent Events HTML 30K 36: R20 Significant Accounting Policies (Policies) HTML 158K 37: R21 Basis of Presentation and General Information HTML 30K (Tables) 38: R22 Significant Accounting Policies (Tables) HTML 39K 39: R23 Transactions with Related Parties (Tables) HTML 31K 40: R24 Inventories (Tables) HTML 28K 41: R25 Vessels, Net (Tables) HTML 32K 42: R26 Deferred Charges, Net (Tables) HTML 28K 43: R27 Long-term Debt (Tables) HTML 40K 44: R28 Loss Per Common Share (Tables) HTML 28K 45: R29 Risk Management and Fair Value Measurements HTML 43K (Tables) 46: R30 Commitments and Contingencies (Tables) HTML 25K 47: R31 Interest and Finance Costs, Net (Tables) HTML 29K 48: R32 Basis of Presentation and General Information HTML 31K (Details Narrative) 49: R33 Basis of Presentation and General Information - 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LOAN AGREEMENT
for a secured floating interest rate
loan facility of US$17,000,000
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TABLE OF CONTENTS |
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CLAUSE | HEADINGS | PAGE |
1.
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PURPOSE, DEFINITIONS AND INTERPRETATION
|
1
|
2.
|
THE LOAN
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23
|
3.
|
INTEREST
|
26
|
4.
|
REPAYMENT - PREPAYMENT
|
30
|
5.
|
PAYMENTS, TAXES, LOAN ACCOUNT AND COMPUTATION
|
32
|
6.
|
REPRESENTATIONS AND WARRANTIES
|
35
|
7.
|
CONDITIONS PRECEDENT
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41
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8.
|
COVENANTS
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46
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9.
|
EVENTS OF DEFAULT
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59
|
10.
|
INDEMNITIES - EXPENSES – FEES
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64
|
11.
|
SECURITY, APPLICATION, AND SET-OFF
|
70
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12.
|
UNLAWFULNESS, INCREASED COSTS AND BAIL-IN
|
72
|
13.
|
OPERATING ACCOUNT
|
75
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14.
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ASSIGNMENT, TRANSFER, PARTICIPATION, LENDING OFFICE
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77
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15.
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MISCELLANEOUS
|
80
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16.
|
NOTICES AND COMMUNICATIONS
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83
|
17.
|
LAW AND JURISDICTION
|
84
|
1. |
ALPHA BANK S.A., a banking société anonyme incorporated in and pursuant to the laws of the Hellenic Republic with its head office at 40 Stadiou Street, Athens GR 102 52, Greece, acting, except as
otherwise herein provided, through its office at 93 Akti Miaouli, Piraeus, Greece (hereinafter called the "Lender", which expression shall include its successors and assigns); and
|
2. |
1.1 |
Amount and Purpose
|
1.2 |
Definitions
|
(a) |
the 30th day of April, 2021 or until such later date as the Lender may agree in writing; or
|
(b) |
on such earlier date (if any): (i) on which the whole Commitment has been advanced by the Lender
to the Borrower, or (ii) on which the Commitment is reduced to zero pursuant to Clauses 3.6 (Market disruption – Non Availability), 9.2 (Consequences of Default – Acceleration), 12.1 (Unlawfulness) or any other Clause of this
Agreement;
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
(b) |
in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation;
|
(a) |
in London, New York, Athens and Piraeus regarding the fixing of any interest rate
which is required to be determined under this Agreement or any Finance Document;
|
(b) |
in New York, Athens and Piraeus in respect of any payment which is required to be made under a Finance Document; and
|
(c) |
in Athens, Piraeus and in each country or place in or at which an act is required to be done under this Agreement in accordance with the usual practice of the Lender regarding any other action to be taken under this Agreement or any other Finance Document;
|
(a) |
the agreements on capital requirements, 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) |
the interest (excluding Margin) which the Lender should have received for the period from the date of receipt of all or any part of its participation in the Loan or
the relevant part of it or any sum due and payable but unpaid by a Security Party under the Security Documents to the last day of the current Interest Period in respect of the Loan or the relevant part of it or any sum due and payable but
unpaid by a Security Party under the Security Documents, had the principal amount received been paid on the last day of that Interest Period;
|
(b) |
the amount which the Lender would be able to obtain by placing an amount equal to the principal amount or the relevant part of it or any sum due and payable but unpaid
by a Security Party under the Security Documents received by it on deposit with a leading bank in the London Interbank Market for a period starting on the Banking Day following receipt or recovery and ending on the last day of the current
Interest Period;
|
(a) |
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, supplemented or restated; and
|
(b) |
any other law or regulation which implements Basel III;
|
(a) |
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or which relates to any Environmental Law; or
|
(b) |
any claim by any other person which relates to an Environmental Incident,
|
(a) |
all losses, liabilities, costs, charges, expenses, damages and outgoings of whatever
|
(b) |
the expenses referred to in Clause 10.2 (Expenses); and
|
(c) |
interest on all such losses, liabilities, costs, charges, expenses, damages and outgoings from, in the case of Expenses referred to in sub-paragraph (b) above, the date
on which such Expenses were demanded by the Lender from the Borrower and in all other cases, the date on which the same were suffered, incurred or paid by the Lender until the date of receipt or recovery thereof (whether before or after
judgement) at the Default Rate (as conclusively certified by the Lender but always absent manifest error);
|
(a) |
sections 1471 to 1474 of the US Internal Revenue Code of 1986 (the "Code") or any associated regulations or other associated official guidance;
|
(b) |
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of
paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;
|
(a) |
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;
|
(b) |
under any loan stock, bond, note or other security issued by the debtor;
|
(c) |
under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
|
(d) |
under a financial lease, a deferred purchase consideration arrangement or any other
|
(e) |
under any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is
entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or
|
(f) |
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within (a) to (e) if the
references to the debtor referred to the other person;
|
(a) |
"The International Management Code for the Safe Operation of Ships and
for Pollution Prevention", currently known or referred to as the "ISM Code", adopted by the Assembly of the International
Maritime Organisation by Resolution A. 741(18) on 4th November, 1993 and incorporated on 19th May, 1994 into chapter IX of the International Convention for the Safety of Life at Sea 1974 (SOLAS 1974); and
|
(b) |
all further resolutions, circulars, codes, guidelines, regulations and recommendations which are now or in the future issued by or on behalf of the International
Maritime Organisation or any other entity with responsibility for implementing the ISM Code, including without limitation, the "Guidelines on
implementation or administering of the International Safety Management (ISM) Code by Administrations" produced by the International Maritime Organisation pursuant to Resolution A. 788(19) adopted on 25th November, 1995,
|
(a) |
the DOC and SMC issued by the Classification Society in all respects acceptable to the Lender in its absolute discretion pursuant to the ISM Code in relation to the
Vessel within the period specified by the ISM Code;
|
(b) |
all other documents and data which are relevant to the ISM SMS and its implementation and verification which the Lender may require by request; and
|
(c) |
any other documents which are prepared or which are otherwise relevant to establish and maintain the Vessel's or the Borrower's compliance with the ISM Code which the
Lender may require by request;
|
(a) |
the applicable Screen Rate at or about 11.45 a.m. (London time) on the Quotation Day for Dollars and for a period equal in length to the Interest Period
then applicable to the Loan or that part of the Loan; or
|
(b) |
as otherwise determined pursuant to Clause3.6(d) (Negotiation of alternative rate of interest),
|
(a) |
the business, property, assets, liabilities, operations or financial condition (of the Borrower and/or any other Security Party taken as a whole;
|
(b) |
the ability of the Borrower and/or any other Security Party to (i) comply with or perform any of its obligations or (ii) discharge any of its liabilities, under any
Finance Document as they fall due; or
|
(c) |
the validity, legality or enforceability of any Finance Document or the rights and remedies of the Lender under any Finance Document;
|
(a) |
any Financial Indebtedness incurred under the Finance Documents;
|
(b) |
any shareholders' loans, including any loans made by the Corporate Guarantor, which are unsecured and fully subordinated to all Financial Indebtedness incurred under
the Finance Documents in writing pursuant to a subordination agreement acceptable to the Lender ;
|
(c) |
any Financial Indebtedness owing to an Approved Manager, subject to the Borrower ensuring on or prior to incurring such Financial Indebtedness, that the rights of the
relevant creditor thereunder are fully subordinated to the rights of the Lender hereunder in writing pursuant to a subordination agreement acceptable to the Lender; and
|
(d) |
any Financial Indebtedness incurred in the ordinary course of owning, operating, maintaining, repairing and trading the Vessel or for the purposes of complying with
requirements of the Classification Society and/or with any regulatory requirements.
|
(a) |
Security Interests created by the Finance Documents;
|
(b) |
until the Drawdown Date, the Existing Security;
|
(c) |
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
(d) |
liens for salvage;
|
(e) |
liens arising by operation of law for not more than one month's prepaid hire under any charter in relation to the Vessel not prohibited by this Agreement;
|
(f) |
liens for master's disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the
operation, repair or maintenance of the Vessel, provided such liens do not secure amounts more than 90 days overdue (unless the overdue amount is being contested by the Borrower in good faith by appropriate steps) and, in the case of liens
for repair or maintenance, in the Vessel is put in the possession of any person for the
|
(g) |
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses while the Borrower is actively
prosecuting or defending such proceedings or arbitration in good faith; and
|
(h) |
Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate
steps and in respect of which appropriate reserves have been made;
|
(a) |
formally designated, nominated or recommended as the replacement for a Screen Rate
by:
|
(i) |
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate);
or
|
(ii) |
any Relevant Nominating Body,
|
(b) |
in the opinion of the Lender and the Borrower, generally accepted in the international loan markets as the appropriate successor to a Screen Rate; or
|
(c) |
in the opinion of the Lender and the Borrower, an appropriate successor to a Screen Rate;
|
(a) |
the government of the United States of America;
|
(b) |
the United Nations;
|
(c) |
the European Union (or the governments of any of its member states);
|
(d) |
the United Kingdom; or
|
(e) |
the respective governmental institutions and agencies of any of the foregoing including the Office of Foreign Assets Control of the U.S. Department of the
|
(a) |
that is, or is directly or indirectly, owned or controlled (as such terms are defined by the relevant Sanctions Authority) by, or acting on behalf of, one or more
persons or entities on any list (each as amended, supplemented or substituted from time to time) of restricted entities, persons or organisations (or
equivalent) published by a Sanctions Authority;
|
(b) |
that is located or resident in or incorporated under the laws of, or owned or controlled by, a person located or resident in or incorporated under the laws of a Sanctions Restricted Jurisdiction; or
|
(c) |
that is otherwise the subject of Sanctions;
|
(a) |
the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Lender and the Borrower, materially changed;
|
(b) |
(i)
|
(A) |
the administrator of that Screen 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, or filed with a court, tribunal, exchange, regulatory authority or similar
administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent,
|
(ii) |
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
(iii) |
the supervisor of the administrator of that Screen Rate publicly announces that such
Screen Rate has been or will be permanently or indefinitely discontinued; or
|
(iv) |
the administrator of that Screen Rate or its supervisor announces that that Screen Rate
may no longer be used; or
|
(v) |
in the opinion of the Lender and the Borrower, that Screen Rate is otherwise no
longer appropriate for the purposes of calculating interest under this Agreement;
|
(a) |
the Account Pledge Agreement;
|
(b) |
the Approved Manager's Undertakings;
|
(c) |
the General Assignment;
|
(d) |
the Mortgage;
|
(e) |
the Charterparty Assignment in respect of any Assignable Charterparty;
|
(f) |
the Corporate Guarantee; and
|
(g) |
any other document (whether creating a Security Interest or not) which is executed at any time by the Borrower or the other Security Parties or any other person as
security for, or to establish any form of subordination or priorities arrangement in relation to, the whole or any part of the Outstanding Indebtedness and/or any and all other obligations of the Borrower pursuant to this Agreement and other
moneys from time to time owing or payable under or in connection with this Agreement to the Lender or any of the documents referred to in this definition as each such document may from time to time be amended and/or supplemented, and
"Security Document" means any of them as the context may require;
|
(a) |
all amounts which have become due for payment by the Borrower or any other Security Party under the Finance Documents have been paid;
|
(b) |
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document; and
|
(c) |
neither the Borrower nor any other Security Party has any future or contingent liability under Clauses 11 (Indemnities- Expenses-Fees) or 5 (Payments, Taxes, Loan Account and Computation) or any other provision of this Agreement or another Finance Document;
|
(a) |
actual, constructive, compromised or arranged total loss of the Vessel; or
|
(b) |
the Compulsory Acquisition of the Vessel; or
|
(c) |
any condemnation of the Vessel by any tribunal or by any person or persons claiming to be a tribunal,
or capture, seizure, confiscation, arrest or detention of the Vessel (other than where the same amounts to the Compulsory Acquisition of the Vessel) by any Government Entity, or by persons acting on behalf of any Government Entity or
otherwise, unless it is within one hundred and twenty (120) days from the date of such occurrence released and restored to the full control of the Borrower; and
|
(d) |
any arrest, capture, seizure, confiscation or detention of the Vessel (including any hijacking or theft or piracy or related incident) unless it is within one
hundred and eighty (180) days from the date of such occurrence redelivered to the full control of the Borrower;
|
(b) |
in the case of an actual loss of the Vessel, the date on which it occurred or, if that is unknown, the date when the Vessel was last heard of;
|
(c) |
in the case of a constructive, compromised, agreed or arranged total loss of the Vessel, the earliest of:
|
(i) |
the date on which a notice of abandonment is given to the insurers; and
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Owner of the
Vessel with the Vessel's insurers in which the insurers agree to treat the Vessel as a total loss;
|
(d) |
in the case of the Compulsory Acquisition of the Vessel, on the date upon which the
relevant requisition of title or other compulsory acquisition occurs;
|
(e) |
in the case of, condemnation, capture, seizure, confiscation, arrest, or detention of such Vessel (other than where the same amounts to Compulsory Acquisition of such
Vessel) by any Government Entity, or by persons acting on behalf of any Government Entity, which deprives its Owner of the use of such Vessel for more than one hundred twenty (120) days, upon the expiry of the period of one hundred twenty
(120) days after the date upon which the relevant, condemnation, capture, seizure or confiscation, arrest or detention occurred; and
|
(f) |
in the case of hijacking, capture, seizure or confiscation of a Vessel arising as a result of a piracy or related incident upon the expiry of the period of one hundred
eighty (180) days after the occurrence thereof;
|
(a) |
the Borrower, if it is resident for tax purposes in the United States of America;
or
|
(b) |
a Security Party some or all of whose payments under the Finance Documents are from sources within the United States for US Federal income tax purposes;
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or
Affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if
a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii) |
any similar or analogous powers under that Bail-In Legislation; and
|
(c) |
in relation to any UK Bail-In Legislation:
|
(i) |
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; and
|
(ii) |
any similar or analogous powers under that UK Bail-In Legislation.
