6-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 6-K

 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13a-16 OR 15d-16

OF THE SECURITIES EXCHANGE ACT OF 1934

Dated: December 15, 2021

Commission File No. 001-33311

 

 

NAVIOS MARITIME HOLDINGS INC.

 

 

Strathvale House, 90 N Church Street

P.O. Box 309, Grand Cayman,

KY1-1104 Cayman Islands

(Address of Principal Executive Offices)

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F:

Form 20-F  ☒            Form 40-F  ☐

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):

Yes  ☐            No  ☒

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):

Yes  ☐            No  ☒

 

 

 


NSM Loans

In December 2021, Navios Maritime Holdings Inc. (“Navios Holdings” or the “Company”) entered into amended and restated loan agreements with N Shipmanagement Acquisition Corp. and related companies (“NSM”) for an aggregate principal amount of $262.6 million.

NSM Loan I: In December 2021, Navios Holdings entered into an amended and restated loan agreement to the existing loan with NSM dated August 29, 2019 whereby NSM made available to the Company a secured term loan of up to $127.6 million (the “NSM Loan I”), in two tranches: (i) the first tranche of $48.6 million represents borrowings already made available and (ii) the second tranche of $79.1 million represents new borrowings to be made available in exchange of the release by NSM of certain existing collateral. The NSM Loan I is repayable in quarterly installments of $5.0 million with the first installment falling due in the third quarter of 2023. The NSM Loan I has a four-year term and bears interest at a rate of (i) 18% per annum until the Company’s 11.25% Senior Secured Notes (the “2022 Senior Secured Notes”) are repaid and 16.5% per annum thereafter when paid in the form of Convertible Debenture (as defined below) for the first 18 months (“PIK Interest”) and (ii) 13.5% per annum when paid in the form of cash. The NSM Loan I will be paid in PIK Interest for the first 18 months, due also in optional prepayment during that period and thereafter in either cash or PIK Interest at the election of the Borrower.

NSM Loan II: In December 2021, Navios Holdings entered into an amended and restated loan agreement to the existing $115.0 million NSM loan dated June 29, 2021 whereby NSM made available to the Company a secured term loan of up to $135.0 million (the “NSM Loan II”) in two tranches (i) the first tranche of $64.1 million represents outstanding borrowings already made available and (ii) the second tranche of $70.9 million represents new borrowings to be made available, in exchange of the release by NSM of certain existing collateral. The NSM Loan II is repayable in quarterly installments of $5.0 million with the first installment falling due in the third quarter of 2023. The NSM Loan II has a four year term and bears interest at a rate of (i) 18% per annum until the 2022 Senior Secured Notes are repaid and 16.5% per annum thereafter when paid in PIK Interest and (ii) 13.5% per annum when paid in the form of cash. The NSM Loan II will be paid in PIK Interest for the first 18 months, due also in optional prepayment during that period and thereafter in either cash or PIK Interest at the election of the Borrower.

NSM will receive an upfront fee in respect of the NSM Loan I and the NSM Loan II of $24.0 million in the form of a Convertible Debenture. The agreements also provide for prepayment premiums ranging from 5%-10% during the first 36 months of the term which is payable in the form of Convertible Debenture.

Convertible Debenture: In December 2021, Navios Holdings entered into a convertible debenture with NSM covering certain payments under the NSM Loan I and II including the upfront fee of $24.0 million, the accrued interest, and the prepayment fees (“Convertible Debenture”). The lender has the option to convert any portion of the outstanding balance under the Convertible Debenture into shares of common stock of Navios Holdings under an agreed mechanism. The Convertible Debenture has a term of five years and bears interest of 4% PIK payable at maturity, if not earlier converted.

Other Financing Agreements

In December 2021, Navios Holdings entered into two commercial bank facilities and four sale and leaseback agreements for an aggregate principal amount of $287.0 million.

HCOB Loan: In connection with the refinancing of the 2022 Notes, in December 2021, Navios Holdings entered into a loan agreement with Hamburg Commercial Bank AG (“HCOB”) for an amount of up to $105.0 million, for the financing of seven drybulk vessels. The loan bears interest at a rate of LIBOR plus margin ranging from 3.25% per annum to 4.50% per annum. The loan is repayable in eight quarterly installments of $4.5 million, beginning three months from the date of the initial drawdown, with a final balloon payment of $69.0 million on the last repayment date.


CACIB/BNPP Loan: In connection with the refinancing of the 2022 Notes, in December 2021, Navios Holdings entered into a loan agreement with Credit Agricole CIB (“CACIB”) and BNP Paribas (“BNPP”) for an amount of up to $105.0 million, for the financing of seven drybulk vessels. The loan bears interest at a rate of LIBOR plus margin ranging from 2.85% per annum to 3.75% per annum. The loan is repayable in four quarterly installments of $6.5 million, beginning three months from the date of the initial drawdown, followed by eight consecutive quarterly installments of $4.8 million with a final balloon payment of $41.0 million on the last repayment date.

Sale & Leaseback Agreements: In December 2021, Navios Holdings entered into four sale and leaseback agreements of $77.0 million in total, with unrelated third parties, in order to finance four dry bulk vessels. The agreements have an average term of seven years and a weighted average effective interest rate of 5.3%, with a repurchase obligation when declared of up to $12.9 million in total.

The information contained in this Report shall not be incorporated by reference into any previous or future registration statement filed under the Securities Act of 1933, as amended (the “Securities Act”), unless specifically identified therein as being incorporated by reference.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

NAVIOS MARITIME HOLDINGS INC.
By:  

/s/ Angeliki Frangou

  Angeliki Frangou
  Chief Executive Officer
  Date: December 15, 2021


EXHIBIT INDEX

 

Exhibit
No.

  

Exhibit

99.1    Secured Loan Agreement, dated as of August 29, 2019,, as amended and restated on December 13, 2021, between Navios Maritime Holdings Inc. and Navios Shipmanagement Holdings Corporation.
99.2    Secured Loan Agreement, dated as of June 29, 2021, as amended and restated on December 13, 2021, between Navios Maritime Holdings Inc. and Navios Shipmanagement Holdings Corporation.
99.3    Convertible Debenture between Navios Maritime Holdings Inc. and Navios Shipmanagement Holdings Corporation.
99.4    Loan Agreement, dated December 14, 2021, among Kleinmar NV, White Narcissus Marine S.A., Faith Marine Ltd., Red Rose Shipping Corp., Jasmine Shipping Corporation and Moonstone Shipping Corporation, and Hamburg Commercial Bank AG.
99.5    Loan Agreement, dated December 13, 2021, among Ducale Marine Inc., Kleimar NV, Opal Shipping Corporation, Iris Corporation, Highbird Management Inc. and Corsair Shipping Ltd., and Credit Agricole Corporate and Investment Bank and BNP Paribas.
99.6    Bareboat Charter and Memorandum of Agreement, dated December 13, 2021, between Shikar Ventures S.A. and Batanagar Shipping Corporation,, providing for the sale and leaseback of Navios Stellar.
99.7    Bareboat Charter and Memorandum of Agreement, dated December 13, 2021, between Pueblo Holdings Ltd. and K.T.M. Corporation S.A., providing for the sale and leaseback of Navios Lumen.
99.8    Bareboat Charter and Memorandum of Agreement, dated December 13, 2021, between Pharos Navigation S.A. and ASL Navigation S.A.., providing for the sale and leaseback of Navios Phoenix.
99.9    Bareboat Charter and Memorandum of Agreement, dated December 13, 2021, between Rumer Holding Ltd. and Juno Marine Corp., providing for the sale and leaseback of Navios Antares.
EX-99.1

Exhibit 99.1

DATED 29 August 2019

as amended and restated

on 13 December 2021

NAVIOS MARITIME HOLDINGS INC.

as borrower

and

NAVIOS SHIPMANAGEMENT HOLDINGS CORPORATION

as lender

 