|
1.3 |
Interpretation
|
(a) |
Clause headings and the table of contents are inserted for convenience of reference only and in interpreting a Finance Document or any provision of a Finance Document,
all Clause, sub-Clause and other headings in that and any other Finance Document shall be entirely disregarded;
|
(b) |
subject to any specific provision of this Agreement or of any assignment and/or participation or syndication agreement of any nature whatsoever, reference to each of
the parties hereto and to the other Finance Documents shall be deemed to be reference to and/or to include, as appropriate, their respective successors and permitted assigns;
|
(c) |
where the context so admits, words in the singular include the plural and vice versa;
|
(d) |
the words "including" and "in particular" shall not be construed as limiting the generality of any foregoing words;
|
(e) |
references to (or to any specified provisions of) a Finance Document or any other agreement or instrument is a reference to that Finance Document or other
|
(f) |
references to Clauses and Schedules are to be construed as references to the Clauses of, and the Schedules to, the relevant Finance Document and references to a Finance
Document include all the terms of that Finance Document and any Schedules, Annexes or Appendices thereto, which form an integral part of same;
|
(g) |
references to the opinion of the Lender or a determination or acceptance by the Lender or to documents, acts, or persons acceptable or satisfactory to the Lender or the
like shall be construed as reference to opinion, determination, acceptance or satisfaction of the Lender at the sole discretion of the Lender and such opinion, determination, acceptance or satisfaction of the Lender shall be conclusive and
binding on the Borrower;
|
(h) |
references to a "regulation" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not having the force of law) of any of any governmental or intergovernmental body, agency, authority, central bank or government department or any self-regulatory or other
national or supra-national authority or organisation and includes (without limitation) any Basel II Regulation or Basel III Regulation;
|
(i) |
references to any person include such person's assignees and successors in title; and
|
(j) |
references to or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise;
|
1.4 |
Construction of certain terms
|
(a) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
(i) |
cast, or control the casting of, more than 50 per cent of the maximum number of votes that might be cast at a general meeting of that entity; or
|
(ii) |
appoint or remove all, or the majority, of the directors or other equivalent
officers of that entity; or
|
(iii) |
give directions with respect to the operating and financial policies of that entity
with which the directors or other equivalent officers of that entity are obliged to comply; and/or
|
(b) |
the holding beneficially of more than 50 per cent of the issued share capital of that entity (excluding any part of that issued share capital that carries no right to
participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over share capital shall be disregarded in determining the beneficial ownership of such share capital);
|
1.5 |
Same meaning
|
1.6 |
Inconsistency
|
1.7 |
Finance Documents
|
2.1 |
Commitment to Lend
|
2.2 |
Drawdown Notice and Commitment to Borrow
|
2.3 |
Drawdown Notice irrevocable
|
2.4 |
Number of Advances Agreed
|
2.5 |
Disbursement
|
2.6 |
Application of Proceeds
|
2.7 |
Termination Date of the Commitment
|
2.8 |
Evidence
|
2.9 |
Cancellation
|
2.10 |
No security or lien from other person
|
2.11 |
Disbursement of the Commitment to the Existing Lenders
|
(a) |
Notwithstanding the foregoing provisions of this Clause 2, in the event that any part of the Commitment is required to be drawn down prior to the satisfaction of the
requirements of Clause 7 (Conditions
precedent) and remitted to Wilmington Trust (in its capacity as the Facility Agent under the Existing Loan Agreement), the
Lender may in its absolute discretion agree to remit such amount (the "paid amount") to Wilmington Trust by MT103 prior to the satisfaction of the
requirements of Clause 7 (Conditions
precedent) expressly subject to the following conditions:
|
(i) |
The Lender receives from Wilmington Trust a letter of undertaking concerning the discharge of the Existing Security, in form and substance satisfactory to the Lender (the "Letter of
Undertaking"); and
|
(ii) |
in the event that Wilmington Trust fails to comply with its obligations under the
Letter of Undertaking:
|
(iii) |
Without prejudice to the obligations of the Borrower to indemnify the Lender on demand, the Lender shall in good faith take reasonable and proper steps diligently to seek recovery of the paid amount from Wilmington Trust and/or the Existing Lenders (provided
that prior to taking such action the Borrower shall have agreed to indemnify the Lender for all costs and expenses which may be incurred in seeking recovery of such amount, including, without limitation, all legal fees and
disbursements reasonably and properly incurred) and if the Lender shall recover any part of the paid amount (and provided that it has previously
recovered full indemnification under Clause 2.11(a)(ii)) the Lender shall, so long as no Event of Default has occurred and is continuing, pay to the Borrower the amount so recovered after subtracting any tax suffered or incurred thereon or Expenses incurred by the Lender.
|
(iv) |
The Lender shall have no liability whatsoever to the Borrower or any other person for any loss caused by Wilmington Trust's failure for any reason whatsoever to remit
the said amount and any earned interest to the designated account or to comply fully in accordance with the Letter of Undertaking.
|
(v) |
Any amounts remitted by Wilmington Trust and/or the Existing Lenders to the Lender and returned pursuant to this Clause 2.11 will be applied as follows, and express
authority is hereby given by the Borrower to the Lender to make such application, in case the repayment of the Existing Indebtedness has not been effected, these amounts together, if needed, with the amount of the Pledged Deposit, shall be
applied in or towards prepayment of the Outstanding Indebtedness in full, and, following such prepayment, the remaining amount (if any) shall be freely available to the Borrower.
|
(b) |
The provisions of Clause 4.5 (Amounts payable on prepayment) shall apply to any prepayment of the Loan made under this Clause 2.11.
|
3.1 |
Normal Interest Rate
|
3.2 |
Selection of Interest Period
|
(a) |
Notice: The Borrower may by notice received by the Lender not later than
10:00 a.m. (London time) on the second Banking Day before the beginning of each Interest Period specify (subject to Clause 3.3 (Determination of Interest Periods)) whether such Interest Period shall have a duration of one (1) or two (2) or three (3) months (or
such other period as may be requested by the Borrower and as the Lender, in its sole discretion, may agree to).
|
(b) |
Non-availability of matching deposits for Interest Period selected: If,
after the Borrower has selected an Interest Period longer than 3 months, the Lender notifies the Borrower by 10.00 a.m. (London time) on the third Banking Day before the commencement of the Interest Period that it is not satisfied that
deposits in Dollars for a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences, the Interest Period shall be of such duration as the Lender may advise the Borrower in
writing.
|
3.3 |
Determination of Interest Periods
|
(a) |
Initial Interest Period: the initial Interest Period applicable to the Loan
will commence on the Drawdown Date and each subsequent Interest Period will commence forthwith upon the expiry of the preceding Interest Period;
|
(b) |
Interest Period overrunning Repayment Date(s): if any Interest Period would
otherwise overrun one or more Repayment Dates, then, in the case of the last Repayment Date, such Interest Period shall end on such Repayment Date, and in the case of any other Repayment Date or Dates the Loan shall be divided into parts so
that there is one part equal to the amount of the Repayment Instalment due on each Repayment Date falling during that Interest Period and having an Interest Period ending on the relevant Repayment Date and another part equal to the amount of
the balance of the Loan having an Interest Period determined in accordance with Clause 3.2 (Selection of Interest Period) and the other provisions of this
Clause 3.3 and the expression "Interest Period in respect of the Loan" when used in this Agreement refers to the Interest Period in respect of the
balance of the Loan; and
|
(c) |
Failure to notify: if the Borrower fails to specify the duration of an
Interest Period in accordance with the provisions of Clause 3.2 (Selection of Interest Period) and this Clause 3.3, such Interest Period shall have a duration
of three (3) months unless another period shall be agreed between the Lender and the Borrower provided, always, that such period (whether of three
months or different duration) shall comply with this Clause 3.3.
|
3.4 |
Default Interest
|
(a) |
Default interest: If the Borrower fails to pay any sum (including, without
limitation, any sum payable pursuant to this Clause 3.4) on its due date for payment under any of the Finance Documents, the Borrower shall pay interest on such sum from the due date up to the date of actual payment (as well after as before
judgement) at the rate determined by the Lender pursuant to this Clause 3.4. The period beginning on such due date and ending on such date of payment shall be divided into successive periods of not more than three (3) months as selected by
the Lender each of which (other than the first, which shall commence on such due date) shall commence on the last day of the preceding such period. The rate of interest applicable to each such period shall be the aggregate (as determined by
the Lender) of (i) two per cent (2%), per annum, (ii) the Margin and (iii) LIBOR. Such interest shall be due and payable on the last day of each such period as determined by the Lender and each such day shall, for the purposes of this
Agreement, be treated as an Interest
|
(b) |
Compounding of default interest: Any such interest which is not paid at the
end of the period by reference to which it was determined shall be compounded semi-annually.
|
3.5 |
Notification of Interest and interest rate
|
3.6 |
Market disruption – Non Availability
|
(a) |
Market Disruption Event: If and whenever, at any time prior to the
commencement of any Interest Period, the Lender (in its discretion) shall have determined (which determination shall be conclusive in the absence of manifest error) that a Market Disruption Event has occurred in relation to the Loan for any
such Interest Period, then the Lender shall forthwith give notice thereof (a "Determination Notice") to the Borrower
and the rate of interest on the Loan (or the relevant part thereof) for that Interest Period shall be the percentage rate per annum which is the sum of:
|
(i) |
the Margin; and
|
(ii) |
the rate which expresses as a percentage rate per annum the cost to the Lender of
funding the Loan (or the relevant part thereof) from whatever source it may select.
|
(b) |
Suspension of drawdown: If the Determination Notice is given before the
Commitment (or a part thereof) is advanced, the Lender's obligation to make the Commitment (or a part thereof) available shall be suspended while the circumstances referred to in the Determination notice continue.
|
(c) |
Meaning of "Market Disruption Event": In this Agreement "Market Disruption Event" means:
|
(i) |
at or about noon on the Quotation Day for the relevant Interest Period no Screen
Rate is available for LIBOR for Dollars; and/or
|
(ii) |
before close of business in London on the Quotation Day for the relevant Interest Period, the Lender determines (in its sole discretion) that the cost to it of
obtaining matching deposits in the London Interbank Market to fund the Loan (or the relevant part thereof) for such Interest Period would be in excess of the Screen Rate for such Interest Period; and
|
(iii) |
before close of business in London on the Quotation Day for the relevant Interest Period, deposits in Dollars are not available to the Lender in the London Interbank
Market in the ordinary course of business in sufficient amounts to fund the Loan (or the relevant part thereof) for such Interest Period.
|
(d) |
Negotiation of alternative rate of interest: If the Determination Notice is
served after the Loan is borrowed, the Borrower and the Lender shall enter into negotiations (for a period of not more than 15 days after the date on which the Lender serves the Determination Notice (the "Negotiation Period") and shall use reasonable endeavours to agree, an alternative interest rate or (as the case may be) an alternative basis for
the Lender to fund or continue to fund the Loan during the Interest Period concerned. During the Negotiation Period the Lender shall set an Interest Period and interest rate representing the Cost of Funding of the Lender in Dollars, in each
case as determined by the Lender, of the Loan plus the Margin.
|
(e) |
Application of agreed alternative rate of interest: Any alternative interest rate or an alternative basis which is agreed during the Negotiation Period shall be binding on the Lender and all Security Parties and shall take effect in accordance with the terms agreed.
|
(f) |
Alternative basis of interest in absence of agreement: If the Lender and the Borrower will not enter into negotiations as provided in Clause 3.6(d)(i) or if
an alternative interest rate or alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the Lender shall set the following Interest Period and an
interest rate representing the cost of funding of the Lender in Dollars of the Loan (or the relevant part thereof) plus the Margin for such Interest Period;
if the relevant circumstances are continuing at the end of the Interest Period so set by the Lender, the Lender shall continue to set the following Interest Period and an interest rate representing its cost of funding in Dollars of the Loan (or the relevant part thereof) plus the Margin for such Interest Period until such time as the circumstances specified in Sub-Clause 3.6(a) (Market Disruption Event) shall no longer exist, whereupon the normal rate of interest shall apply.
|
(g) |
Notice of prepayment: If the Borrower does not agree with an interest rate set by the Lender under Clause 3.6(f) (Alternative basis of interest in absence of agreement), the Borrower may give the Lender not less than 5 Banking Days' notice of its intention to prepay the Loan at the end of the
interest period set by the Lender.
|
(h) |
Prepayment; termination of Commitment: A notice under Clause 3.6(g) (Notice of prepayment) shall be irrevocable; and on the last Banking Day of the interest period set by the Lender the Borrower shall prepay (without premium or penalty) the Loan, together with accrued interest thereon at the applicable interest rate and the
|
(i) |
Application of prepayment: The provisions of Clause 4 (Repayment-Prepayment) shall apply in relation to the prepayment made hereunder.
|
3.7 |
Replacement of Screen Rate
|
(a) |
If a Screen Rate Replacement Event has occurred in relation to the Screen Rate for dollars, any amendment or waiver which relates to:
|
(i) |
providing for the use of a Replacement Benchmark in relation to that currency in place of that Screen Rate ; and
|
(1) |
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
(2) |
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required
to enable that Replacement Benchmark to be used for the purposes of this Agreement);
|
(3) |
implementing market conventions applicable to that Replacement Benchmark;
|
(4) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
|
(5) |
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 Benchmark (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),
|
4.1 |
Repayment
|
4.2 |
Voluntary Prepayment
|
(a) |
the giving of such notice by the Borrower will irrevocably commit the Borrower to prepay such amount as stated in such notice;
|
(b) |
if the Borrower shall request consent to make such prepayment on a day other than the last day of an Interest Period the Borrower will pay, in addition to the amount to
be prepaid, any such sum as may be payable to the Lender pursuant to Clause 10.1 (Indemnity);
|
(c) |
each such prepayment shall be in an amount of $100,000 or a whole multiple thereof or the balance of the Loan and will be applied by the Lender in or towards pro-rata
prepayment of the Balloon Instalment and the remaining Repayment Instalments;
|
(d) |
every notice of prepayment shall be effective only on actual receipt (including by fax or electronic mail) by the Lender, shall be irrevocable and shall oblige the
Borrower to make such prepayment on the date specified;
|
(e) |
the Borrower has provided evidence satisfactory to the Lender that any consent required by the Borrower or any Security Party in connection with the prepayment has been
obtained and remains in force, and that any regulation relevant to this Agreement which affects the Borrower or any Security Party has been complied with;
|
(f) |
no amount prepaid may be re-borrowed; and
|
(g) |
the Borrower may not prepay the Loan or any part thereof, save as expressly provided in this Agreement or as otherwise agreed by the Lender;
|
4.3 |
Compulsory Prepayment in case of Total Loss or sale of the Vessel
|
(a) |
Total Loss: On the Vessel becoming a Total Loss:
|
(i) |
prior to the advancing of the Commitment (or any part thereof), the obligation of the Lender to advance the Commitment (or any part thereof) shall immediately cease and the Commitment shall be reduced to zero; or
|
(ii) |
in case the Commitment (or any part thereof) has been already advanced, the Borrower shall prepay the Outstanding Indebtedness in full on the earlier of (1) the date
falling one hundred and eighty (180) days after the Total Loss Date and (2) the date of receipt by the Lender of the insurance proceeds relating to such Total Loss or Requisition Compensation.
|
(b) |
Sale of the Vessel - Refinancing: In the event of a sale or other disposal of the Vessel, or in case of refinancing by another bank or if the Borrower requests the Lender's consent for the discharge of the Mortgage on the Vessel, the Borrower shall prepay the Outstanding Indebtedness in full on the date of the sale and delivery of the Vessel to her buyer or on the date of
the refinancing or the date of the discharge of the Mortgage on the Vessel, as the case may be.