 

SECURED LOAN AGREEMENT

for a loan of up to USD127,632,195

in one or more advances

 

 

 


Index

 

Clause        Page  

1

  Purpose and definitions      1  

2

  The Lender’s Commitment, Loan and Use of Proceeds      12  

3

  Interest      13  

4

  Repayment and prepayment      14  

5

  Fees and Expenses      17  

6

  Payments and taxes; Accounts and calculations      18  

7

  Representations And Warranties      22  

8

  Undertakings      26  

9

  Conditions      31  

10

  Events of Default      31  

11

  Indemnities      35  

12

  Unlawfulness and increased cost mitigation      36  

13

  Security, set-off and miscellaneous      37  

14

  Assignment, transfer and disclosure      39  

15

  Notices      40  

16

  Governing law      42  

17

  Jurisdiction      42  

Schedule 1

    

Schedule 2

       43  

Schedule 3

       45  

Schedule 4

       57  


THIS LOAN AGREEMENT (this “Agreement”) is dated 29 August 2019 and amended and restated on 13 December 2021 and made BETWEEN:

 

(1)

NAVIOS MARITIME HOLDINGS INC. as Borrower; and

 

(2)

NAVIOS SHIPMANAGEMENT HOLDINGS CORPORATION as Lender.

IT IS AGREED as follows:

 

1

PURPOSE AND DEFINITIONS

 

1.1

Purpose

This Agreement sets out the terms and conditions upon which the Lender agrees to make available to the Borrower a loan facility of USD127,632,195 (subject to adjustment as provided for in clause 2.2) in connection with the refinancing of certain obligations.

 

1.2

Definitions

In this Agreement, unless the context otherwise requires:

Advance A” means the amount of USD48,573,372 made available by the Lender to the Borrower prior to the Effective Date;

Advance” means the amount of any advance made or to be made available by the Lender to the Borrower on or after the Effective Date in accordance with the terms of this Agreement in an aggregate amount of up to USD79,058,823;

“Alpha Merit” means Alpha Merit Corporation, a company incorporated in the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960;

Amending and Restating Agreement” means that Amending and Restating Agreement supplemental to this Agreement, dated 13 December 2021, made by and between the Borrower and the Lender.

Applicable Premium” means the excess of (A) the present value at such time of (i) 110% of the principal amount so prepaid, assuming payment thereof on the 18 month anniversary of the Effective Date plus (ii) all remaining interest payments due (calculated at a rate 18% per annum, if the prepayment occurs prior to the Second Secured Indenture Repayment Date; and 16.5% per annum if the prepayment occurs on or after Second the Secured Indenture

 

1


Repayment Date) on the amount so prepaid through and including the 18 month anniversary of the Effective Date (excluding any interest accrued to the date of such prepayment), computed using a discount rate equal to the Applicable Treasury Rate, plus 0.50%, over (B) the principal amount so prepaid on the date of prepayment;

Applicable Treasury Rate” means the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Banking Days’ prior to such date of prepayment (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date of redemption to the 18 month anniversary of the Effective Date; provided, however, that if the period from the date of prepayment to such date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given having maturities as close as possible to the date that is the 18 month anniversary of the Effective Date;

Banking Day” means a day on which dealings in deposits in USD are carried on in the London Interbank Eurocurrency Market and a day (other than Saturday or Sunday) on which banks are open for general business in London, Piraeus, Hamburg and New York City;

Borrowed Money” means Indebtedness in respect of (i) money borrowed and debit balances at banks, (ii) any bond, note, loan stock, debenture or similar debt instrument, (iii) acceptance or documentary credit facilities, (iv) receivables sold or discounted (otherwise than on a non-recourse basis), (v) deferred payments for assets or services acquired, (vi) finance leases and hire purchase contracts, (vii) swaps, forward exchange contracts, futures and other derivatives, (viii) any other transaction (including without limitation forward sale or purchase agreements) having the commercial effect of a borrowing or of any of (ii) to (vii) above and (ix) guarantees in respect of Indebtedness of any person falling within any of (i) to (viii) above;

Borrower” means Navios Maritime Holdings Inc. a company incorporated in the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

 

2


Certified Copy” means in relation to any document delivered or issued by or on behalf of any company, a copy of such document certified as a true, complete and up to date copy of the original by any of the directors or officers for the time being of such company or by such company’s attorneys or solicitors;

Collateral” means the collateral subject to the Security Documents other than the Guarantees and any other Encumbrance provided to the Lender from time to time as security for the Loan;

Commitment” means, in relation to the Loan, the maximum amount which the Lender has agreed to lend to the Borrower under clause 2.1 as reduced by any relevant term of this Agreement;

Compliance Certificate” means a certificate substantially in the form set out in schedule 3 signed by a director of the Borrower;

Convertible Debenture” means the Convertible Debenture issued by the Borrower in favour of the Lender as of the date hereof;

Default” means any Event of Default or any event or circumstance which with the giving of notice or lapse of time or the satisfaction of any other condition (or any combination thereof) would constitute an Event of Default;

“Designated Shareholder” means Mrs. Angeliki Frangou either directly or indirectly (through entities owned and controlled by her or trusts or foundations of which she is the beneficiary);

Dollars” and “USD” mean the lawful currency of the USA and in respect of all payments to be made under any of the Loan Documents means funds which are for same day settlement in the New York Clearing House Interbank Payments System (or such other US dollar funds as may at the relevant time be customary for the settlement of international banking transactions denominated in US dollars);

Drawdown Date” means, in respect of an Advance, any date being a Banking Day on which that Advance is, or is to be, made available;

Drawdown Notice” means in relation to each Advance a notice substantially in the form of Schedule 4;

Effective Date” has the meaning given thereto in the Amending and Restating Agreement;

 

3


Encumbrance” means any mortgage, charge, pledge, lien, hypothecation, assignment, title retention, preferential right, option, trust arrangement or security interest or any other encumbrance, security or arrangement conferring howsoever a priority of payment in respect of any obligation of any person;

Event of Default” means any of the events or circumstances listed in clause 10.1;

Facility Period” means the period starting as of the date hereof and ending on such date as all payment obligations whatsoever of the Borrower under or pursuant to the Loan Documents whensoever arising, actual or contingent, have been irrevocably paid;

FATCA” means:

 

  (a)

sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended, 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;

FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA;

FATCA Exempt Party” means a party that is entitled to receive payments free from any FATCA Deduction;

Fee Letter” means the fee letter dated as of the Effective Date addressed by the Borrower to the Lender in respect of fees payable by the Borrower in relation to, among other things, this Agreement;

“Final Repayment Date” means the fourth anniversary of the Effective Date or such later date requested by the Borrower as the Lender may agree in its absolute discretion on which the Loan must be repaid in full;

Financial Indebtedness” means, in relation to a person (the “debtor”), a liability of the debtor:

 

4


  (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, debenture, note or other security issued by the debtor (but excluding surety bonds, performance bonds or similar instruments except to the extent of a reimbursement obligation then outstanding);

 

  (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 agreement having the commercial effect of a borrowing or raising of money by the debtor;

 

  (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;

First Security Documents” means, together, the NMM Partnership Interests Pledge B, NMM Partnership Interests Pledge C and the Guarantees;

“GP LLC” means Navios GP LLC, a limited liability company formed and existing under the laws of the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

“GP LLC Interests Pledge” means the pledge of all membership interests of and in GP LLC to be executed by the Borrower in favour of the Lender in such form as the Lender may require in its reasonable discretion;

“Group” means at any relevant time the Borrower and its Subsidiaries but not including any Subsidiary which is listed on any public stock exchange and any of its Subsidiaries;

Group Member” means any member of the Group;

Guarantee” means each of the guarantees granted by each of the Guarantors, in such form as the Lender may agree or require in its reasonable discretion (and which may be in the form of a joint and several guarantee), and in the plural means all of them;

Guarantor” means each of the companies listed in Schedule 1 and in the plural means all of them;

Indebtedness” means any obligation howsoever arising (whether present or future, actual or contingent, secured or unsecured, as principal, surety or otherwise) for the payment or repayment of money (but excluding surety bonds, performance bonds or similar instruments except to the extent of a reimbursement obligation then outstanding);

 

5


“Latest Accounts” means, in respect of any financial year of the Borrower, the latest financial statements required to be prepared pursuant to clause 8.1.6;

“Legal Reservations” means:

 

(a)

the principle that equitable remedies may be granted or refused at the discretion of a court, the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

 

(b)

the time barring of claims under applicable limitation laws, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;

 

(c)

any general principles, reservations or qualifications, in each case as to matters of law as set out in any legal opinion;

 

(d)

the principle that any additional interest imposed under any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

 

(e)

the principle that, in certain circumstances, security granted by way of fixed charge may be characterised as a floating charge or that security purported to be constituted by way of an assignment may be recharacterised as a charge;

 

(f)

the principle that the courts of England may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant; and

 

(g)

similar principles, rights and defences under the laws of any Pertinent Jurisdiction;

Lender” means Navios Shipmanagement Holdings Corporation, a corporation incorporated in the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

Loan” means the principal amount borrowed by the Borrower under this Agreement or (as the context may require) the principal amount owing to the Lender under this Agreement at any relevant time;

 

6


Loan Documents” means this Agreement, the Convertible Debenture, the Amending and Restating Agreement and the Security Documents;

“Material Adverse Effect” means, a material adverse effect on:

 

  (a)

the business, assets or financial condition of the Group (taken as a whole); or

 

  (b)

the ability of the Borrower to perform its obligations under the Loan Documents; or

 

  (c)

subject to the Legal Reservations and the Perfection Requirements, the validity or enforceability of, or the effectiveness or ranking of, any Encumbrance granted or purporting to be granted pursuant to any of the Security Documents;.

Navios Logistics” means Navios South American Logistics Inc., a company incorporated in the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960.

Navios Logistics Shares Pledge” means the pledge of the shares of and in Navios Logistics required to be executed hereunder by the Navios Logistics Shareholder in favour of the Lender, in such form as the Lender may agree or require in its sole discretion;

Navios Logistics Shareholder” means Navios Corporation a corporation organised and existing under the laws of the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960;

New Facility Agreements” has the meaning given thereto in the Amending and Restating Agreement;

NMM” means Navios Maritime Partners L.P. a limited partnership organised and existing under the laws of the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

NMM Partnership Interests Pledge A” means the first priority pledge of 1,070,491 common units of NMM required to be executed hereunder by Alpha Merit and GP LLC in favour of the Lender, in such form as the Lender may agree or require in its sole discretion;

NMM Partnership Interests Pledge B” means the first priority pledge of 2,070,216 common units of NMM required to be executed hereunder by Alpha Merit, and the Borrower in favour of the Lender, in such form as the Lender may agree or require in its sole discretion;

 

7


NMM Partnership Interests Pledge C” means a first priority pledge of 1,905 common units of NMM required to be executed hereunder by Alpha Merit in favour of the Lender, in such form as the Lender may agree or require in its sole discretion;

Permitted Encumbrance” means (i) any Encumbrance created pursuant to or expressly permitted by the Loan Documents or otherwise permitted by the Lender, (ii) any Encumbrance permitted by the terms of the New Facility Agreements, (iii) any lien arising by the operation of law, (iv) any Encumbrance existing as at the Effective Date in respect of any Financial Indebtedness, (v) any Encumbrance securing Financial Indebtedness permitted under clause 8.2.3, and (vi) such other Encumbrances as the Lender may consent to for the purposes of this definition;

Perfection Requirements” means the making or procuring of appropriate registrations, filings, endorsements, notarisations, stampings and/or notifications of the Security Documents and/or the security expressed to be created under the Security Documents determined by the legal advisers to the Lender to be necessary in any Pertinent Jurisdiction for the enforceability or production in evidence of the relevant Security Document to the extent such matters are complied with within any timeframe specified by law or the relevant Security Document;

Pertinent Jurisdiction” means any jurisdiction in which or where any Security Party is incorporated, resident, domiciled, has a permanent establishment or assets which are secured under the Security Documents;

Proceedings” means any litigation, arbitration, legal action or complaint or judicial, quasi-judicial or administrative proceedings whatsoever arising or instigated by anyone in any court, tribunal, public office or other forum whatsoever and wheresoever (including, without limitation, any action for provisional or permanent attachment of any thing or for injunctive remedies or interim relief and any action instigated on an ex parte basis);

Prohibited Person” means a person that is:

 

  (d)

listed on, or owned or controlled by a person listed on any Sanctions List;

 

  (e)

permanently located, organised or resident in, a country or territory that is the target of country-wide Sanctions; or

 

  (f)

otherwise a target of Sanctions.

 

8


Register” has the meaning specified in clause 14.3

Required Authorisation” means any authorisation, consent, declaration, licence, permit, exemption, approval or other document, whether imposed by or arising in connection with any law, regulation, custom, contract, security or otherwise howsoever which must be obtained at any time from any person, government entity or central bank or other self-regulating or supra-national authority in order to enable the Borrower lawfully to draw the Loan and/or to enable any Security Party lawfully and continuously to continue its corporate existence and/or perform all its obligations whatsoever whensoever arising under the Loan Documents and/or grant security under the Security Documents and/or to ensure the continuous validity and enforceability thereof;

Sanctions” means any economic or trade sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by:

 

  (g)

the United States government;

 

  (h)

the United Nations;

 

  (i)

the European Union or any of its Member States;

 

  (j)

the United Kingdom;

 

  (k)

any country to which any Security Party is bound; or

 

  (l)

the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty’s Treasury (“HMT”) (together “Sanctions Authorities”).

Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list issued by OFAC, the “Consolidated List of Financial Sanctions Targets and Investment Ban List” issued by HMT, or any similar list issued or maintained or made public by any of the Sanctions Authorities.

Second Security Documents” means, together, the NMM Partnership Interests Pledge A, the GP LLC Interests Pledge and the Navios Logistics Shares Pledge, and any other documents designated by the Borrower and the Lender as a “Second Security Document”;

 

9


“Second Secured Indenture” means the Indenture dated as of 21 November 2017 for USD305,000,000 issued by the Borrower and Navios Maritime Finance II (US) Inc. for 11.25% Senior Secured Notes due on August 15, 2022, as amended and/or to be amended from time to time;

Second Secured Indenture Repayment Date” means the date on which all amounts due and payable under the Second Secured Indenture are repaid;

Security Documents” means, together, (i) the First Security Documents and (ii) following the Second Secured Indenture Repayment Date, the Second Security Documents, and any other documents designated by the Borrower and the Lender as “Security Documents” or any other documents as may have been or shall from time to time after the date of this Agreement be executed in favour of the Lender to guarantee and/or to govern and/or to secure payment of all or any part of the Loan, interest thereon and other moneys from time to time owing by the Borrower pursuant to this Agreement;

Security Party” means the Borrower, the Guarantors, Alpha Merit, GP LLC, the Navios Logistics Shareholder or any other person who may at any time be a party to any of the Loan Documents (other than the Lender);

Subsidiary” of a person means any company or entity directly or indirectly controlled by such person, and for this purpose “control” means either the ownership of more than fifty per cent (50%) of the voting share capital (or equivalent rights of ownership) of such company or entity;

Taxes” includes all present and future income, corporation, capital or value-added taxes and all stamp and other taxes and levies, imposts, deductions, duties, charges and withholdings whatsoever together with interest thereon and penalties in respect thereto, if any, and charges, fees or other amounts made on or in respect thereof (and “Taxation” shall be construed accordingly); and

Unlawfulness” means any event or circumstance which either is or, as the case may be, might in the reasonable opinion of the Lender become the subject of a notification by the Lender to the Borrower under clause 12.1.