|
4.4 |
Amounts payable on prepayment
|
(a) |
accrued interest on the prepaid amount to the date of such prepayment (calculated, in the
case of a prepayment pursuant to Clause 3.6 (Market disruption – Non Availability) at a rate equal to the aggregate of the Margin and the cost to the Lender of
funding the Loan);
|
(b) |
any additional amount, if applicable, payable under Clause 5.3 (Gross Up) and/or 12.2 (Increased cost) and 12.3 (Claim for increased cost);
|
(c) |
all other sums payable by the Borrower to the Lender under this Agreement or any of the
other Finance Documents including, without limitation, any amounts payable under Clause 10 (Indemnities - Expenses – Fees); and
|
(d) |
in relation to any prepayment made on a date other than an Interest Payment Date in respect of the whole of the Loan, it shall, in addition to the amount prepaid and
accrued interest, pay to the Lender any amount which the Lender may certify is necessary to compensate the Lender for any Break Costs incurred by the Lender as a result of the making of the prepayment in question.
|
5.1 |
Payments – No set-off or counterclaims
|
(a) |
The Borrower acknowledges that in performing its obligations under this Agreement, the Lender will be incurring liabilities to third parties in relation to the
|
(i) |
in Dollars, not later than 10:00 a.m. (London time) on the Banking Day (in Piraeus, Athens, London and New York City) on which the relevant payment is due under the terms of this Agreement; and
|
(ii) |
to the account of the Lender at Citibank N.A., 399, Park Avenue, New York 10022, N.Y.,
U.S.A. (SWIFT Code CITIUS33) for account of the Lender, account number 36251442 (Swift Code: CRBAGRAA), or such other bank in New York as the Lender may notify from time to time to the Borrower, reference: "EIGHTHONE CORP.-Loan Agreement dated: 29th March, 2021", provided, however, that the Lender shall have the right to change the place of account for payment, upon ten (10) Banking Days' prior written notice to the Borrower from the date on which the relevant
payment has to be made.
|
(b) |
If at any time it shall become unlawful or impracticable for the Borrower to make payment under this Agreement to the relevant account or bank referred to in Clause
5.1(a), the Borrower may request and the Lender may agree to alternative arrangements for the payment of the amounts due by the Borrower to the Lender under this Agreement or the other Finance Documents.
|
5.2 |
Payments on Banking Days
|
5.3 |
Gross Up
|
5.4 |
Mitigation
|
(a) |
have an adverse effect on its business, operations or financial condition on the Lender; or
|
(b) |
involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent, with any regulation of the Lender; or
|
(c) |
involve the Lender in any expense (unless indemnified to its reasonable satisfaction) or tax disadvantage.
|
5.5 |
Claw-back of Tax benefit
|
(a) |
the Lender shall not be obliged to allocate this transaction any part of a tax repayment or credit which is referable to a number of transactions;
|
(b) |
nothing in this Clause shall oblige the Lender to rearrange its tax affairs in any particular manner, to claim any type of relief, credit, allowance or deduction
instead of, or in priority to, another or to make any such claim within any particular time or to disclose any information regarding its tax affairs and computations;
|
(c) |
nothing in this Clause shall oblige the Lender to make a payment which exceeds any repayment or credit in respect of tax on account of which the Borrower has made an
increased payment under this Clause;
|
(d) |
any allocation or determination made by the Lender under or in connection with this Clause shall be binding on the Borrower; and
|
(e) |
without prejudice to the generality of the foregoing, the Borrower shall not, by
|
5.6 |
Loan Account
|
5.7 |
Computation
|
6.1 |
Continuing representations and warranties
|
(a) |
Due Incorporation/Valid Existence: each of the Borrower and the other
corporate Security Parties is duly incorporated and validly existing and in good standing under the laws of their respective countries of incorporation, and have power to own their respective property and assets, to carry on their respective
business as the same are now being lawfully conducted and to purchase, own, finance and operate vessels, or, as the case may be, manage vessels, as well as to undertake the obligations which they have undertaken or shall undertake pursuant to
the Finance Documents;
|
(b) |
Due Corporate Authority: each of the Borrower and the other corporate
Security Parties has power to execute, deliver and perform its obligations under the Finance Documents to which it is a party and to borrow the Commitment and to make all the payments contemplated by, and to comply with, those Finance
Documents to which that Security Party is a party and each of the corporate Security Parties has power to execute and deliver and perform its obligations under the Finance Documents to which it is or is to be a party; all necessary corporate,
shareholder and other action has been taken to authorise the execution, delivery and performance of the same and no limitation on the powers of the Borrower to borrow will be exceeded as a result of borrowing the Loan;
|
(c) |
Litigation: no litigation or arbitration, tax claim or administrative
proceeding (including action relating to any alleged or actual breach of the ISM Code and the ISPS Code) relating to sums exceeding in respect of the Borrower, the
amount of Six hundred thousand Dollars ($600,000) and in respect of the Corporate Guarantor, the amount of One million two hundred thousand Dollars
($1,200,000) involving a potential liability of the Borrower or the Corporate Guarantor is current or pending or (to its or its officers'
knowledge) threatened against the Borrower or the
|
(d) |
No conflict with other obligations: the execution and delivery of, the
performance of its obligations under, and compliance with the provisions of, the Finance Documents by the relevant Security Parties will not (i) contravene any existing applicable law, statute, rule or regulation or any judgment, decree or
permit to which the Borrower or any other Security Party is subject, (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which the Borrower or any other
Security Party is a party or is subject to or by which it or any of its property is bound, (iii) contravene or conflict with any provision of the memorandum and articles of association/articles of incorporation/by-laws/statutes or other
constitutional documents of the Borrower or any other Security Party or (iv) result in the creation or imposition of or oblige the Borrower or any other Security Party to create any Security Interest (other than a Permitted Security Interest)
on any of the undertakings, assets, rights or revenues of the Borrower or any other Security Party;
|
(e) |
Financial Condition: to the knowledge of the officers/directors or
shareholders of the Borrower the financial condition of the Borrower and of the other Security Parties has not suffered any material deterioration since that condition was last disclosed to the Lender;
|
(f) |
No Immunity: neither the Borrower nor any other Security Party nor any of
their respective assets are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgement, execution or other enforcement);
|
(g) |
Shipping Company: each of the Borrower and the Approved Commercial Manager is
a shipping company involved in the owning or, as the case may be, managing of ships engaged in international voyages and earning profits in free foreign currency;
|
(h) |
Licences/Authorisation: every consent, authorisation, license or approval of,
or registration with or declaration to, governmental or public bodies or authorities or courts required by any Security Party to authorise, or required by any Security Party in connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of each of the Finance Documents or the performance by each Security Party of its obligations under the Finance Documents to which such Security Party is or is to be a party has been obtained or
made and is in full force and effect and there has been no default in the observance of any of the conditions or restrictions (if any) imposed in, or in connection with, any of the same so far as the Borrower is aware;
|
(i) |
Perfected Securities: the Finance Documents do now or, as the case may be,
will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents):
|
(i) |
constitute the relevant Security Party's legal, valid and binding obligations enforceable against that Security Party in accordance with their respective terms (having
the requisite corporate benefit which is legally and economically sufficient); and
|
(ii) |
create legal, valid and binding Security Interests (having the priority specified in the relevant Finance Document) enforceable in accordance with
|
(j) |
No third party Security Interests: without limiting the generality of Clause 6.1(i) (Perfected Securities), at the time of the
execution and delivery of each Finance Document to which the Borrower is a party:
|
(i) |
the Borrower will have the right to create all the Security Interests which that Finance Document
purports to create; and
|
(ii) |
no third party will have any Security Interests (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to
which any such Security Interest, by its terms, relates;
|
(k) |
No Notarisation/Filing/Recording: save for the registration of any mortgage
in the Registry, it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement or any of the other Finance Documents that it or they or any other instrument be notarised, filed, recorded,
registered or enrolled in any court, public office or elsewhere or that any stamp, registration or similar tax or charge be paid on or in relation to this Agreement or the other Finance Documents;
|
(l) |
No conflict: There are no other agreements or arrangements which may
adversely affect or conflict with the Finance Documents or the security thereby created;
|
(m) |
Valid Choice of Law: the choice of law agreed to govern this Agreement
and/or any other Finance Document and the submission to the jurisdiction of the courts agreed in each of the Finance Documents are or will be, on execution of the respective Finance Documents, valid and binding on the Borrower and any other
Security Party which is or is to be a party thereto;
|
(n) |
Shareholdings:
|
(i) |
all the shares in the Borrower are legally and beneficially held directly or indirectly by the Beneficial Shareholders disclosed to the Lender before signing of this
Agreement; and
|
(ii) |
no change of control has been made directly or indirectly in the ownership,
beneficial ownership, or management of the Borrower or any share therein or of the Vessel and 100% of the shares and voting rights in the Borrower and at least 20% in the Corporate Guarantor will remain throughout the Security Period in the
ultimate legal and beneficial ownership of the Beneficial Shareholders disclosed to the Lender before signing of this Agreement unless otherwise permitted by the Lender; and
|
(o) |
Sanctions:
|
(i) |
none of the Security Parties nor any other member of the Group:
|
a) |
is a Sanctions Restricted Person;
|
b) |
owns or controls directly or indirectly a Sanctions Restricted Person;
|
c) |
has a Sanctions Restricted Person serving as a director, officer or, to the best of its knowledge, employee; and
|
(ii) |
no proceeds of the Loan shall be made available, directly or to the knowledge of the Borrower (after reasonable enquiry) indirectly, to or for the benefit of a
Sanctions Restricted Person contrary to Sanctions or for transactions in a Sanctions Restricted Jurisdiction nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
6.2 |
Initial representations and warranties
|
(a) |
Direct obligations - Pari Passu: the obligations of the Borrower under this
Agreement are direct, general and unconditional obligations of the Borrower and rank at least pari passu with all other present and future unsecured and unsubordinated Financial Indebtedness of the Borrower with the exception of any
obligations which are mandatorily preferred by law;
|
(b) |
Information: all information, accounts, statements of financial position,
exhibits and reports furnished by or on behalf of any Security Party to the Lender in connection with the negotiation and preparation of this Agreement and each of the other Finance Documents are true and accurate in all material respects and
not misleading, do not omit material facts and all reasonable enquiries have been made to verify the facts and statements contained therein; to the best knowledge of the Directors/Officers or shareholders of the Borrower, there are no other
facts the omission of which would make any fact or statement therein misleading and, in the case of accounts and statements of financial position, they have been prepared in accordance with generally accepted accounting principles which have
been consistently applied;
|
(c) |
No Event of Default: no Event of Default has occurred and is continuing and
neither the Borrower nor the Corporate Guarantor has been declared in default under any agreement relating to Financial Indebtedness to which it is a party or by which it may be bound;
|
(d) |
No Taxes: no Taxes are imposed by deduction, withholding or otherwise on any
payment to be made by the Borrower under this Agreement and/or any other of the Finance Documents or are imposed on or by virtue of the execution or delivery of this Agreement and/or any other of the Finance Documents or any document or
instrument to be executed or delivered hereunder or thereunder. In case that any Tax exists now or will be imposed in the future, it will be borne by the Borrower;
|
(e) |
Ownership/Flag/Seaworthiness/Class/Insurance of the Vessel: the Vessel is
and on the Drawdown Date will be:
|
(i) |
in the absolute and free from Security Interests (other than Permitted Security Interests ) ownership of the Borrower who is and will on and after the Drawdown Date be
the sole legal and beneficial owner of the Vessel;
|
(ii) |
registered in the name of the Borrower through the Registry under the laws and flag of the Flag State;
|
(iii) |
operationally seaworthy and in every way fit for service;
|
(iv) |
classed with the Classification Society which is a member of IACS and which has been approved by the Lender in writing and such class will be free of any overdue
requirements and recommendations of the Classification Society affecting class;
|
(v) |
insured in accordance with the provisions of this Agreement and the Mortgage;
|
(vi) |
managed by the Approved Managers; and
|
(vii) |
in full compliance with the ISM and the ISPS Code;
|
(f) |
No Charter: unless otherwise permitted in writing by the Lender, the Vessel
is not and will not on the Drawdown Date be subject to any charter or contract nor to any agreement to enter into any charter or contract which, if entered into after the Drawdown Date would have required the consent of the Lender under any
of the Finance Documents and there will not on or before the Drawdown Date be any agreement or arrangement whereby the Earnings of the Vessel may be shared with any other person;
|
(g) |
No Security Interests: neither the Vessel, nor its Earnings, Requisition
Compensation or Insurances nor any other properties or rights which are, or are to be, the subject of any of the Security Documents nor any part thereof will, on the Drawdown Date, be subject to any Security Interests other than Permitted
Security Interests or otherwise permitted by the Finance Documents;
|
(h) |
Compliance with Environmental Laws and Approvals: except as may already have
been disclosed by the Borrower in writing to, and acknowledged in writing by, the Lender:
|
(i) |
the Borrower and its Related Companies have complied with the provisions of all Environmental Laws;
|
(ii) |
the Borrower and its Related Companies have obtained all Environmental Approvals and are in compliance with all such Environmental Approvals; and
|
(iii) |
neither the Borrower nor any of its Related Companies have received notice of any Environmental Claim that the Borrower or any of its Related Companies is not in
compliance with any Environmental Law or any Environmental Approval;
|
(i) |
No Environmental Claims: except as may already have been disclosed by the
Borrower in writing to, and acknowledged in writing by, the Lender:
|
(i) |
there is no Environmental Claim in excess of Six hundred thousand Dollars ($600,000) pending
or, to the best of the Borrower's knowledge and belief, threatened against the Borrower or the Vessel or the Borrower's Related
|
(ii) |
there has been no emission, spill, release or discharge of a Material of Environmental Concern from the Vessel or any other Relevant Ship or any vessel owned by,
managed or crewed by or chartered to the Borrower which could give rise to an Environmental Claim;
|
(j) |
Copies true and complete: the copies of the Management Agreements delivered
or to be delivered to the Lender pursuant to Clause 7.2 (Conditions precedent to the making of the Commitment) are, or will when delivered be, true and complete copies of such documents; such documents will when delivered constitute valid and binding obligations of the
parties thereto enforceable in accordance with their respective terms and there will have been no amendments or variations thereof or defaults thereunder;
|
(m) |
Compliance with the ISM Code: the Vessel and the Operator comply with the
requirements of the ISM Code and the SMC which has been issued in respect of the Vessel and shall remain valid on the Drawdown Date and thereafter throughout the Security Period.
|
(n) |
Compliance with ISPS Code: the Vessel and the Operator comply with the
requirements of the ISPS Code and the ISSC which has been issued in respect of the Vessel and shall remain valid on the Drawdown Date and thereafter throughout the Security Period;
|
(o) |
No US Tax Obligor: None of the Security Parties and the Group Members is a US Tax Obligor;
|
(p) |
Shareholding: all of the issued shares in the Borrower and at least 20% of
the issued shares in the Corporate Guarantor are legally and ultimately beneficially owned by the Beneficial Shareholders; and
|
(q) |
Taxes paid: the Borrower has paid all taxes applicable to, or imposed on or
in relation to itself, its business or the Vessel.