 

1.3

Construction

In this Agreement, unless the context otherwise requires:

 

10


1.3.1

clause headings and the index are inserted for convenience of reference only and shall be ignored in the construction of this Agreement;

 

1.3.2

references to clauses and schedules are to be construed as references to clauses of, and schedules to, this Agreement and references to this Agreement include its schedules;

 

1.3.3

references to (or to any specified provision of) this Agreement or any other document shall be construed as references to this Agreement, that provision or that document as in force for the time being and as duly amended and/or supplemented and/or novated;

 

1.3.4

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 government entity, central bank or any self-regulatory or other supra-national authority (including, without limitation, any regulation implementing or complying with (1) the Basel Framework set forth by the Basel Committee on Banking Supervision as in effect on the Effective Date (the “Basel Framework”) and (2) any other law or regulation which, at any time and from time to time, implements and/or amends and/or supplements and/or re-enacts and/or supersedes, whether in whole or in part, the Basel Framework or any predecessor or successor thereto published from time to time by the Basel Committee on Banking Supervision (including European Union Directive 2013/36/EU and European Union Regulation 575/2013), and whether such implementation, application or compliance is by a government entity, a lender or any company affiliated to it);

 

1.3.5

references to any person in or party to this Agreement shall include reference to such person’s lawful successors and assigns and references to the Lender shall also include a transferee;

 

1.3.6

words importing the plural shall include the singular and vice versa;

 

1.3.7

references to a time of day are, unless otherwise stated, to London time;

 

1.3.8

references to a person shall be construed as references to an individual, firm, company, corporation or unincorporated body of persons or any government entity;

 

1.3.9

references to a “guarantee” include references to an indemnity or any other kind of assurance whatsoever (including, without limitation, any kind of negotiable instrument, bill or note) against financial loss or other liability including, without limitation, an obligation to purchase assets or services as a consequence of a default by any other person to pay any Indebtedness and “guaranteed” shall be construed accordingly;

 

11


1.3.10

references to any statute or other legislative provision are to be construed as references to any such statute or other legislative provision as the same may be re-enacted or modified or substituted by any subsequent statute or legislative provision (whether before or after the date hereof) and shall include any regulations, orders, instruments or other subordinate legislation issued or made under such statute or legislative provision;

 

1.3.11

a certificate by the Lender as to any amount due or calculation made or any matter whatsoever determined in connection with this Agreement shall be conclusive and binding on the Borrower except for manifest error;

 

1.3.12

if any document, term or other matter or thing is required to be approved, agreed or consented to by the Lender such approval, agreement or consent must be obtained in writing unless the contrary is stated; and

 

1.3.13

the words “other” and “otherwise” shall not be construed eiusdem generis with any foregoing words where a wider construction is possible.

 

1.4

Contracts (Rights of Third Parties Act) 1999

No part of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.

 

2

THE LENDERS COMMITMENT, LOAN AND USE OF PROCEEDS

 

2.1

The Commitment

In reliance upon each of the representations and warranties in clause 7, the Lender agrees to make available by way of loan to the Borrower on the terms of this Agreement the principal amount described in clause 2.2.

 

2.2

Amount

The principal amount of USD127,632,195 to be made available in:

 

(a)

Advance A in the amount of USD48,573,372 (which amount has been drawn prior to the Effective Date and the Borrower acknowledges receipt thereof); and

 

(b)

one or more Advances on or after the Effective Date in an aggregate amount of up to USD79,058,823.

 

12


2.3

Advance

On the terms and subject to the conditions of this Agreement, the Loan shall be advanced in one or more Advances, each on a Drawdown Date following receipt by the Lender from the Borrower of a Drawdown Notice not later than 10 a.m. London time on the Banking Day before such proposed Drawdown Date. A Drawdown Notice shall be effective on actual receipt by the Lender and, once given, shall be irrevocable.

 

2.4

Availability

Upon receipt of a Drawdown Notice complying with the terms of this Agreement, the Lender shall, subject to the provisions of clause 9, make an Advance available to the Borrower on the relevant Drawdown Date in payment to such account as the Borrower shall specify in the relevant Drawdown Notice, provided that such Drawdown Date must be on or before the Second Secured Indenture Repayment Date (or such later date as the Borrower and the Lender may agree).

 

2.5

Use of Proceeds

The Advances shall be applied to repay certain indebtedness and for general corporate purposes, and the Lender shall have no responsibility for the Borrower’s use of the proceeds of the Loan and is not bound to monitor or verify the application of any amount borrowed pursuant to the terms of this Agreement.

 

3

INTEREST

 

3.1

Interest rate

3.1.1 The Loan shall bear interest (a) up to the Effective Date in respect of Advance A, 5% per annum and (b) from the Effective Date onwards in respect of Advance A and from the Drawdown Date in respect of any Advance (i) up to but not including the Second Secured Indenture Repayment Date, 15% per annum and thereafter (ii) 13.5% per annum, which shall, following the Effective Date, be payable (subject to Clause 3.1.3) in quarterly instalments in arrears commencing with an instalment for the whole Loan becoming due three months after the Drawdown Date in respect of the first Advance to be drawn down after the Effective Date and quarterly thereafter (each such date, an “Interest Payment Date”).

 

13


3.1.2

Interest shall be calculated on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed during the period.

 

3.1.3

If the Borrower does not pay the amount of then due and owing interest in immediately available funds in accordance with Clause 3.1.1 on the Interest Payment Date on which it is due (it being agreed that no interest in respect of any period from the Effective Date to the 18 month anniversary of the Effective Date may be paid in cash or other funds) then such unpaid interest shall be automatically deemed to be paid by means of an increase as of the Interest Payment Date to the outstanding principal amount of the Convertible Debenture in an amount equal to such unpaid interest plus an amount equal to 3% per annum of the relevant part of the Loan and/or any part thereof for which such unpaid interest was due. The Borrower may pay all or a portion of any due interest in immediately available funds, but not with respect to any portion thereof accruing during the period from the Effective Date to the 18 month anniversary of the Effective Date.

 

3.2

Default interest

If the Lender fails to receive any sum whatsoever on its due date for payment under any of the Loan Documents (other than any sum expressly deemed paid hereunder by means of an increase to the outstanding principal amount of the Convertible Debenture), the Borrower must pay interest on such sum on demand from the due date up to the date of actual payment (as well after as before judgment) at a rate of two (2.0) per cent per annum over the interest rate referred to in clause 3.1. Such interest shall be due and payable on demand, shall accrue daily and shall be compounded annually.

 

4

REPAYMENT AND PREPAYMENT

 

4.1

Repayment

Subject as otherwise provided in this Agreement, the Borrower must repay the Loan in quarterly instalments of USD5,000,000, falling due on Interest Payment Dates, with the first instalment falling due on the first Interest Payment Date in the third quarter of 2023 and subsequent instalments falling due on subsequent Interest Payment Dates thereafter and on the Final Repayment Date the Borrower must repay the whole of the Loan then outstanding.

 

14


4.2

Voluntary prepayment

The Borrower may prepay the Loan in whole or in part (being USD1,000,000 or any larger sum which is a whole multiple of USD1,000,000) at any time.