|
6.3 |
Acting for its own account - Money laundering
|
6.4 |
Representations Correct
|
6.5 |
Repetition of Representations and Warranties
|
(a) |
on the date of service of the Drawdown Notice;
|
(b) |
on the Drawdown Date; and
|
(c) |
on each Interest Payment Date throughout the Security Period,
|
7.1 |
Conditions precedent to the execution of this Agreement
|
(a) |
Constitutional Documents: a duly certified true copy of the Articles of
Incorporation and By-Laws or the Memorandum and Articles of Association, or of any other constitutional documents, as the case may be, of each corporate Security Party;
|
(b) |
Certificates of incumbency: a recent certificate of incumbency of each
corporate Security Party issued by the appropriate authority or, as appropriate, signed by the secretary or a director thereof, stating the officers and the directors of each of them;
|
(c) |
Shareholding: a written letter or statement addressed to the Lender from individual(s) acceptable to the Lender confirming the identity of the
Beneficial Shareholder(s) of the Borrower, in line with "know your customer" procedures of the Lender;
|
(d) |
Resolutions: minutes of separate meetings of the directors of each corporate
Security Party and in respect of the Borrower, of the shareholders thereof, at which there was approved (inter alia) the entry into, execution, delivery and performance of this Agreement, the other Finance Documents and any other documents
executed or to be executed pursuant hereto or thereto to which the relevant corporate Security Party is or is to be a party;
|
(e) |
Powers of Attorney: the original of any power(s) of attorney and any further
evidence of the due authority of any person signing this Agreement and the other Finance Documents;
|
(f) |
Consents: evidence that all necessary licences, consents, permits and
authorisations (including exchange control ones) have been obtained by any Security Party for the execution, delivery, validity, enforceability, admissibility in evidence and the due performance of the respective obligations under or pursuant
to this Agreement and the other Finance Documents;
|
(g) |
Fees: evidence that the fees referred to in Clause 10.10 (Fees) have been paid in full;
|
(h) |
Other documents: any other documents or recent certificates or other evidence
which would be reasonably required by the Lender in relation to any corporate Security Party evidencing that the relevant Security Party has been properly established, continues to exist validly and is in good standing;
|
(i) |
Management Agreements-Assignable Charterparty: a copy of each of the following documents certified as true and complete by the legal counsel of the Borrower:
|
(i) |
each Management Agreement evidencing that the Vessel is managed by the relevant
Approved Manager on terms acceptable to the Lender; and
|
(ii) |
any Assignable Charterparty; and
|
(j) |
Operating Account: evidence that the Operating Account has been duly opened
and all mandate forms and other legal documents required for the opening of an account under any applicable law, as well as signature cards and properly adopted authorizations have been duly delivered to and have been accepted by the
compliance department of the Lender.
|
7.2 |
Conditions precedent to the making of the Commitment
|
(a) |
Conditions precedent: evidence that the conditions precedent set out in Clause 7.1 (Conditions precedent to the execution of this Agreement) remain fully satisfied;
|
(b) |
Drawdown Notice: the Drawdown Notice duly executed and issued;
|
(c) |
Security Documents: each of the Security Documents duly executed and where appropriate duly registered with the Registry or any other competent
authority (as required);
|
(d) |
Title and no Security Interests: evidence that the Vessel is and on the Drawdown Date will be duly registered in the ownership of the Borrower with the Registry and under the laws and flag of the Flag State
free from any Security Interests save for those in favour of the Lender and otherwise as contemplated herein;
|
(e) |
Insurances: evidence in form and substance satisfactory to the Lender that the Vessel has been or will - on the Drawdown Date- be insured in accordance with the insurance requirements provided for in this
Agreement and the other Security Documents, , together with an opinion from insurance consultants (appointed by the Lender at the Borrower's expense) as to the adequacy of the insurances effected
|
(f) |
Insurers' confirmations: all necessary confirmations from the insurers of the
Vessel that they will issue letters of undertaking and endorse notice of assignment and loss payable clauses on the Insurances, in form and substance satisfactory to the Lender in its sole discretion and - in the event of fleet cover -
accompanied by waivers for liens for unpaid premium of other vessels managed by the Approved Managers and which are not subject to any mortgage in favour of the Lender) and (if required by the Lender) an opinion signed by an independent firm
of marine insurance brokers appointed and/or approved by the Lender at the expenses of the Borrower confirming the adequacy of the Insurances maintained on the Vessel;
|
(g) |
MII & MAPI: the MII and MAPI shall have been reimbursed by the Borrower as provided in Clause 10.7 (MII and MAPI costs);
|
(h) |
Access to class records: due authorisation in form and substance satisfactory
to the Lender authorising the Lender to have access and/or obtain any copies of class records or other information at its discretion from the Classification Society of the Vessel, provided however, that the Lender shall not exercise such right unless and until an Event of Default has occurred and is continuing;
|
(i) |
Notices of assignment: duly executed notices of assignment in the form prescribed by the Security Documents;
|
(j) |
Mortgage registration; evidence that the Mortgage on the Drawdown Date will be registered against the Vessel through the Registry under the laws and flag of the Flag State.
|
(k) |
Trading Certificates: copies of the trading certificates of the Vessel evidencing the same to be valid and in force;
|
(l) |
Class confirmation: evidence from the Classification Society that the Vessel is classed with the class notation (referred to in the
Mortgage), with the Classification Society or to a similar standard with another classification society of like standing to be specifically approved by the Lender and remains free from any overdue requirements or recommendations affecting her class;
|
(m) |
Trim and stability booklet: a copy of the trim and stability booklet certifying the lightweight of the Vessel certified as true and complete by the legal counsel of the Borrower;
|
(n) |
DOC and SMC: copies of (i) the DOC referred to in paragraph (a) in the
definition of the ISM Code Documentation and (ii) of the SMC for the Vessel;
|
(o) |
ISPS Code: a copy of the ISSC for the Vessel;
|
(p) |
Valuation: charter free valuation of the Vessel, at the Borrower's expense, as of March 22, 2021, prepared on the basis specified in Clause 8.5(b) (Valuation of Vessel) by an Approved Shipbroker in form and substance satisfactory to the Lender, for
|
(q) |
Insurance Letter: the Insurance Letter duly executed;
|
(r) |
Pledged Deposit: evidence that the Borrower has deposited or, as the case may be, will deposit concurrently with the drawdown of the Loan, the Pledged
Deposit of Five hundred thousand Dollars ($500,000) as provided in Clause
8.1(j) (Pledged Deposit);
|
(s) |
Existing Indebtedness: evidence satisfactory to the Lender that the Existing
Indebtedness will be fully repaid upon the drawdown of the Loan;
|
(t) |
Deed of Release: an original of the Deed of Release and Notices of
Reassignment executed by Wilmington Trust (in its capacity as security agent of the Existing Lenders) and of each document to be delivered under or pursuant to it, together with evidence satisfactory to the Lender of its due execution by
Wilmington Trust;
|
(u) |
Acknowledgement of Receipt: a receipt in writing in form and substance
satisfactory to the Lender including an acknowledgement and admission of the Borrower and/or any other Security Party to the effect that the Loan was drawn by the Borrower and a declaration by the Borrower that all conditions precedent have
been fulfilled, that there is no Event of Default and that all the representations and warranties are true and correct;
|
(v) |
Legal opinions: draft opinion from lawyers appointed by the Lender as to all
the matters referred to in Clauses 6.1(a) (Due Incorporation/Valid Existence) and (b) (Due Corporate Authority) and all such aspects of law as the Lender shall deem relevant to this Agreement and the other Finance Documents and any other documents executed pursuant hereto or thereto;
|
(w) |
Security Parties' process agent: a letter from each Security Party's agent
for receipt of service of proceedings referred to in each Security Document to which the relevant Security Party is a party, accepting its appointment under each of the relevant Security Documents; and
|
(x) |
Flag State opinion: draft opinion of legal advisers to the Lender on matters of the laws of the Flag State;
|
(y) |
Borrower's equity: Borrower's equity required for the refinancing of the
Existing Indebtedness under the Existing Loan Agreement has been deposited into the Operating Account prior to the Drawdown Date so that it is remitted to Wilmington Trust (in its capacity as the facility agent of the Existing Lenders)
together with the amount of the Loan.
|
7.3 |
No change of circumstances
|
(a) |
Representations and warranties: the representations and warranties set out in
Clause 6 (Representations and
warranties) and in each of the other Finance
|
(b) |
No Event of Default: no Event of Default shall have occurred and be
continuing or would result from the drawdown of the Loan;
|
(c) |
No change: the Lender shall be satisfied that (i) there has been no change
in control directly or indirectly in the ownership, beneficial ownership, or management of the Borrower or any share therein or of the Vessel and (ii) 100% of the shares and voting rights in the Borrower and at least 20% in the Corporate
Guarantor remain in the ultimate legal and beneficial ownership of the Beneficial Shareholders disclosed to the Lender prior to the date of this Agreement and (iii) there has been no Material Adverse Change in the financial condition of any
Security Party which (change) might, in the opinion of the Lender, be detrimental to the interests of the Lender; and
|
(d) |
No Market Disruption Event: none of the circumstances contemplated by Clause
3.6 (Market disruption – Non
Availability) has occurred and is continuing.
|
7.4 |
Know your customer and money laundering compliance
|
7.5 |
Further documents
|
7.6 |
Waiver of conditions precedent
|
8.1 |
General
|
(a) |
Notice on adverse change or Default: promptly inform the Lender upon
becoming aware of any occurrence which might adversely affect the ability of any Security Party to perform its obligations under any of the Finance Documents and, without limiting the generality of the foregoing, will inform the Lender of any
Event of Default forthwith upon becoming aware thereof and will from time to time, if so requested by the Lender, confirm to the Lender in writing that, save as otherwise stated in such confirmation, no Event of Default has occurred and is
continuing;
|
(b) |
Consents and licenses: without prejudice to Clause 6 (Representations and warranties) and Clause 7 (Conditions precedent), obtain
or cause to be obtained, maintain in full force and effect and comply in all material respects with the conditions and restrictions (if any) imposed in, or in connection with, every consent, authorisation, license or approval of governmental
or public bodies or authorities or courts and do or cause to be done, all other acts and things which may from time to time be necessary or desirable under applicable law for the continued due performance of all the obligations of the
Security Parties under each of the Finance Documents;
|
(c) |
Use of Loan proceeds: use the Loan exclusively for the purpose specified in
Clause 1.1 (Amount and Purpose);
|
(d) |
Pari passu: ensure that its obligations under this Agreement shall, without
prejudice to the provisions of this Clause 8.1, at all times rank at least pari passu with all its other present and future unsecured and unsubordinated Financial Indebtedness with the exception of any obligations which are mandatorily
preferred by law and not by contract;
|
(e) |
Financial statements: furnish the Lender with (i) annual financial
statements of the Borrower and the Corporate Guarantor audited by an Approved Auditor, and (ii) un-audited semi-annual financial statements of the Corporate Guarantor, in each case prepared in accordance with Applicable Accounting Principles
consistently applied, in respect of each Financial Year or each semester (as the case may be) as soon as practicable but not later than 180 days (in the case of the annual financial statements) and 90 days (in the case of the un-audited
semi-annual financial statements of the Corporate Guarantor) after the end of the financial period to which they relate, in each case commencing with the Financial Year ending on 31st December, 2020, provided that the first financial statements of the Borrower for the Financial Year ending on 31st December, 2020, will be unaudited;
|
(f) |
Provision of further information: promptly, when requested, provide the
Lender with such customary financial and other information and accounts relating to the business, undertaking, assets, liabilities, revenues, financial condition or affairs of any Security Party and, on a consolidated basis, the Group and
such other further general information relating to any Security Party and, on a consolidated basis, the Group as the Lender from time to time may reasonably require, save where any
|
(g) |
Financial Information: provide the Lender from time to time as the Lender may reasonably request with information on the financial conditions, actual and projected for the following 12 month period, cash flow position, commitments and
operations of the Borrower and on consolidated basis of the Group including cash flow analysis and voyage accounts of the Vessel with a breakdown of
income and running expenses showing net trading profit, trade payables and trade receivables, such financial details to be certified by an authorized signatory of the Borrower as to their correctness;
|
(h) |
Information on the employment of the Vessel: provide the Lender from time to
time as the Lender may request with information on the employment of the Vessel, as well as on the terms and conditions of any charterparty, contract of affreightment, agreement or related document in respect of the employment of the Vessel,
such information to be certified by an authorised signatory of the Borrower as to their correctness;
|
(i) |
Banking operations: subject to the provisions of Clause 13.7 (Relocation of Operating Account), ensure that all banking operations in connection with the Vessel are carried out through the Operating Account;
|
(j) |
Pledged Deposit: ensure that throughout the Security Period the Borrower shall maintain in an the Operating Account with the Lender, cash minimum
liquidity in the amount of Five hundred thousand Dollars ($500,000) pledged in favour of the Lender (herein, the "Pledged
Deposit");
|
(k) |
Subordination: ensure that all Financial Indebtedness of the Borrower to its shareholders is fully subordinated to the rights of the Lender under the Finance Documents, all in a form acceptable to the Lender, and
to subordinate to the rights of the Lender under the Finance Documents any Financial Indebtedness issued to it by its shareholders, all in a form acceptable to the Lender;
|
(l) |
Obligations under Finance Documents: duly and punctually perform each of the
obligations expressed to be assumed by it under the Finance Documents to which is or it is to be a party;
|
(m) |
Payment on demand: pay to the Lender within seven (7) days from the Lender's
first demand any sum of money which is due and payable by the Borrower to the Lender under this Agreement but in respect of which it is not specified in any other Clause when it is due and payable; and
|
(n) |
Compliance with Laws and Regulations: to comply, or procure compliance with all laws or regulations relating to the Borrower and/or the Vessel, its ownership, operation and management or to the business of the Borrower and cause this Agreement and the other Finance Documents to comply with and satisfy all the requirements and formalities established by the applicable
laws to perfect this Agreement and the other Finance Documents as valid and enforceable Finance Documents;
|
(o) |
Compliance with ISM Code: procure that the Approved Commercial Manager and
any Operator:
|
(i) |
will comply with and ensure that the Vessel and any Operator by no later than the Drawdown Date complies with the requirements of the ISM Code, including (but not
limited to) the maintenance and renewal of valid certificates pursuant thereto throughout the Security Period;
|
(ii) |
immediately inform the Lender if there is any threatened or actual withdrawal of the Borrower's, the Approved Commercial Manager's or an Operator's DOC or the SMC in
respect of the Vessel; and
|
(iii) |
promptly inform the Lender upon the issue to the Borrower, the Approved Commercial Manager or any Operator of a DOC and to the Vessel of an SMC or the receipt by the
Borrower, the Approved Commercial Manager or any Operator of notification that its application for the same has been realised;
|
(p) |
Compliance with ISPS Code: procure that the Approved Commercial Manager or
any Operator will:
|
(i) |
maintain at all times a valid and current ISSC respect of the Vessel;
|
(ii) |
immediately notify the Lender in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC in respect of the Vessel; and
|
(iii) |
procure that the Vessel will comply at all times with the ISPS Code;
|
(q) |
Maintenance of Security Interests:
|
(i) |
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to
create; and
|
(ii) |
without limiting the generality of paragraph (q) above, at its own cost, promptly register, file, record or enrol any Finance Document with any court or authority in
all Relevant Jurisdictions, pay any stamp, registration or similar tax in all Relevant Jurisdictions in respect of any Finance Document, give any notice or take any other step which may be or has become necessary or desirable for any Finance
Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates;
|
(r) |
Inspections/Surveys: once per year or in case an Event of Default has
occurred and is continuing at any time that the Lender might consider to be necessary or useful, have the Vessel inspected and/or surveyed at the expense of the Borrower by surveyors and/or inspectors appointed by the Lender and the Borrower
hereby duly authorise the Lender to review the insurance and operating records of the Borrower provided that any inspections/surveys/reviews are conducted at reasonable times and without interfering with the daily operations and the ordinary
trading of the Vessel;
|
(s) |
Notification of litigation: provide the Lender with details of any legal or
administrative action relating to an amount exceeding Seven hundred Fifty thousand Dollars ($750,000) involving the Borrower, the Approved Commercial
|
(t) |
Notification of default: the Borrower will notify the Lender as soon as the Borrower becomes aware of the occurrence of an Event of Default and will keep the Lender fully up-to-date with all developments;
|
(u) |
Registered office: maintain its registered office at the address referred to
in the Recital; and will not establish, or do anything as a result of which it would be deemed to have, a place of business in the United Kingdom or the United States of America; and
|
(v) |
Compliance with Covenants: duly and punctually perform all obligations under
this Agreement and the other Finance Documents.