 

4.3

Mandatory Prepayment

The Borrower shall prepay the Loan:

 

4.3.1

in full upon the occurrence of a “Change of Control” as described in Clause 10.1.21;

 

4.3.2

in full upon any Indebtedness being incurred by the Borrower contrary to the provisions of clause 7.1.16 and the terms of this Agreement on the date such Indebtedness is incurred;

 

4.3.3

on the date falling 30 days after the sale or receipt of insurance proceeds from the total loss of any vessel owned by any Group Member in an amount equal to the net proceeds of such sale or total loss as follows: after payment of any amounts then due and payable to any mortgagee or assignee of insurance of such vessel, any remaining balance amount to be paid forthwith to the Lender in partial prepayment of the Loan, unless the Borrower has before that date provided to the Lender acceptable (to the Lender in its absolute discretion) security over an asset having a value the same as or greater than the sold or lost vessel; and

 

4.3.4

on the date falling 30 days after the sale of any Collateral (to the extent not covered by Clause 4.3.3) in an amount equal to the net proceeds of such sale, unless the Borrower has before that date provided to the Lender acceptable (to the Lender in its absolute discretion) security over an asset having a value the same as or greater than the sold asset.

 

4.4

Amounts payable on prepayment

Any prepayment of all or part of the Loan under this Agreement shall be made together with:

 

4.4.1

accrued interest on the amount to be prepaid to the date of such prepayment which shall be deemed to be paid at the applicable rate(s) set forth in Clause 3.1.3 by means of an increase as of such date to prepayment to the outstanding principal amount of the Convertible Debenture; except that Borrower may elect to pay any interest accrued with respect to any period from the 18 month anniversary of the Effective Time that was not previously deemed to have been paid by means of an increase to the outstanding principal amount of the Convertible Debenture in immediately available funds at the applicable rate(s) set forth in Clause 3.1.1;

 

4.4.2

any additional amount payable under clause 6.5;

 

15


4.4.3

in respect of any payment made under Clause 4.2 , 4.3 or 10.2, a prepayment fee due to, and earned by, the Lender in an amount of:

 

  (a)

in respect of any prepayment made after the Effective Date but before the 18 month anniversary of the Effective Date, the Applicable Premium; and

 

  (b)

in respect of any prepayment made on or after the 18 month anniversary of the Effective Date but before the second anniversary of the Effective Date, 10% of the amount so prepaid; and

 

  (c)

in respect of any prepayment made on or after the second anniversary of the Effective Date but before the third anniversary of the Effective Date, 5% of the amount so prepaid;

which amount shall be deemed to be paid by means of an increase to the principal amount outstanding under the Convertible Debenture.

 

4.4.4

if of the whole Loan, all other sums payable by the Borrower to the Lender under this Agreement or any of the other Loan Documents.

 

4.5

Notice of prepayment; reduction of repayment instalments

 

4.5.1

No prepayment may be effected under clause 4.2 unless the Borrower shall have given the Lender at least three (3) Banking Days’ prior written notice of its intention to make such prepayment. Every notice of prepayment shall be effective only on actual receipt by the Lender, shall be irrevocable, shall specify the amount to be prepaid and shall oblige the Borrower to make such prepayment on the date specified.

 

4.5.2

The Borrower may not prepay any part of the Loan except as expressly provided in this Agreement.

 

4.5.3

No amount prepaid may be reborrowed.

 

4.6

Application of prepayments

 

4.6.1

the Borrower may elect to apply any voluntary prepayments made pursuant to clause 4.2 towards reduction of any remaining instalment payments in respect of the Loan; and

 

16


4.6.2

any mandatory prepayments under Clause 4.3 (other than a mandatory prepayment in full) shall be applied against the remaining instalment payments in respect of the Loan on a pro rata basis.

 

5

FEES AND EXPENSES

 

5.1

Fees

The Borrower shall on the Effective Date pay to the Lender fees in accordance with the Fee Letter.

 

5.2

Expenses

The Borrower agrees to reimburse the Lender on a full indemnity basis on demand for all reasonable and documented expenses and/or disbursements whatsoever:

 

5.2.1

in connection howsoever with the negotiation, preparation, execution and, where relevant, registration of any contemplated or actual amendment, indulgence or the granting of any waiver or consent howsoever in connection with any of the Loan Documents; and

 

5.2.2

in contemplation or furtherance of, or otherwise howsoever in connection with, the exercise or enforcement of, or preservation of any rights, powers, remedies or discretion under any of the Loan Documents or any amendment thereto or consideration of the Lender’s rights thereunder or any action proposed or taken with interest at the rate referred to in clause 3.2 from the date falling 3 Banking Days after the date on which such expenses and/or disbursements were demanded by the Lender to the date of payment (as well after as before judgment).

 

5.3

Value Added Tax

All expenses payable under to this clause 5 must be paid with value added tax or any similar tax (if any) properly chargeable thereon. Any value added tax chargeable in respect of any services supplied by the Lender under this Agreement must, on delivery of the value added tax invoice, be paid in addition to any sum agreed to be paid hereunder.

 

5.4

Stamp and other duties

The Borrower must pay all stamp, documentary, registration or other like duties or taxes (including any duties or taxes payable by the Lender) imposed on or in connection with any Loan Documents or the Loan and agree to indemnify the Lender against any liability arising by reason of any delay or omission by the Borrower to pay such duties or taxes other than to the extent such duties or taxes arise as a result of the Lender transferring its Loan or Commitments under this Agreement.

 

17


6

PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS

 

6.1

No set-off or counterclaim

All payments to be made by the Borrower under any of the Loan Documents must be made in full, without any set-off or counterclaim whatsoever and, subject to clause 6.5, free and clear of any deductions or withholdings, in USD not later than 11 a.m. London time on the due date to such account of the Lender as the Lender may from time to time notify to the Borrower.

 

6.2

Non-Banking Days

When any payment under any of the Loan Documents would otherwise be due on a day which is not a Banking Day, the due date for payment shall be extended to the next following Banking Day.

 

6.3

Calculations

All interest and other payments of an annual nature under any of the Loan Documents shall accrue from day to day and be calculated on the basis of actual days elapsed and a 365 or 366 day year, as applicable.

 

6.4

Currency of account

If any sum due from the Borrower under any of the Loan Documents, or under any order or judgment given or made in relation thereto or for any other reason whatsoever, must be converted from the currency (“the first currency”) in which the same is payable thereunder into another currency (“the second currency”) for the purpose of (i) making or filing a claim or proof against the Borrower, (ii) obtaining an order or judgment in any court or other tribunal or (iii) enforcing any order or judgment given or made in relation thereto, the Borrower undertakes to indemnify and hold harmless the Lender from and against any loss suffered as a result of any discrepancy between (a) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (b) the rate or rates of exchange at which the Lender may in the ordinary course of business purchase the first currency with the second currency upon receipt of a sum paid to it in satisfaction, in whole or in part, of any such

 

18


order, judgment, claim or proof. Any amount due from the Borrower under this clause 6.4 shall be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of any of the Loan Documents and the term “rate of exchange” includes any premium and costs of exchange payable in connection with the purchase of the first currency with the second currency.

 

6.5

Grossing-up for Taxes

If at any time the Borrower must make any deduction or withholding in respect of Taxes from any payment due under any of the Loan Documents, the sum due from the Borrower in respect of such payment must then be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Lender receives on the due date for such payment (and retains, free from any liability in respect of such deduction or withholding), a net sum equal to the sum which it would have received had no such deduction or withholding been made and the Borrower agrees to indemnify the Lender on demand against any losses or costs certified by the Lender to have been incurred by it by reason of any failure of the Borrower to make any such deduction or withholding or by reason of any increased payment not being made on the due date for such payment. The Borrower must promptly deliver to the Lender any receipts, certificates or other proof evidencing the amounts (if any) paid or payable in respect of any deduction or withholding as aforesaid. . The Lender shall use commercially reasonable efforts (including the delivery of properly completed and executed Tax forms or documentation prescribed by applicable law) to reduce or eliminate any deduction or withholding for Taxes from any payment due under any of the Loan Documents and to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to this clause 6.5.

 

6.6

Loan account

The Lender agrees to maintain a control account showing the Loan and other sums owing by the Borrower under the Loan Documents and all payments in respect thereof being made from time to time. The control account shall, in the absence of manifest error, absent prompt objection by the Borrower, be conclusive as to the amount from time to time owing by the Borrower under the Loan Documents.

 

19


6.7

Partial payments

If, on any date on which a payment is due to be made by the Borrower under any of the Loan Documents, the amount received by the Lender from the Borrower falls short of the total amount of the payment due to be made by the Borrower on such date then, without prejudice to any rights or remedies available to the Lender under any of the Loan Documents, the Lender must apply the amount actually received from the Borrower in or towards discharge of the obligations of the Borrower under the Loan Documents in the following order, notwithstanding any appropriation made, or purported to be made, by the Borrower:

 

6.7.1

first, in or towards payment, on a pro-rata basis, of any unpaid costs and expenses of the Lender under any of the Loan Documents;

 

6.7.2

secondly, in or towards payment of any expenses payable to the Lender under, or in relation to, the Loan Documents which remain unpaid;

 

6.7.3

thirdly, in or towards payment to the Lender of any accrued interest owing in respect of the Loan (other than accrued interest expressly deemed paid hereunder by means of an increase to the outstanding principal amount of the Convertible Debenture) which shall have become due under any of the Loan Documents but remains unpaid;

 

6.7.4

fourthly, in or towards payment to the Lender of any principal in respect of the Loan which shall have become due but remains unpaid;

 

6.7.5

fifthly, in or towards payment to the Lender of any other sum which shall have become due under any of the Loan Documents but remains unpaid (and, if more than one such sum so remains unpaid, on a pro rata basis), other than any sum expressly deemed paid hereunder by means of an increase to the outstanding principal amount of the Convertible Debenture.

The order of application set out in clauses 6.7.1 to 6.7.5 may be varied by the Lender without any reference to, or consent or approval from, the Borrower.

 

6.8

FATCA

 

6.8.1

Subject to Clause 6.8.3 below, each party shall, within ten (10) Banking Days of a reasonable request by another party:

 

(a)

confirm to that other party whether it is:

 

  (i)

a FATCA Exempt Party; or

 

20


  (ii)

not a FATCA Exempt Party; and

 

(b)

supply to that other party such forms, documentation and other information relating to its status under FATCA (including its applicable pass-through 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.

 

6.8.2

If a party confirms to another party pursuant to Clause 6.8.1(a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.

 

6.8.3

Clause 6.8.1(a) above shall not oblige the Lender to do anything which would or might in its reasonable opinion constitute a breach of:

 

(a)

any law or regulation;

 

(b)

any policy of the Lender;

 

(c)

any fiduciary duty; or

 

(d)

any duty of confidentiality.

 

6.8.4

If the Borrower is required to make a FATCA Deduction, the Borrower shall make that FATCA Deduction and any payment required in connection with that FATCA Deduction within the time allowed and in the minimum amount required by FATCA;

 

6.8.5

The Borrower 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 a FATCA Deduction) notify the Lender accordingly; and

 

6.8.6

Within thirty days of making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the Borrower shall deliver to the Lender evidence satisfactory to the Lender that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the relevant governmental or taxation authority.

 

21


7

REPRESENTATIONS AND WARRANTIES

 

7.1

Continuing representations and warranties

The Borrower represents and warrants to the Lender that:

 

7.1.1

Due incorporation

each of the Security Parties is duly incorporated and validly existing in good standing, under the laws of the Republic of the Marshall Islands as a corporation or limited liability company and has power to carry on its respective business as it is now being conducted and to own its property and other assets to which it has unencumbered legal and beneficial title except as disclosed to the Lender in writing;

 

7.1.2

Corporate power

each of the Security Parties has power to execute, deliver and perform its obligations and, as the case may be, to exercise its rights under the Loan Documents to which it is a party; all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and on the execution of the Loan Documents performance of the same and no limitation on the powers of the Borrower to borrow or any other Security Party to howsoever incur liability and/or to provide or grant security will be exceeded as a result of borrowing any part of the Loan;

 

7.1.3

Binding obligations

subject to the Legal Reservations and the Perfection Requirements, the Loan Documents, when executed, will constitute valid and legally binding obligations of the relevant Security Parties enforceable in accordance with their respective terms and admissible in evidence and the Security Documents will create first priority Encumbrances;

 

7.1.4

No conflict with other obligations

the execution and delivery of, the performance of its obligations under, and compliance with the provisions of, the Loan Documents by the relevant Security Parties will not (i) contravene in any material respect any existing applicable law, statute, rule or regulation or any judgment, decree or permit of any Pertinent Jurisdiction to which any Security Party or other member of the Group 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 any Security Party or any other member of the Group is a party or is subject or by which it or any of its property is bound which is likely to have a Material Adverse Effect , (iii) contravene or conflict with any provision of the constitutional documents of any Security Party or (iv) result in the creation or imposition of, or oblige any Security Party to create, any Encumbrance (other than a Permitted Encumbrance) on any of the undertakings, assets, rights or revenues of any Security Party secured under the Security Documents;

 

22


7.1.5

No default

no Default has occurred which is continuing;

 

7.1.6

No litigation or judgments

no Proceedings are current, pending or, to the knowledge of the officers of the Borrower, threatened against any Security Party or any other Group Members or their assets which could have a Material Adverse Effect and there exist no judgments, orders, injunctions which would materially affect the obligations of any Security Party under the Loan Documents other than have been publicly disclosed by the Borrower prior to the Effective Date;

 

7.1.7

No filings required

it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of any of the Loan Documents that they or any other instrument be notarised, filed, recorded, registered or enrolled in any court, public office or elsewhere in any Pertinent Jurisdiction or that any stamp, registration or similar tax or charge be paid in any Pertinent Jurisdiction on or in relation to the Loan Documents and each of the Loan Documents is in proper form for its enforcement in the courts of each Pertinent Jurisdiction;

 

7.1.8

Required Authorisations and legal compliance

all Required Authorisations have been obtained or effected and are in full force and effect and no Security Party has in any way contravened any applicable law, statute, rule or regulation (including all such as relate to money laundering);

 

7.1.9

Choice of law

the choice of English law to govern the Loan Documents and the submissions by the Security Parties to the jurisdiction of the English courts and the obligations of the Security Parties associated therewith, are valid and binding;

 

23


7.1.10

No immunity

no Security Party nor any of their assets is entitled to immunity on the grounds of sovereignty or otherwise from any Proceedings whatsoever;

 

7.1.11

Financial statements correct and complete

the Latest Accounts of the Borrower in respect of the relevant financial year as delivered to the Lender present fairly and accurately the financial position of the Borrower for the financial year, ended on such date and, as at such date, the Borrower had no material liabilities (contingent or otherwise) or any unrealised or anticipated losses which are not disclosed by, or reserved against or provided for in, such financial statements or notes thereto;

 

7.1.12

Pari passu

the obligations of the Security Parties under this Agreement are direct, general and unconditional obligations of the Security Parties and rank at least pari passu with all present and future unsubordinated Indebtedness of each Security Party except for obligations which are mandatorily preferred by operation of law and not by contract;

 

7.1.13

Information/ Material Adverse Effect

all written factual information, whatsoever provided by any Security Party to the Lender in connection with the negotiation and preparation of the Amending and Restating Agreement, or otherwise provided hereafter in relation to, or pursuant to this Agreement is true and accurate in all material respects and not misleading and the Borrower’s public filings do or will not omit material facts and all reasonable enquiries have been made to verify the facts and statements contained therein as of such date and there has not occurred a Material Adverse Effect on any Security Party since such information was provided to the Lender;

 

7.1.14

Freedom from Encumbrances

save as otherwise disclosed in writing by the Borrower to the Lender on or prior to the date of this Agreement, no properties or rights which are, or are to be, the subject of any of the Security Documents nor any part thereof will be subject to any Encumbrance except Permitted Encumbrances;

 

24


7.1.15

Copies true and complete

the copies of the constitutional documents of the Security Parties delivered or to be delivered to the Lender pursuant to clause 9.1 are, or will when delivered be, true and complete copies; and there have been no amendments or variations thereof;