|
8.2 |
Negative undertakings
|
(a) |
Negative pledge:
|
(i) |
cease to hold the legal title to, and own the entire beneficial interest in the Vessel, its Insurances and Earnings, free from all Security Interests and other
interests and rights of every kind, except for those created by the Finance Documents and other Permitted Security Interests and the effect of the assignments contained in the General Assignment and any other Finance Documents; and
|
(ii) |
permit any Security Interest (other than a Permitted Security Interest) to subsist, arise or be created or extended over all or any part of its present or future
undertakings, assets, rights or revenues to secure or prefer any present or future Financial Indebtedness or other liability or obligation of the Borrower or any other person;
|
(b) |
No further Financial Indebtedness: incur no further Financial Indebtedness
other than Permitted Financial Indebtedness;
|
(c) |
No merger: merge or consolidate with any other person;
|
(d) |
No disposals:
|
(i) |
sell, transfer, abandon, lend, lease or otherwise dispose of or cease to exercise direct control over any part (being either alone or when aggregated with all other
disposals falling to be taken into account pursuant to this
|
(ii) |
transfer, lease or otherwise dispose of any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to
damages or compensation;
|
(e) |
No other business: undertake any type of business other than the ownership
and operation of the Vessel and the chartering of the Vessel to third parties;
|
(f) |
No acquisitions: acquire any further assets other than the Vessel and rights
arising under contracts entered into by or on behalf of the Borrower in the ordinary course of its business of owning, operating and chartering the Vessel;
|
(g) |
No other obligations: incur any liability or obligations except liabilities
and obligations arising under the Finance Documents or contracts entered into in the ordinary course of its business of owning, operating and chartering the Vessel or any other Permitted Financial Indebtedness, (and for the purposes of this
Clause 8.2(g) (No other obligations) fees to be paid pursuant to the Management Agreements in respect of the Vessel shall be considered as permitted obligations under the
Finance Documents);
|
(h) |
No repayment of borrowings: following the occurrence of an Event of Default
that is continuing, repay the principal of, or pay interest on or any other sum in connection with, any of its Financial Indebtedness except for Financial Indebtedness pursuant to the Finance Documents;
|
(i) |
No Payments: except pursuant to this Agreement and the other Finance
Documents (and then only to the extent expressly permitted by the same) not pay out any funds (whether out of the Earnings or out of moneys collected under the General Assignment and/or the other Finance Documents or not) to any company or
person except in connection with the administration of the Borrower, the operation, upgrade, maintenance and/or repair of the Vessel;
|
(j) |
No guarantees: issue any guarantees or indemnities or otherwise become
directly or contingently liable for the obligations of any person, firm, or corporation except pursuant to the Finance Documents and except for guarantees or indemnities from time to time required in the ordinary course by any protection and
indemnity or war risks association with which the Vessel is entered, guarantees required to procure the release of the Vessel from any arrest, detention, attachment or levy or guarantees or undertakings required for the salvage of the Vessel;
|
(k) |
No loans: make any loans or advances to, or any investments in any person,
firm, corporation, joint venture or other entity including (without limitation) any loan or advance or grant any credit (save for normal trade credit in the ordinary course of business) to any officer, director, stockholder or employee or any
other company managed by the Approved Commercial Manager directly or through the managers of the Vessel or agree to do so;
|
(l) |
No securities: permit any Financial Indebtedness of the Borrower to any
person
|
(m) |
No dividends or distribution: on the condition that:
|
(i) |
no Event of Default has occurred and is continuing,
|
(ii) |
no Event of Default will result from the payment of such dividends or the making of any other form of distribution or any redemption, purchase or return of share
capital,
|
(iii) |
prior written notice in respect thereto will be given to the Lender, and
|
(iv) |
the Total Liabilities/Total Assets ratio of the Corporate Guarantor does not exceed 75%,
|
(n) |
No subsidiaries: form or acquire any Subsidiaries;
|
(o) |
No change of Business Structure: change the nature, organisation and conduct
of the business of the Borrower or the Approved Commercial Manager as owner of the Vessel or as manager of Vessel, as the case may be, or carry on any business other than the business carried on at the date of this Agreement;
|
(p) |
No change of Legal Structure: (such consent not be unreasonably withheld)
ensure that none of the documents defining the constitution of the Borrower shall be materially (in the Lender's opinion) altered in any manner whatsoever;
|
(q) |
No Security Interest of Assets: allow any part of its undertaking, property,
assets or rights, whether present or future, to be mortgaged, charged, pledged, used as a lien or otherwise encumbered without the prior written consent of the Lender save for any Permitted Security Interests;
|
(r) |
Master Agreement Derivatives: not enter into any transaction in a
derivative other than any under a master agreement entered into with the Lender; and
|
(s) |
No change of control: throughout the Security Period:
|
8.3 |
Undertakings concerning the Vessel
|
(a) |
Chartering: not without the prior written consent of the Lender which shall
not be unreasonably withheld (and then only subject to such conditions as the Lender may impose) let or agree to let the Vessel:
|
(i) |
on demise charter for any period; or
|
(ii) |
by any Assignable Charterparty; or
|
(iii) |
other than on an arm's length basis;
|
(b) |
No amendment to Assignable Charterparty: not without the prior written consent of the Lender which shall not be unreasonably withheld waive or fail to enforce, any Assignable Charterparty to which it is a
party or any of its provisions, and will promptly notify the Lender of any amendment or supplement to any Assignable Charterparty;
|
(c) |
Approved Managers: not without the prior written consent of the Lender which
|
(d) |
Ownership/Management/Control: ensure that the Vessel remains registered in
the ownership of the Borrower under the laws of the Flag State and thereafter ensure that the Vessel will maintain her ownership, management and control;
|
(e) |
Class: ensure that the Vessel remains in class free of overdue
recommendations by the Classification Society and provide the Lender on demand with copies of all class and trading certificates of the Vessel;
|
(f) |
Insurances: ensure that all Insurances (as defined in the relevant
Mortgage/General Assignment) of the Vessel are maintained and comply with all insurance requirements specified in this Agreement and in the Mortgage and in case of failure to maintain the Vessel so insured, authorise the Lender (and such
authorisation is hereby expressly given to the Lender) to have the right but not the obligation to effect such Insurances on behalf of the Owner thereof (and in case that the Vessel remains in port for an extended period) to effect port risks
insurances at the cost of the Borrower which, if paid by the Lender, shall be Expenses; if (i) an Event of Default has occurred and is continuing or (ii) there has
been any change in the insurance placement within such year or (iii) there has been a Material Adverse Change of the financial condition of any of the insurers of the Vessel at the Lender's sole opinion, the Lender shall be entitled to
obtain once per year at Borrower's expense an opinion from insurance consultants (appointed by the Lender at the Borrower's expense) as to the adequacy of the insurances effected or to be effected in respect of the Vessel;
|
(g) |
Transfer/Security Interests: except as provided in Clause 4.3 (b) (Sale of the Vessel - Refinancing), not without the prior written consent of the Lender sell or otherwise dispose of the Vessel or any share therein or create or agree to
create or permit to subsist any Security Interest over the Vessel (or any share or interest therein other than Permitted Security Interests;
|
(h) |
Not imperil Flag, Ownership, Insurances: ensure that the Vessel following
her delivery, is maintained and trades in conformity with the laws of the Flag State, of its owning company or of the nationality of the officers, the requirements of the Insurances and nothing is done or permitted to be done which could
endanger the flag of the Vessel or its unencumbered (other than Security Interests in favour of the Lender and Security Interests permitted by this Agreement) ownership or its Insurances;
|
(i) |
Mortgage Covenants: always comply with all the covenants provided for in the
Mortgage;
|
(j) |
Assignment of Earnings: not assign or agree to assign otherwise than to the
Lender the Earnings or any part thereof.
|
(k) |
Sharing of Earnings: not, without the prior written consent of the Lender
which shall not be unreasonably withheld
|
(i) |
enter into any agreement or arrangement for the sharing or pooling of any
Earnings;
|
(ii) |
enter into any agreement or arrangement for the postponement of any date on which any Earnings are due; the reduction of the amount of any Earnings or otherwise for the
release or adverse alteration of any right of the Borrower to any Earnings; and
|
(iii) |
enter into any agreement or arrangement for the release of, or adverse alteration to, any guarantee or Security Interest relating to any Earnings.
|
(l) |
Assignable Charterparty: ensure and procure that in the event of the Vessel
being employed under an Assignable Charterparty:
|
(i) |
the Borrower shall execute and deliver to the Lender within fifteen (15) days from the Lender's relevant request a specific assignment of all its rights, title and
interest in and to such charter and any charter guarantee (if available) in the form of a Charterparty Assignment and a notice of such assignment addressed to the relevant charterer;
|
(ii) |
the Borrower will ensure (on a reasonable endeavours basis) that the relevant charterer and any charter guarantor agree to acknowledge to the Lender the specific
assignment of such charter and charter guarantee by executing an acknowledgement substantially in the form included in the relevant Charterparty Assignment;
|
(iii) |
in the case where such charter is a demise charter, the relevant charterer to undertake to the Lender (1) to comply with all of the Borrower's undertakings with regard
to the employment, insurances, operation, repairs and maintenance of the Vessel contained in this Agreement, the Mortgage and the General Assignment and (2) to provide (inter alia) an assignment of its interest in the insurances of the Vessel in the form of a tripartite agreement in form and substance acceptable to the Lender, to be made between the Lender, the relevant
Owner and such charterer;
|
(m) |
No freight derivatives: not enter into or agree to enter into any freight
derivatives or any other instruments which have the effect of hedging forward exposures to freight derivatives without the Lender's consent;
|
(n) |
Vessel's inspection: permit the Lender (i) by surveyors or other persons appointed by it in its behalf to board its Vessel at all reasonable times (but in any event without interfering with the daily
operations and the ordinary trading of its Vessel and
not more than once per annum or if an Event of Default has occurred and is continuing, at any time the Lender considers it appropriate or necessary) for the purpose of inspecting her condition or for the purpose of satisfying itself with
regard to proposed or executed repairs and to afford all proper facilities for such inspections and (ii) at any time by financial or insurance advisors or other persons appointed by the Lender to review the operating and insurance records
of its Vessel and the Owner and the costs (as supported by vouchers) of any and all such inspections shall be borne by the Borrower;
|
(o) |
Compliance with Environmental Laws: comply with, and procure that all its
Environmental Affiliates comply with, all Environmental Laws including without limitation, requirements relating to manning and establishment of financial responsibility and to obtain and comply with, and procure that all its Environmental
Affiliates comply with, all Environmental Approvals and to notify the Lender
|
(i) |
of any Environmental Claim for an amount or amounts in aggregate exceeding Six hundred
thousand Dollars ($600,000) made against the Vessel, any Relevant Ship and/or her respective owner; and
|
(ii) |
upon becoming aware of any incident which may give rise to an Environmental Claim and to keep the Lender advised in writing of the Borrower's response to such
Environmental Claim on such regular basis and in such detail as the Lender shall require; and
|
(p) |
War Risk Insurance cover: in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Vessel to enter or trade to any zone which is declared a war zone by any
government or by the Vessel's war risks insurers unless first obtaining the consent to such employment or trade of the insurers and complying with such requirements as to extra premium or otherwise as the insurers may prescribe require.
|
8.4 |
Validity of Securities - Earnings - Taxes etc.
|
(a) |
Validity: ensure and procure that all governmental or other consents
required by law and/or any other steps required for the validity, enforceability and legality of this Agreement and the other Finance Documents are maintained in full force and effect and/or appropriately taken;
|
(b) |
Earnings: ensure and procure that, unless and until directed by the Lender
otherwise (i) all the Earnings of the Vessel shall be paid to the Operating Account and (ii) the persons from whom the Earnings are from time to time due are irrevocably instructed to pay them to the Operating Account or to such account in
the name of the Borrower as shall be from time to time determined by the Lender in accordance with the provisions of this Agreement and/or the relevant Security Documents;
|
(c) |
Taxes: pay all Taxes, assessments and other governmental charges when the
same fall due, except to the extent that the same are being contested in good faith by appropriate proceedings and adequate reserves have been set aside for their payment if such proceedings fail; and
|
(d) |
Additional Documents: from time to time at the request of the Lender execute
and deliver to the Lender or procure the execution and delivery to the Lender of all such documents as shall be deemed necessary at the reasonable discretion of the Lender for giving full effect to this Agreement, and for perfecting,
protecting the value of or enforcing any rights or securities granted to the Lender under any one or more of this Agreement, the other Finance Documents and any other documents executed pursuant hereto or thereto and in case that any
conditions precedent (with the Lender's consent) have not been fulfilled prior to the relevant Drawdown Date, such conditions shall be complied with within ten (10) Banking Days after the Lender's written request (unless the Lender agrees
otherwise in writing) and failure to comply with this covenant shall be an Event of Default.
|
8.5 |
Security cover - Valuation of the Vessel
|
(a) |
Security shortfall - Additional Security: If at any time during the Security
Period, the Security Value shall be less than the Security Requirement, the Lender may give notice to the Borrower requiring that such deficiency be remedied and then the Borrower shall (unless the sole cause of such deficiency is the Total
Loss of the Vessel and the Borrower is in full compliance with his obligations in relation to such Total Loss) either;
|
(i) |
prepay (in accordance with Clause 4.2 (Voluntary prepayment) (but without regard to the
requirement for five (5) days' notice) within a period of forty five (45) days of the date of receipt by the Borrower of the Lender's said notice (the "Prepayment Date") such sum in Dollars as will result in the Security Requirement after such prepayment (taking into account any other repayment of the Loan made or to be made between the date of the notice
and the date of such prepayment) being at least equal to the Security Value; or
|
(ii) |
on or before the Prepayment Date constitute to the satisfaction of the Lender such additional security for the Loan as shall be acceptable to the Lender having a net
realisable value for security purposes (as determined by the Lender in its absolute discretion) at the date upon which such additional security shall be constituted which, when added to the Security Value, shall not be less than the Security
Requirement as at such date. Such additional security shall be constituted by:
|
a) |
additional pledged cash deposits in favor of the Lender in an amount equal to such shortfall with the Lender and in an account and manner to be determined by the
Lender; and/or
|
b) |
any other security acceptable to the Lender at its absolute discretion to be provided in a manner determined by the Lender.