 

7.1.16

Indebtedness

no Security Party has incurred any Indebtedness other than as permitted under the Second Secured Indenture or under clause 8.2.3 or as otherwise disclosed to the Lender in writing or as disclosed in the Group’s public filings;

 

7.1.17

Use of proceeds

the Borrower shall apply the Loan only for the purposes specified in clauses 1.1. and 2.5;

 

7.1.18

Filings

subject to any permissible extensions, the Borrower has filed all material tax and other fiscal returns required to be filed with any tax authority to which it is subject;

 

7.1.19

Office

the Borrower does not have an office in England;

 

7.1.20

Prohibited Persons, unlawful activity

 

  (a)

none of the Group Members are a Prohibited Person; and

 

  (b)

to the best of its knowledge, no title in any property or other assets subject to an Encumbrance created by a Loan Document has been obtained in breach of any existing applicable law, statute, rule or regulation;

 

7.1.21

Insolvency

none of the Security Parties is unable or has admitted inability to pay its debts as they fall due, has suspended making payments on any of its debts or has announced an intention to do so, is or has become insolvent; or, save as disclosed to the Lender prior to the Effective Date, or has suffered the declaration of a moratorium in respect of any of its Indebtedness;

 

25


7.1.22

Sanctions

no Security Party nor any director, officer, agent, employee of any Security Party or any person acting on behalf of any Security Party, is a Prohibited Person nor acts directly or indirectly on behalf of a Prohibited Person; and

 

7.2

Repetition of representations and warranties

On the Effective Date and on each Interest Payment Date, the Borrower shall be deemed to repeat the representations and warranties in clause 7.1 updated mutatis mutandis as if made with reference to the facts and circumstances existing on such day.

 

8

UNDERTAKINGS

 

8.1

General

The Borrower undertakes with the Lender that, from the Effective Date until the end of the Facility Period, it will:

 

8.1.1

Notice of Default and Proceedings

promptly inform (and any public filing of the Borrower containing the relevant information about the matters hereafter described shall constitute compliance with this covenant to inform) the Lender of (a) when required under the Second Secured Indenture, any Default (including the occurrence of any Event of Default under (and as defined in) the Second Secured Indenture, in which case the Borrower shall also provide to the Lender copies of all demands or notices made in connection therewith) and of any other circumstances or occurrence which might materially and adversely affect the ability of the Borrower to perform its obligations under any of the Loan Documents and (b) as soon as the same is instituted or formally threatened in writing, details of any Proceedings involving the Borrower which could have a Material Adverse Effect on the Borrower and will from time to time, if so reasonably requested by the Lender, confirm to the Lender in writing that, save as otherwise stated in such confirmation, no Default has occurred and is continuing and no such Proceedings are on foot or have been formally threatened in writing;

 

8.1.2

Authorisation

obtain or cause to be obtained, maintain in full force and effect and comply fully with all Required Authorisations, provide the Lender, upon request, with Certified Copies of the same and do, or cause to be done, all other acts and things which may from time to time be necessary under any applicable law for the continued due performance of all the obligations of the Security Parties under each of the Loan Documents;

 

26


8.1.3

Corporate Existence/Ownership

ensure that each Security Party maintains its corporate existence as a body corporate duly organised and validly existing and in good standing under the laws of the Pertinent Jurisdiction and ensure that the Borrower is owned and controlled, directly or through other companies, by the persons disclosed to the Lender prior to the date hereof;

 

8.1.4

Use of proceeds

use the Loan exclusively for the purposes specified in clauses 1.1 and 2.5; and

 

8.1.5

Pari passu

ensure that its obligations under this Agreement shall at all times rank at least pari passu with all its present and future unsecured and unsubordinated Indebtedness with the exception of any obligations which are mandatorily preferred by law and not by contract;

 

8.1.6

Financial statements

provide the Lender (or procure that is provided):

 

(a)

as soon as possible, but in no event later than 180 days after the end of each of its financial years, annual audited (prepared in accordance with US GAAP by a firm of accountants acceptable to the Lender) consolidated balance sheet and profit and loss accounts of the Borrower (commencing with the financial year ending 31 December 2021) and public filing in respect of the Borrower shall constitute delivery;

 

(b)

as soon as possible, but in no event later than 90 days after the end of each of its 6-month period ending on 30 June of each financial year, commencing with the 6-month period ending on 30 June 2022, the Borrower’s unaudited consolidated balance sheet and profit and loss accounts for that 6 month period certified as to their correctness by its chief financial officer;

 

(c)

prior to the start of each of its financial years, an annual forecast in respect of the Borrower;

 

(d)

details of any litigation, arbitration, administrative proceedings, Default and any other events or circumstances which are likely to have a Material Adverse Effect on the Borrower;

 

27


8.1.7

Compliance Certificates

deliver to the Lender on the dates on which the financial statements must be delivered to the Lender under clause 8.1.6(b), a Compliance Certificate and such other supporting information as the Lender may reasonably require;

 

8.1.8

Provision of further information

provide the Lender with such financial or other information concerning the Borrower, all vessels (including those under construction) owned, acquired, sold or managed by any Group Member, or any of its Subsidiaries, including, commitments, financial standing, operations and in relation to Borrowed Moneys, repayment of Borrowed Money, as the Lender may from time to time reasonably require;

 

8.1.9

Compliance with laws and payment of taxes

comply in all material respects with all relevant applicable laws, statutes, directives, decrees, rulings and analogous rules (including, but not limited to, those relating to Sanctions) and regulations (other than in the case of Sanctions) where failure to do so would be reasonably likely to have a Material Adverse Effect and pay all taxes for which it is liable as they fall due unless disputed in good faith;

 

8.1.10

Second Secured Indenture

prior to the Second Secured Indenture Repayment Date, comply with all of its obligations under the Second Secured Indenture;

 

8.1.11

Sanctions

will not and will use reasonable endeavours to ensure that no Group Member does, conduct or undertake any business:

 

(a)

in breach of any Sanctions of:

 

  (i)

the United Nations Security Council;

 

  (ii)

the European Union;

 

  (iii)

the United Kingdom;

 

28


  (iv)

the United States of America; or

 

  (v)

the Marshall Islands

as they apply to their members or nationals; or

 

(b)

in any trade, carriage of goods or business which is forbidden by the laws of the United Kingdom or the United States of America as they apply to their members or nationals, or any law applicable to the Borrower; or

 

(c)

in carrying illicit or prohibited goods; or

 

(d)

in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated; or

 

(e)

to the knowledge of the Borrower, by or for the benefit of a Prohibited Person;

 

8.1.12

Delivery of reports

deliver to the Lender upon request a copy of each report, circular, notice or like document issued by the Borrower to its shareholders or creditors generally;

 

8.2

Negative undertakings

The Borrower undertakes with the Lender that, from the Effective Date until the end of the Facility Period, it will not, without the prior written consent of the Lender:

 

8.2.1

Negative pledge

permit any Encumbrance (other than (i) a Permitted Encumbrance or (ii) as otherwise disclosed (x) in writing by the Borrower to the Lender or (y) in public filings, in each case of sub-clauses (x) and (y), on or prior to the date of this Agreement) to subsist, arise or be created or extended over any shares owned by the Borrower to secure or prefer any present or future Indebtedness or other liability or obligation of any Group Member or any other person;

 

8.2.2

No merger or transfer

merge or consolidate with or into or directly or indirectly sell all or substantially all of its properties and assets to any other person (a “successor person”) unless: (i) the Borrower is the surviving person and (ii) immediately after giving effect to the transaction, no Event of Default (or any event which is, or after notice or passage of time or both would be, an Event of Default), shall have occurred and be continuing;

 

29


8.2.3

Financial Indebtedness

incur, and will not permit any Security Party to incur, any Financial Indebtedness without the Lender’s consent other than (i) Financial Indebtedness under the New Facility Agreements and (ii) Financial Indebtedness incurred in the ordinary course of business with respect to performance bonds, surety, statutory, customs and appeal bonds, bid bonds, completion guarantees and similar obligations, including with respect to letters of credit supporting such obligations; provided that no Financial Indebtedness of Navios Logistics and its direct or indirect subsidiaries shall be prohibited hereunder;

 

8.2.4

Prohibited Persons

have, and shall use reasonable endeavours to procure that no Group Member will have, any course of dealings, directly or indirectly, with any Prohibited Person.