|
(b) |
Valuation of Vessel: The Vessel shall, for the purposes of this Clause 8.5,
be valued in Dollars once a year or, if an Event of Default has occurred and is continuing at any other time that the Lender shall reasonably require by two Approved Shipbrokers, one appointed by the Lender and one appointed by the Borrower
(such valuations to be addressed to the Lender and to be made without, unless required by the Lender, physical inspection, and on the basis of a sale for prompt delivery for cash at arm's length on normal commercial terms as between a willing
buyer and a willing seller, without taking into account the benefit of any charterparty or other engagement concerning the Vessel. The Lender and the Borrower agree to accept the average of such valuations made by the Approved Shipbrokers
appointed as aforesaid as conclusive evidence of the Market Value of the Vessel at the date of such valuations and that the average of such valuations shall constitute the Market Value of the Vessel for the purposes of this Clause 8.5.
|
(c) |
Information: The Borrower undertakes to the Lender to supply to the Lender
and to any such Approved Shipbrokers such information concerning the Vessel and its condition as such Approved Shipbrokers may reasonably require for the purpose of making any such valuation.
|
(d) |
Costs: All costs in connection with:
|
(i) |
the Lender obtaining any valuation of the Vessel referred to in Clause 8.5(b) (Valuation of Vessel); and
|
(ii) |
any valuation of any additional security for the purposes of ascertaining the Security Value at any time or necessitated by the Borrower electing to constitute
additional security pursuant to Clause 8.5(a)(ii): and
|
(iii) |
all legal and other expenses incurred by the Lender in connection with any matter arising out of this Clause 8.5
|
(e) |
Valuation of additional security: For the purpose of this Clause 8.5, the
market value of any additional security provided or to be provided to the Lender shall be determined by the Lender in its absolute discretion without any necessity for the Lender assigning any reason thereto and if such security consists of a
vessel shall be that shown by a valuation complying with the requirements of Clause 8.5(b) (Valuation of Vessel) (whereas the costs shall be borne by the
Borrower in accordance with Clause 8.5(d) (Costs)) or if the additional security is in the form of a cash deposit full credit shall be given for such cash
deposit on a Dollar for Dollar basis.
|
(f) |
Documents and evidence: In connection with any additional security provided
in accordance with this Clause 8.5, the Lender shall be entitled to receive such evidence and documents of the kind referred to in Schedule 2 as may in the Lender's opinion be appropriate and such favourable legal opinions as the Lender shall
in its discretion require.
|
8.6 |
Sanctions
|
(a) |
Without Limiting Clause 8.7 (Compliance with laws etc.), the Borrower hereby undertakes with the Lender that, from the date of this Agreement and until the date that the Outstanding Indebtedness is paid in full, shall ensure that:
|
(i) |
the Vessel will not be used by or for the benefit of a Sanctions Restricted Person contrary to Sanctions;
|
(ii) |
the Vessel will not be used in trading in any Sanctions Restricted Jurisdiction or in any manner contrary to Sanctions; and
|
(iii) |
the Vessel will not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the
|
(b) |
The Borrower shall:
|
(i) |
not directly or to its knowledge (after reasonable enquiry) indirectly use or permit to be used all or any part of the proceeds of the Loan, or lend, contribute or
otherwise make available such proceeds directly or to its knowledge (after reasonable enquiry) indirectly, to any person or entity (i) to finance or facilitate any activity or transaction of or with any Sanctions Restricted Person contrary to
Sanctions or in any Sanctions Restricted Country, or (ii) in any other manner that would result in a violation of any Sanctions by any Party;
|
(ii) |
shall not fund all or part of any payment under the Loan out of proceeds derived directly or to its knowledge (after reasonable enquiry) indirectly from any activity or
transaction with a Sanctions Restricted Person contrary to Sanctions or in a Sanctions Restricted Jurisdiction or which would otherwise cause any party to be in breach of any Sanctions; and
|
(iii) |
procure that no proceeds to its knowledge (after reasonable enquiry) from activities or business with a Sanctions Restricted Person contrary to Sanctions or in a
Sanctions Restricted Jurisdiction are credited to the Operating Account.
|
8.7 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations by the relevant Security Party:
|
(i) |
relating to its respective business generally; and
|
(ii) |
relating to the Vessel, its ownership, employment, operation, management and registration including, but not limited to, the ISM Code, the ISPS Code, all Environmental
Laws and the laws of the Flag State; and
|
(iii) |
all Sanctions;
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Approvals; and
|
(c) |
without limiting paragraph (a) above, not employ the Vessel nor allow its employment, operation or management in any manner contrary to any law or regulation including,
but not limited to, the ISM Code, the ISPS Code and all Environmental Laws which has or is likely to have a Material Adverse Effect on the business, position, profitability, assets or the financial condition of any of the Security Parties and
Sanctions.
|
8.8 |
Know your customer and money laundering compliance
|
9.1 |
Events
|
(a) |
Non‑payment: any Security Party fails to pay any sum payable by it under any
of the Finance Documents at the time, in the currency and in the manner stipulated in the Finance Documents (and so that, for this purpose, sums payable on demand shall be treated as having been paid at the stipulated time if paid within five
(5) Banking Days of demand and other sums due shall be treated as having been paid at the stipulated time if paid within three (3) Banking Days of its falling due); or
|
(b) |
Breach of Insurance and certain other obligations: the Borrower fails to
obtain and/or maintain the Insurances (as defined in, and in accordance with the requirements of, the Finance Documents) or if any insurer in respect of such Insurances cancels the Insurances or disclaims liability by reason, in either case,
of mis‑statement in any proposal for the Insurances or for any other failure or default on the part of the Borrower or the Borrower commits any breach of or omits to observe any of the obligations or undertakings expressed to be assumed by it
under Clause 8 (Covenants); or
|
(c) |
Breach of other obligations: any Security Party commits any breach of or
omits to observe any of its obligations or undertakings expressed to be assumed by it under any of the Finance Documents (other than those referred to in Clauses 9.1(a) (Non‑payment) and 9.1(b) (Breach of Insurance and certain other obligations)) and, in respect of any such breach or omission which in the
opinion of the Lender is capable of remedy, such action as the Lender may require shall not have been taken within fifteen (15) Banking Days of the Lender notifying in writing the relevant Security Party of such default and of such required
action; or
|
(d) |
Misrepresentation: any representation or warranty made or deemed to be made
or repeated by or in respect of any Security Party in or pursuant to any of the Finance Documents or in any notice, certificate or statement referred to in or delivered under any of the Finance Documents is or proves to have been incorrect or
misleading in any material respect; or
|
(e) |
Cross‑default:
|
(i) |
any Financial Indebtedness of the Borrower relating to an amount exceeding Six hundred thousand Dollars ($600,000) or any Financial
Indebtedness of the Corporate Guarantor relating to an amount exceeding One million two hundred thousand Dollars ($1,200,000) is not paid when
|
(ii) |
any Financial Indebtedness of the Borrower relating to an amount exceeding Six hundred thousand Dollars ($600,000) or any Financial
Indebtedness of the Corporate Guarantor relating to an amount exceeding One million two hundred thousand Dollars ($1,200,000) (whether by declaration or automatically in accordance with the relevant agreement or instrument constituting the same) becomes due and payable prior to the date when
it would otherwise have become due (unless as a result of the exercise by the Borrower or the Corporate Guarantor (as the case may be) of a voluntary right
of prepayment), or
|
(iii) |
any facility or commitment available to the Borrower relating to Financial Indebtedness relating to an amount exceeding Six hundred thousand Dollars ($600,000) or any facility or commitment available to the Corporate
Guarantor relating to Financial Indebtedness relating to an amount exceeding One million two hundred thousand Dollars ($1,200,000) is withdrawn, suspended or cancelled by reason of any default (however described) of the person concerned unless the Borrower or the Corporate Guarantor (as the
case may be) shall have satisfied the Lender that such withdrawal, suspension or cancellation will not affect or prejudice in any way the Borrower's or the Corporate Guarantor's (as the case may be) ability to pay its debts as they fall due,
or
|
(iv) |
any guarantee given by the Borrower or the Corporate Guarantor in respect of
Financial Indebtedness relating, with respect to the Borrower to an amount exceeding Six hundred thousand Dollars ($600,000) and in respect of the Corporate Guarantor, to an amount exceeding One million two hundred thousand Dollars ($1,200,000) is not
honoured when due and called upon; or
|
(f) |
Legal process: any judgment or order made or commenced in good faith by a
person against any of the Borrower and the Corporate Guarantor relating with respect to the Borrower to an amount exceeding Six hundred thousand Dollars ($600,000) and in respect of the Corporate Guarantor, to an amount exceeding One million two hundred thousand Dollars ($1,200,000), is not stayed or complied with within thirty (30) Banking Days or a good faith creditor attaches or takes possession of, or a distress, execution, sequestration or other bonafide process relating with respect to the Borrower to an amount exceeding Six hundred thousand Dollars ($600,000) and in respect of the Corporate Guarantor, to an amount exceeding One million two hundred thousand Dollars ($1,200,000), is
levied or enforced upon or sued out against, any of the undertakings, assets, rights or revenues of any of the Borrower and the Corporate Guarantor
and is not discharged within thirty (30) Banking Days; or
|
(g) |
Insolvency: any Security Party becomes insolvent or stops or suspends making
payments (whether of principal or interest) with respect to all or any class of its debts or announces an intention to do so; or
|
(h) |
Reduction or loss of capital: a meeting is convened by the Borrower for the
purpose of passing any resolution to purchase, reduce or redeem any of its share capital; or
|
(i) |
Winding up: any petition is presented or other step is taken for the purpose
of winding up any Security Party or an order is made or resolution passed for the
|
(j) |
Administration: any bonafide petition is presented or other step is taken for the purpose of the appointment of an administrator of any Security Party or an administration order is made in relation to any
Security Party; or
|
(k) |
Appointment of receivers and managers: any administrative or other receiver
is appointed of any Security Party or any material (in the Lender's opinion) part of its assets and/or undertaking or any other steps are taken to enforce any Security Interest over all or any material (in the Lender's opinion) part of the
assets of any Security Party; or
|
(l) |
Compositions: any steps are taken, or negotiations commenced, by any Security
Party or by any of its creditors with a view to the general readjustment or rescheduling of all or a material (in the Lender's opinion) part of its indebtedness or to proposing any kind of composition, compromise or arrangement involving such
company and any of its creditors provided, however, that if the Borrower is able to provide such evidence as is satisfactory in all respects to the
Lender that such rescheduling will not relate to any payment default or anticipated default the same shall not constitute an Event of Default; or
|
(m) |
Analogous proceedings: there occurs, in relation to any Security Party, in
any country or territory in which any of them carries on business or to the jurisdiction of whose courts any part of their assets is subject, any event which in that country or territory corresponds with, or have an effect equivalent or
similar to, any of those mentioned in Clauses 9.1(f) (Legal process) to (l) (Compositions) (inclusive) or any Security Party otherwise becomes subject, in any such country or territory, to the operation of any law relating to insolvency, bankruptcy or liquidation; or
|
(n) |
Cessation of business: any Security Party suspends or ceases to carry on its
business; or
|
(o) |
Seizure: all or a material part of the undertaking, assets, rights or
revenues of, or shares or other ownership interests in, any Security Party are seized, nationalised, expropriated or compulsorily acquired by or under the authority of any government; or
|
(p) |
Invalidity: any of the Finance Documents shall at any time and for any reason
become invalid or unenforceable or otherwise cease to remain in full force and effect, or if the validity or enforceability of any of the Finance Documents shall at any time and for any reason be contested by any Security Party which is a
party thereto, or if any such Security Party shall deny that it has any, or any further, liability thereunder; or
|
(q) |
Unlawfulness: it becomes impossible or unlawful at any time for any Security
Party, to fulfil any of the covenants and obligations expressed to be assumed by it in any of the Finance Documents or for the Lender to exercise the rights or any of them vested in it under any of the Finance Documents or otherwise; or
|
(r) |
Repudiation: any Security Party repudiates any of the Finance Documents or
does or causes or permits to be done any act or thing evidencing an intention to repudiate any of the Finance Documents; or
|
(s) |
Security Interests enforceable: any Security Interest (other than Permitted
Security
|
(t) |
Material Adverse Change: there occurs, in the reasonable opinion of the
Lender, a Material Adverse Change in the financial condition of any of the Borrower and the Corporate Guarantor as described by the
Borrower or any other Security Party to the Lender in the negotiation of this Agreement, which materially impairs the ability of the above Security Parties (or either of them) to perform their respective obligations under this Agreement and
the Finance Documents to which is or is to be a party; or
|
(u) |
Arrest: the Vessel is arrested, confiscated, seized, taken in execution, impounded, forfeited, detained
in exercise or purported exercise of any possessory lien or other claim or otherwise taken from the possession of
the Owner thereof (otherwise that due to an event falling within the definition of Total Loss) and the Owner shall
fail to procure the release of the Vessel within a period of forty (40) Banking Days thereafter; or
|
(v) |
Registration: the registration of the Vessel under the laws and flag of the
Flag State is cancelled or terminated without the prior written consent of the Lender or, if the Vessel is only provisionally registered on the relevant Drawdown Date and is not permanently registered under the laws and flag of the Flag State
at least thirty (30) days prior to the deadline for completing such permanent registration; or
|
(w) |
Unrest: the Flag State of the Vessel becomes involved in hostilities or civil
war or there is a seizure of power in such Flag State by unconstitutional means if, in any such case, (a) such event could in the opinion of the Lender reasonably be expected to have a Material Adverse Effect on the security constituted by
any of the Finance Documents and (b) the Borrower has failed within thirty (30) days from receiving notice from the Lender to this effect to (i) delete the Vessel from its Flag State and (ii) re-register the Vessel under another Flag State
approved by the Lender in its sole discretion through a relevant Registry, in each case, at the Borrowers' cost and expense; or
|
(x) |
Approved Manager: there occurs, in relation to an Approved Manager any of the
events mentioned in Clauses 9.1(e) (Legal
process) to (m) (Cessation of business) (inclusive)
and the Borrower fails to appoint a new Approved Manager of the Vessel acceptable to the Lender such acceptance not to be unreasonably withheld within ten (10) days of becoming aware of the occurrence of such event.
|
(x) |
Environment: the Approved Commercial Manager fails to comply with any Environmental Law or any Environmental Approval or the Vessel is involved in any incident which gives rise or which may give rise to
any Environmental Claim, if in any such case, such non-compliance or incident or the consequences thereof could (in the reasonable opinion of the Lender) be expected to have a Material Adverse Effect on the business assets, operations,
property or financial condition of the Borrower or any other Security Party or on the security created by any of the Finance Documents; or
|
(y) |
P&I: the Borrower fails or omits to comply with any requirements of the
protection and indemnity association or other insurer with which the Vessel is entered for insurance or insured against protection and indemnity risks (including oil pollution risks) to the effect that any cover in relation to the Vessel
(including without
|
(z) |
Beneficial Ownership: there has been any change of control directly or
indirectly in the ownership, beneficial ownership, or management of the Borrower or of the Corporate Guarantor or any share therein or of the Vessel, as a result of which any of the Borrower and the Corporate Guarantor ceases to remain, in
the case of the Borrower, at least 100% and in the case of the Corporate Guarantor at least 20% in the ultimate legal and beneficial ownership of the Beneficial Shareholders or the Vessel ceases to remain 100% owned by the Borrower; or
|
(aa) |
Total Loss: the Vessel becomes a Total Loss and the Borrower does not within one hundred and eighty (180) days from the respective Total Loss Date prepay the Loan and all other amounts outstanding hereunder or provides the Lender with
a written statement from the insurers of the Vessel (via the respective broker) confirming that the event is covered in full under the relevant insurance policies and that the insurers will pay an amount equivalent to the insured value of
the Vessel to the Lender; or
|
(bb) |
Change of Management: the Vessel ceases to be managed by the Approved
Commercial Manager or, as the case may be, the Approved Technical Manager (for any reason other than the reason of a Total Loss or sale of
the Vessel) without the approval of the Lender, which shall not be unreasonably withheld, and the Borrower fails to appoint another Approved Commercial Manager or, as the case may be, the Approved Technical Manager prior to the termination of the mandate with the previous relevant Approved Manager; or
|
(cc) |
Deviation of Earnings: any Earnings of the Vessel are not paid to the
Operating Account for any reason whatsoever (other than with the Lender's prior written consent); or
|
(dd) |
ISM Code and ISPS Code: (without prejudice to the generality of sub-Clause
9.1(c) (Breach of other obligations)) for any reason whatsoever the provisions of Clause 8.1(o) (Compliance with ISM Code) and (p) (Compliance with ISPS Code) are not complied with and the Vessel ceases to comply with the ISM Code or, as the
case may be, the ISPS Code; or
|
(ee) |
Sanctions: (without prejudice to the generality of sub-Clause 9.1(c) (Breach of other obligations))
for any reason whatsoever the provisions of Clause 8.6 (Sanctions) and Clause 8.7 (Compliance with laws etc.) are not complied with.
|
9.2 |
Consequences of Default – Acceleration
|
(a) |
by notice to the Borrower declare that the obligation of the Lender to make the Commitment (or any part thereof) available shall be terminated, whereupon the Commitment
shall be reduced to zero forthwith; and/or
|
(b) |
by notice to the Borrower declare that the Loan and all interest accrued and all other sums payable under the Finance Documents have become due and payable, whereupon
the same shall, immediately or in accordance with the terms of such
|
(c) |
put into force and exercise all or any of the rights, powers and remedies possessed by the Lender under this Agreement and/or under any other Finance Document and/or as
mortgagee of the Vessel, mortgagee, chargee or assignee or as the beneficiary of any other property right or any other security (as the case may be) of the assets charged or assigned to it under the Finance Documents or otherwise (whether at
law, by virtue of any of the Finance Documents or otherwise).
|
9.3 |
Multiple notices; action without notice
|
9.4 |
Demand basis
|
9.5 |
Proof of Default
|
9.6 |
Exclusion of Bank's liability
|
(a) |
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a
right or to enforce such a Security Interest; or
|
(b) |
as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security
Interest or for any reduction (however caused) in the value of such an asset,
|
10.1 |
Indemnity
|
(a) |
any default in payment by any of the Security Parties of any sum under any of the Finance Documents when due;
|
(b) |
the occurrence of any Event of Default which is continuing;
|
(c) |
any prepayment of the Loan or part thereof being made under Clauses 3.6(g) (Prepayment; termination of Commitment), 4.2 (Voluntary
Prepayment) and 4.3 (Compulsory
Prepayment in case of Total Loss or sale of the Vessel), 8.5(a) (Security shortfall) or 12 or any other repayment of the Loan or part thereof being made otherwise than on an Interest Payment Date relating to the part of the Loan prepaid or repaid; or
|
(d) |
the Commitment not being advanced for any reason (excluding any default by the Lender and any reason mentioned in Clause 12.1 (Unlawfulness)) after the Drawdown Notice has been given, including, in any such case, but not limited to, any loss or expense sustained or incurred in maintaining or funding the Loan or any
part thereof or in liquidating or re-employing deposits from third parties acquired to effect or maintain the Loan or any part thereof.
|
10.2 |
Expenses
|
(a) |
Initial and Amendment expenses: all expenses (including reasonable legal,
printing and out-of-pocket expenses) reasonably incurred by the Lender in connection with the negotiation, preparation and execution of this Agreement and the other Finance Documents and of any amendment or extension of or the granting of any
waiver or consent under this Agreement and/or any of the Finance Documents and/or in connection with any proposal by the Borrower to constitute additional security pursuant to sub-Clause 8.5(a) (Security shortfall), whether any such security shall in fact be constituted or not;
|
(b) |
Enforcement expenses: all expenses (including reasonable legal and
out-of-pocket expenses) incurred by the Lender in contemplation of, or otherwise in connection with, the enforcement of, or preservation of any rights under, this Agreement and/or any of the other Finance Documents, or otherwise in respect of
the moneys owing under this Agreement and/or any of the other Finance Documents or the contemplation or preparation of the above, whether they have been effected or not;
|
(c) |
Legal costs: the legal costs of the Lender's appointed lawyers, in respect
of the preparation of this Agreement and the other Finance Documents as well as the legal costs of the foreign lawyers (if these are available) in respect of the registration of the Finance Documents or any search or opinion given to the
Lender in respect of the Security Parties or the Vessel or the Finance Documents. The said legal costs shall be due and payable on the Drawdown Date; and
|
(d) |
Other expenses: any and all other Expenses.
|
10.3 |
Stamp duty
|
10.4 |
Environmental Indemnity
|
10.5 |
Currency indemnity
|
10.6 |
Maintenance of the Indemnities
|
10.7 |
MII and MAPI costs
|
10.8 |
Central Bank or European Central Bank reserve requirements indemnity
|
10.9 |
Communications Indemnity
|
(a) |
Express authority is hereby given by the Borrower to the Lender to accept all tested or untested communications given by facsimile, electronic mail or otherwise,
regarding any or all of the notices (as defined in Clause 16.4 (Meaning of "notice") under this Agreement, subject to any restrictions imposed by the Lender
relating to such notices including, without limitation (if so required by the Lender), the obligation to confirm such notices by letter.
|
(b) |
The Borrower shall recognise any and all of the said notices as legal, valid and binding, when these notices come from the fax number or electronic mail address
mentioned in Clause 16.1 (Notices) or any other fax
or electronic mail address usually used by it or the Approved Commercial Manager and are duly signed or in case of emails are duly sent by the person appearing to be sending such notice.
|
(c) |
The Borrower hereby assumes full responsibility for the execution of the said notices, and promises and recognises that the Lender shall not be held responsible for any
loss, liability or expense that may result from such notices. It is hereby undertaken by the Borrower to indemnify in full the Lender from and against all actions, proceedings, damages, costs, claims, demands, expenses and any and all direct
and/or indirect losses which the Lender may suffer, incur or sustain by reason of the Lender following such notices.
|
(d) |
With regard to notices (as defined in Clause 16.4 (Meaning of "notice") issued by
electronic and/or mechanical processes (e.g. by facsimile or electronic mail) the following are applicable:
|
(i) |
The Borrower hereby acknowledges and accepts the risks associated with the use of unsecured electronic mail communication including, without limitation, risk of delay,
loss of data, confidentiality breach, forgery, falsification and malicious software. The Lender shall not be liable in any way for any loss or damage or any other disadvantage suffered by the Borrower resulting from such unsecured electronic
mail communication.
|
(ii) |
If the Borrower or any other Security Party wishes to cease all electronic communication, it shall give written notice to the Lender accordingly after receipt of which
notice the Parties shall cease all electronic communication.
|
(iii) |
For as long as electronic communication is an accepted form of communication, the Parties shall:
|
a) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
b) |
notify each other of any change to their respective addresses or any other such information supplied to them; and
|
(e) |
in case electronic communication is sent to recipients with the domain < pyxistankers.com>, the parties shall without undue delay inform each other if there are changes to the said domain or if electronic
communication shall thereafter be sent to individual electronic mail addresses.
|
(f) |
The risks of misunderstandings and errors resulting from notices (as defined in Clause 16.4 (Meaning of "notice") being given as mentioned above, are for the Borrower and the Lender will be indemnified in full pursuant to this Clause save in case of Lender's wilful misconduct.
|
(g) |
The Lender shall have the right to ask the Borrower to furnish any information the Lender may require to establish the authority of any person purporting to act on
behalf of the Borrower for these notices, but it is expressly agreed that there is no obligation for the Lender to do so. The Lender shall be fully protected in, and the Lender shall incur no liability to the Borrower for acting upon the
said notices, which were believed by the Lender in good faith to have been given by the Borrower or by any of its authorised representative(s).
|
(h) |
It is undertaken by the Borrower to use its best endeavours to safeguard the function and the security of the electronic and mechanical appliance(s) such as fax(es),
electronic mail(s) etc. The Borrower shall hold the Lender harmless and indemnified from all claims, losses, damages and expenses which the Lender may incur by reason of the failure of the Borrower to comply with the obligations under this
Clause.
|
10.10 |
Fees
|
(a) |
Arrangement fee: The Borrower shall pay to the Lender an arrangement fee (the
|
(b) |
Commitment commission: The Borrower shall pay to the Lender commitment commission (the "Commitment Commission") at the rate of one per cent (1%) per annum on the daily undrawn and uncancelled amount of the Commitment, computed from the date of acceptance of
the Commitment Letter (18th March, 2021) until the earlier of (a) the last day of the Availability Period (b) the Drawdown Date and (c) the date of cancellation of the Commitment by the Borrower (the "Commitment Commission Period") payable on the last day of the Commitment Commission Period.
|
(c) |
Non-refundable: The Arrangement Fee and the Commitment Commission shall be non-refundable.
|
10.11 |
FATCA Deduction
|
(a) |
Each party to a Finance Document may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and
shall not 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 to a Finance Document 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 a Finance Document to whom it is making the payment.
|
10.12 |
FATCA status
|
(a) |
Subject to Clause 10.12(c) below, each party shall, within ten Banking Days of a reasonable request by another party:
|
(i) |
confirm to that other party whether it is:
|
(ii) |
supply to that other party such forms, documentation and other information relating to its status under FATCA (including its applicable passthru percentage or other
information required under the Treasury Regulations or other official guidance including intergovernmental agreements) as that other party reasonably requests for the purposes of that other party's compliance with FATCA.
|
(b) |
If a party confirms to another party pursuant to Clause 10.12(a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has
ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
|
(c) |
Clause 10.12(a)(i) above shall not oblige the Lender to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a party fails to confirm its status or to supply forms, documentation or other
information requested in accordance with Clause 10.12(a) above (including, for the avoidance of doubt, where Clause 10.12(c) above applies), then:
|
(i) |
if that party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such party shall be treated for the purposes of the Finance Documents as if it
is not a FATCA Exempt Party; and
|
(ii) |
if that party failed to confirm its applicable passthru percentage then such party shall be
treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable passthru percentage is 100%,
|
11.1 |
Securities
|
11.2 |
Maintenance of Securities
|
11.3 |
Application of funds
|
(a) |
Order of application: Except as any Finance Document may otherwise provide,
any sums which are received or recovered by the Lender under or pursuant to or by virtue of any of the Finance Documents and expressed to
be applicable in accordance with this Clause 11.3 shall be applied by the Lender in the following manner:
|
(i) |
FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents in the following order and proportions:
|
a) |
Firstly, in or towards satisfaction of all amounts then due and payable to
the Lender under the Finance Documents other than those amounts referred to at paragraphs b) and c) below (including, but without limitation, all amounts payable by the Borrower under Clauses 11 (Indemnities- Expenses-Fees), 5.1 (Payments – No set-off or counterclaims) or 5.3 (Gross Up) of this Agreement or by the Borrower or any
Security Party under any corresponding or similar provision in any other Finance Document);
|
b) |
Secondly, in or towards payment of any default interest;
|
c) |
Thirdly, in or towards payment of any arrears of interest (other than default
interest) due in respect of the Loan or any part thereof; and
|
d) |
Fourthly, in or towards repayment of the Loan (whether the same is due and
payable or not);
|
(ii) |
SECOND: the surplus (if any) after the full and complete payment of the Outstanding Indebtedness shall be paid to the Borrower or to any other person entitled to it.
|
(b) |
Notice of variation of order of application: The Lender may, by notice to the
Borrower and the Security Parties, provide, at its sole discretion, for a different order of application from that set out in Clause 11.3(a) (Order of application) either
as regards a specified sum or sums or as regards sums in a specified category or categories, without affecting the obligations of the Borrower to the Lender.
|
(c) |
Effect of variation notice: The Lender may give notices under Clause 11.3(b)
(Notice of variation of order of
application) from time to time; and such a notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Banking
Day before the date on which the notice is served.
|
(d) |
Insufficient balance: For the avoidance of doubt, in the event that such
balance is insufficient to pay in full the whole of the Outstanding Indebtedness, the Lender shall be entitled to collect the shortfall from the Borrower or any other person liable therefor.
|
(e) |
Appropriation rights overridden: This Clause 11.3 and any notice which the
Lender gives under Clause 11.3(b) (Notice
of variation of order of application) shall override any right of appropriation possessed, and any appropriation
made, by the Borrower or any other Security Party.
|
11.4 |
Set off
|
(a) |
Application of credit balances: Express authority is hereby given by the
Borrower to the Lender without prejudice to any of the rights of the Lender at law, contractually or otherwise, at any time after an Event of Default has occurred and is continuing, and without prior notice to the Borrower:
|
(i) |
to apply any credit balance standing upon any account of the Borrower with any branch of the Lender (including, without limitation, the Operating Account and in
whatever currency in or towards satisfaction of any sum due to the Lender from the Borrower under this Agreement, the General Assignment and/or any of the other Finance Documents;
|
(ii) |
in the name of the Borrower and/or the Lender to do all such acts and execute all such documents as may be necessary or expedient to effect such application; and
|
(iii) |
to combine and/or consolidate all or any accounts in the name of the Borrower with the Lender; and
|
a) |
to break, or alter the maturity of, all or any part of a deposit of the Borrower;
|
b) |
to convert or translate all or any part of a deposit or other credit balance into Dollars; and
|
c) |
to enter into any other transaction or make any entry with regard to the credit balance which the Lender considers appropriate.
|
(b) |
Existing rights unaffected: The Lender shall not be obliged to exercise any
right given by this Clause; and those rights shall be without prejudice and in addition to any right of set-off, combination of accounts, charge, lien or other right or remedy to which the Lender is entitled (whether under the general law or
any document). For all or any of the above purposes authority is hereby given to the Lender to purchase with the moneys standing to the credit of any such account or accounts such other currencies as may be necessary to effect such
application. The Lender shall notify the Borrower forthwith upon the exercise of any right of set‑off giving full details in relation thereto.
|
12.1 |
Unlawfulness
|
12.2 |
Increased Cost
|
(a) |
increase the cost to, or impose an additional cost on, the Lender or its holding company in making or keeping the Commitment available or maintaining or funding all or
part of the Loan; and/or
|
(b) |
subject the Lender to Taxes or change the basis of Taxation of the Lender with respect to any payment under any of the Finance Documents (other than Taxes or Taxation
on the overall net income, profits or gains of the Lender imposed in the jurisdiction in which its principal or lending office under this Agreement is located); and/or
|
(c) |
reduce the amount payable or the effective return to the Lender under any of the Finance Documents; and/or
|
(d) |
reduce the Lender's or its holding company rate of return on its overall capital by reason of a change in the manner in which it is required to allocate capital
resources to the Lender's obligations under any of the Finance Document; and/or
|
(e) |
require the Lender or its holding company to make a payment or forgo a return on or calculated by references to any amount received or receivable by it under any of the
Finance Documents is required; and/or
|
(f) |
require the Lender or its holding company to incur or sustain a loss (including a loss of future potential profits) by reason of being obliged to deduct all or part of
the Commitment or the Loan from its capital for regulatory purposes,
|
(i) |
the Lender shall notify the Borrower in writing of such event promptly upon its becoming aware of the same; and
|
(ii) |
the Borrower shall on demand pay to the Lender the amount which the Lender specifies (in a certificate and supporting documents setting forth and evidencing the basis
of the computation of such amount but not including any matters which the Lender or its holding company regards as confidential) is required to compensate the Lender and/or (as the case may be) its holding company for such liability to Taxes,
cost, reduction, payment, foregone return or loss whatsoever.
|
12.3 |
Claim for increased cost
|
12.4 |
Option to prepay
|
12.5 |
Exception
|
12.9 |
Contractual recognition of bail-in
|
(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.
|
13.1 |
General
|
(a) |
on or before the Drawdown Date open the Operating Account; and
|
(b) |
procure that all moneys payable to the Borrower in respect of the Earnings of the Vessel shall, unless and until the Lender directs to the contrary pursuant to the
General Assignment, be paid to the Operating Account, free from Security Interests and rights of set off other than those created by or under the Finance Documents and, shall be held there on trust for the Lender and shall be applied as
provided in Clause 13.2 (Application
of Earnings),
|
13.2 |
Application of Earnings
|
(a) |
firstly: in payment of any arrears of interest and principal of the Loan due
and payable hereunder and any and all other sums whatsoever which at each relevant time are due and payable to the Lender hereunder (such sums to be paid in such order as the Lender may in its sole discretion elect);
|
(b) |
secondly: in payment of the Operating Expenses of the Vessel; and
|
(c) |
thirdly: any credit balance shall be available to the Borrower to be used for any purpose not inconsistent with the Borrower's other obligations under
this Agreement.
|
13.3 |
Interest
|
13.4 |
Drawings from Operating Account
|
13.5 |
Sufficient monies
|
13.6 |
Obligations unaffected
|
(a) |
the liability and absolute obligation of the Borrower to repay the Loan and pay interest thereon on the due dates as provided in Clause 3 (Interest) and Clause 4 (Repayment-Prepayment) nor shall they constitute or be construed as
constituting a manner of postponement thereof; or
|
(b) |
any other liability or obligation of the Borrower or any other Security Party under any Finance Document.
|
13.7 |
Relocation of Operating Account
|
13.8 |
Authorisation
|
13.9 |
Set-off
|
13.10 |
No Security Interests
|
13.11 |
Operation of Operating Account
|
13.12 |
Application after occurrence of Event of Default
|
13.13 |
Release
|
14.1 |
Binding Effect
|
14.2 |
No Assignment by the Borrower and other Security Parties
|
14.3 |
Assignment by the Lender
|
(a) |
another branch, Subsidiary or Affiliate of, or company controlled by, the Lender;
|
(b) |
another first class international bank or financial institution, insurer, social security fund, pension fund, capital investment company, financial intermediary or
special purpose vehicle associated to any of them or any other person; and
|
(c) |
a trust corporation, fund or other person which regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other
financial assets of which are managed or serviced by the Lender
|
14.4 |
Participation
|
14.5 |
Cost
|
14.6 |
Documenting assignments and transfers
|
14.7 |
Disclosure of information
|
(a) |
in relation to any proceedings arising out of this Agreement or the other Finance Documents to the extent considered necessary by the Prospective Assignee to protect
its interest; or
|
(b) |
pursuant to a court order relating to discovery or otherwise; or
|
(c) |
pursuant to any law or regulation or to any fiscal, monetary, tax, governmental or other competent authority; or
|
(d) |
to its auditors, legal or other professional advisers.
|
14.8 |
Changes in constitution or reorganisation of the Lender
|
14.9 |
Securitisation
|
14.10 |
Lending Office
|
15.1 |
Time of essence
|
15.2 |
Cumulative Remedies
|
15.3 |
No implied waivers
|
15.4 |
Integration of Terms
|
15.5 |
No modification, waiver etc. unless in writing
|
15.6 |
Invalidity of Terms
|
15.7 |
Language and genuineness of documents
|
(a) |
Language: All certificates, instruments and other documents to be delivered
under or supplied in connection with this Agreement or any of the other Finance Documents shall be in the Greek or the English language (or such other language as the Lender shall agree) or shall be accompanied by a certified Greek
translation upon which the Lender shall be entitled to rely.
|
(b) |
Certification of documents: Any copies of documents delivered to the Lender
shall be duly certified as true, complete and accurate copies by appropriate authorities or legal counsel practising in Greece or otherwise as will be acceptable to the Lender at the sole discretion of the Lender.
|
(c) |
Certification of signature: Signatures on Board or shareholder resolutions,
Secretary's certificates and any other documents are, at the discretion of the Lender, to be verified for their genuineness by appropriate Consul or other competent authority.
|
15.8 |
Recourse to other security
|
15.9 |
Further assurances
|
15.10 |
Confidentiality
|
(a) |
Each of the parties hereto agrees and undertakes to keep confidential any documentation and any confidential information concerning the business, affairs, directors or
employees of the other which comes into its possession in connection with this Agreement and not to use any such documentation, information for any purpose other than for which it was provided.
|
(b) |
The Borrower acknowledges and accepts that the Lender may be required by law, regulation or regulatory requirement or any request of any central bank or any court
order, to disclose information and deliver documentation relating to the Borrower and the transactions and matters in relation to this Agreement and/or the other Finance Documents to governmental or regulatory agencies and authorities.
|
(c) |
The Borrower acknowledges and accepts that in case of occurrence of any of the Events of Default the Lender may disclose information and deliver documentation relating
to the Borrower and the transactions and matters in relation to this Agreement and/or the other Finance Documents to third parties to the extent that this is necessary for the enforcement or the contemplation of enforcement of the Lender's
rights or for any other purpose for which in the opinion of the Lender, such disclosure would be useful or appropriate for the interests of the Lender or otherwise and the Borrower expressly authorises any such disclosure and delivery.
|
(d) |
The Borrower acknowledges and accepts that the Lender may be prohibited from disclosing information to the Borrower by reason of law or duties of confidentiality owed
or to be owed to other persons.
|
15.11 |
Process of personal data
|
(a) |
Process of personal data: The Borrower hereby confirms that it has been
informed that its personal data and/or the personal data of its director(s), officer(s) and legal representative(s) (together the "personal data")
contained in this Agreement or the personal data that have been or will be lawfully received by the Lender in relation to this Agreement and the Security Documents will be included at the personal data database maintained by the Lender as
processing agent (Υπεύθυνη Επεξεργασίας) and will be processed by the Lender for the purpose of properly serving, supporting and monitoring their current business relationship.
|
(b) |
Process of personal data to Teiresias: The Borrower hereby expressly gives
its consent to the communication for process in the meaning of law 2472/97 by the Lender of its personal data contained in this Agreement, the Security Documents, in the Operating Account for onwards communication thereof to an inter-banking
database record called "Teiresias" kept and solely used by banks and financial institutions. The Borrower is entitled at any relevant
time throughout the Security Period to revoke its consent given hereunder by written notice addressed to the Lender and the Registrar of "Teiresias
A.E." at 2, Alamanas street, 15125 Maroussi,
|
(c) |
Duration of the process: The personal data process shall survive the termination of this Agreement for such period as it is required by the applicable law.
|
15.12 |
Process Agent for Greek Proceedings
|
16.1 |
Notices
|
(a) |
every such notice in the case of a letter shall be in writing delivered personally or be first-class prepaid letter, or shall be served through a process server or
subject to Clause 10.9 (Communications
Indemnity) by fax or electronic mail;
|
(b) |
be deemed to have been received, subject as otherwise provided in this Agreement or the relevant Finance Document, in the case of a letter, when delivered personally or
five (5) days after it has been put in to the post and, in the case of a facsimile transmission or electronic mail or other means of telecommunication in permanent written form, at the time of despatch (provided that if the date of despatch is not a business day in the country of the addressee or if the time of despatch is after the close of business in the country of the
addressee it shall be deemed to have been received at the opening of business on the next such business day); and
|
(c) |
be sent by letter, electronic mail or fax:
|
(i) |
if to be sent to any Security Party, to:
|
(ii) |
in the case of the Lender at:
|
16.2 |
Illegible notices
|
16.3 |
Valid notices
|
(a) |
the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any
significant loss or prejudice; or
|
(b) |
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing
particulars should have been.
|
16.4 |
Meaning of "notice"
|
17.1 |
Governing Law
|
17.2 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or any non-contractual obligations connected
|
(b) |
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary and waives any objections to the inconvenience of England as a forum.
|
(c) |
This Clause 17.2 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.
|
17.3 |
Process Agent for English Proceedings
|
(a) |
the Borrower hereby agrees and undertakes to maintain a Process Agent for English
Proceedings throughout the Security Period and hereby agrees that in the event that if any Process Agent for English Proceedings is unable for any
reason to act as agent for service of process, the Borrower must immediately (and in any event within fifteen (15) days of such event taking place) appoint another agent on terms acceptable to the Lender. Failing this, the Lender may appoint
for this purpose a substitute Process Agent for English Proceedings and the Lender is hereby irrevocably authorised to effect such appointment on Borrower's behalf.
The appointment of such Process Agent for English Proceedings shall be valid and binding from the date notice of such appointment is given by the Lender to
the Borrower in accordance with Clause 16.1 (Notices); and
|
(b) |
the Borrower hereby agrees that failure by a Process Agent for English Proceedings to notify the Borrower of the process will not invalidate the
proceedings concerned.
|
17.4 |
Proceedings in any other country
|
17.5 |
Third Party Rights
|
17.6 |
Meaning of "proceedings"
|
SIGNED by
|
)
|
|||
)
|
||||
for and on behalf of
|
)
|
|||
EIGHTHONE
CORP.,
|
)
|
|||
of the Marshall Islands,
|
)
|
/s/ Konstantinos Lytras | ||
in the presence of:
|
)
|
Attorney-in-fact
|
Witness:
|
/s/ Dimitrios P. Sioufas | ||
Name:
|
|||
Address:
|
13 Defteras Merarchias
|
||
Piraeus, Greece
|
|||
Occupation:
|
Attorney-at-Law
|
SIGNED by
|
)
|
|||
Mrs. Aikaterini Damianidou and
|
)
|
/s/ Aikaterini Damianidou | ||
)
|
Attorney-in-fact
|
|||
for and on behalf of
|
)
|
|||
ALPHA BANK S.A.,
|
)
|
/s/ Chrysanthi Papathanasopoulou | ||
in the presence of:
|
)
|
Attorney-in-fact
|
Witness:
|
/s/ Dimitrios P. Sioufas | ||
Name:
|
|||
Address:
|
13 Defteras Merarchias
|
||
Piraeus, Greece
|
|||
Occupation:
|
Attorney-at-Law
|
To:
|
ALPHA BANK S.A.
|
93 Akti Miaouli,
|
|
Piraeus, Greece
|
|
(the "Lender")
|
Re: US$17,000,000 Loan Agreement dated [●] March, 2021 made between (A) EIGHTHONE CORP. (the "Borrower") and (B) the Lender
(the "Loan Agreement").
|
1. |
We refer to the Loan Agreement and hereby give you notice that we wish to draw the Commitment as follows:
|
(a) |
Loan: the full amount of the Commitment in the amount of Seventeen million
Dollars ($17,000,000);
|
(b) |
Drawdown Date: [●]March, 2021;
|
(c) |
Duration of first Interest Period: duration of the first Interest Period in
respect of the Loan shall be [●] months; and
|
(d) |
Payment instructions: [The funds to be credited into the Operating Account for application for the purpose set out in Clause 1.1 (Amount and purpose) of the Loan Agreement].
|
2. |
We confirm, represent and warrant that:
|
(a) |
no event or circumstance has occurred and is continuing which constitutes a
Default;
|
(b) |
the representations and warranties contained in Clause 6 (Representations and warranties) of
the Loan Agreement and the representations and warranties contained in each of the other Finance Documents would remain true and not misleading if repeated
on the date of this Drawdown Notice with reference to the circumstances now existing;
|
(c) |
the borrowing to be effected by the drawing down of the Commitment will be within our corporate powers, has been validly authorised by appropriate corporate action and
will not cause any limit on our borrowings (whether imposed by statute, regulation, agreement or otherwise) to be exceeded; and
|
(d) |
to the best of our knowledge and belief there has been no Material Adverse Change in our financial position or in the consolidated financial position of ourselves and
the
|
3. |
This Drawdown Notice cannot be revoked without the prior consent of the Lender.
|
SIGNED by
|
)
|
|||
Mr. [ ]
|
)
|
|||
for and on behalf of
|
)
|
|||
the Borrower
|
)
|
|||
EIGHTHONE
CORP.,
|
)
|
|||
of the Marshall Islands,
|
)
|
|||
in the presence of:
|
)
|
Attorney-in-fact
|
Witness:
|
|||
Name:
|
|||
Address:
|
13 Defteras Merarchias
|
||
Piraeus, Greece
|
|||
Occupation:
|
Attorney-at-Law
|
To:
|
[P&I Club]
|
[●]
|
|
[●]
|
|
From:
|
EIGHTHONE CORP.
|
Trust Company Complex,
|
|
Ajeltake Road, Ajeltake Island,
|
|
This ‘20-F’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 4/12/21 | None on these Dates | ||
3/22/21 | ||||
For Period end: | 12/31/20 | |||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 4/17/24 Pyxis Tankers Inc. 20-F 12/31/23 91:32M M2 Compliance LLC/FA 4/12/23 Pyxis Tankers Inc. 20-F 12/31/22 79:11M M2 Compliance LLC/FA 4/01/22 Pyxis Tankers Inc. 20-F 12/31/21 77:11M M2 Compliance LLC/FA 4/14/21 Pyxis Tankers Inc. POS AM 4:63M M2 Compliance LLC/FA 4/14/21 Pyxis Tankers Inc. POS AM 3:63M M2 Compliance LLC/FA |