8.2.5    Dividends

declare or pay dividends except for so long as no Event of Default has then occurred which is continuing, or would occur as a result of such declaration;

 

8.2.6

Investments and payments

make investments and payments except for so long as no Event of Default has then occurred which is continuing, or would occur as a result of such investment.

 

8.3

Second Secured Indenture

On the date on which all sums due and payable under the Second Secured Indenture are paid and any encumbrance granted thereunder over any asset which is or is to be the subject of a Second Security Documents is released, the Borrower, without the need for a request therefor, shall deliver to the Lender the documentation referred to in Schedule 2.

 

8.4

Second Secured Indenture

Save as otherwise expressly provided in clause 8.2, any other terms or transactions or events permitted by the Second Secured Indenture shall be deemed to be permitted under this Agreement for the period up to, but not following the Second Secured Indenture Repayment Date.

 

30


9

CONDITIONS

 

9.1

Advance: Documents and evidence

The Lender’s obligation to make available an Advance is subject to the following conditions precedent:

 

9.1.1

the representations and warranties contained in clause 7.1 being then true and correct (giving effect to any materiality qualifiers set forth therein) as if each was made with respect to the facts and circumstances existing at such time;

 

9.1.2

no Default shall have occurred and be continuing and no Default would result from the advance of that Advance; and

 

9.1.3

There has occurred nothing since the Effective Date which would have a Material Adverse Effect.

 

9.2

Waiver of conditions precedent

The conditions specified in this clause 9 are inserted solely for the benefit of the Lender and may be waived by the Lender in whole or in part and with or without conditions.

 

10

EVENTS OF DEFAULT

 

10.1

Events

Each of the following events shall constitute an Event of Default (whether such event shall occur voluntarily or involuntarily or by operation of law or regulation or in connection with any judgment, decree or order of any court or other authority or otherwise, howsoever):

 

10.1.1

Non-payment: the Borrower fails to pay any sum payable by it under any of the Loan Documents at the time, in the currency and in the manner stipulated in the Loan Documents (and so that, for this purpose, sums payable (i) under clause 4.1 shall be treated as having been paid at the stipulated time if (a) received by the Lender within five (5) days of the dates therein referred to and (b) such delay in receipt is caused by administrative or other delays or errors within the banking system and (ii) on demand shall be treated as having been paid at the stipulated time if paid within five (5) Banking Days of demand); or

 

31


10.1.2

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 Loan Documents (other than those referred to in clause 10.1.1 above) unless such breach or omission, in the reasonable opinion of the Lender is capable of remedy, in which case the same shall constitute an Event of Default if it has not been remedied within thirty (30) Banking Days of the Lender giving written notice to the Borrower of, or the Borrower becoming aware of the occurrence thereof; or

 

10.1.3

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 Loan Documents or in any notice, certificate or statement referred to in or delivered under any of the Loan Documents is or proves to have been incorrect or misleading in any material respect unless the circumstances giving rise to the misrepresentation are in the reasonable opinion of the Lender capable of remedy and are remedied within thirty (30) Banking Days of the Lender giving written notice to the Borrower of, or the Borrower becoming aware of, the occurrence thereof; or

 

10.1.4

Cross-default: any Indebtedness of the Borrower (which is not intra group or subordinated debt) in excess of USD10,000,000 is not paid when due (subject to applicable grace periods) or any Indebtedness of the Borrower becomes (whether by declaration or automatically in accordance with the relevant agreement or instrument constituting the same) due and payable prior to the date when it would otherwise have become due (unless as a result of the exercise by the Borrower of a voluntary right of prepayment), or any creditor of the Borrower becomes entitled to declare any such Indebtedness due and payable or any facility or commitment available to the Borrower relating to Indebtedness is withdrawn, suspended or cancelled by reason of any default (however described) of the person concerned (unless the relevant creditor has granted to the Borrower a waiver in respect thereof); or

 

10.1.5

Execution: any uninsured judgment or order made against the Borrower in an amount in excess of USD30,000,000 is not stayed, appealed against or complied with within twenty (20) days or a creditor attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced upon or sued out against, any of the undertakings, assets, rights or revenues of the Borrower and is not discharged within thirty (30) days; or

 

32


10.1.6 

Insolvency: the Borrower is unable or admits inability to pay its debts as they fall due; suspends making payments on all or substantially all of its debts or announces an intention to do so; becomes insolvent; or suffers the declaration of a moratorium in respect of all or substantially all of its Indebtedness; or

 

10.1.7 

Dissolution: any corporate action, Proceedings or other steps are taken to dissolve or wind-up the Borrower or an order is made or resolution passed for the dissolution or winding up of the Borrower; or

 

10.1.8 

Administration: any petition is presented, notice given or other steps are taken anywhere to appoint an administrator of any Security Party or an administration order is made in relation to any Security Party; or

 

10.1.9 

Appointment of receivers and managers: any administrative or other receiver is appointed anywhere of any Security Party or any part of its assets and/or undertaking or any other steps are taken to enforce any Encumbrance over all or any part of the assets of any Security Party; or

 

10.1.10 

Compositions: any corporate action, legal proceedings or other procedures are taken, by the Borrower or by any of its creditors with a view to the general readjustment or rescheduling of all or substantially all of its Indebtedness, or to proposing any kind of composition, compromise or arrangement involving such company and all or substantially all of its creditors; or

 

10.1.11 

Analogous proceedings: there occurs, in relation to a Security Party, in any country or territory in which it carries on business or to the jurisdiction of whose courts any part of its assets is subject, any event which, in the reasonable opinion of the Lender, appears in that country or territory to correspond with, or have an effect equivalent or similar to, any of those mentioned in clauses 10.1.6 to 10.1.10 (inclusive) in respect of the Borrower or the Borrower otherwise becomes subject, in any such country or territory, to the operation of any law relating to insolvency, bankruptcy or liquidation; or

 

10.1.12 

Cessation of business: any Security Party suspends or ceases to carry on its business; or

 

10.1.13 

Seizure: all or a material part of the undertaking, assets, rights or revenues of, or shares or other ownership interests in, the Borrower are seized, nationalised, expropriated or compulsorily acquired by or under the authority of any government entity; or

 

33


10.1.14 

Invalidity: any of the Loan Documents shall, other than as a result of any act or omission of the Lender, 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 Loan Documents shall at any time and for any reason be contested by any Security Party which is a party thereto, or if any Security Party shall deny that it has any, or any further, liability thereunder; or

 

10.1.15 

Unlawfulness: any Unlawfulness occurs or 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 Loan Documents or for the Lender to exercise the rights or any of them vested in it under any of the Loan Documents or otherwise; or

 

10.1.16 

Repudiation: any Security Party repudiates any of the Security Documents or does or causes or permits to be done any act or thing evidencing an intention to repudiate any of the Security Documents; or

 

10.1.17 

Encumbrances enforceable: any Encumbrance (other than Permitted Encumbrances) in respect of any of the property (or part thereof) which is the subject of any of the Security Documents becomes enforceable; or

 

10.1.18 

Material events: any other event occurs or circumstance arises which, in the reasonable opinion of the Lender, is likely to have a Material Adverse Effect or, if such event or circumstance is capable of remedy it is not remedied within 15 Banking Days of the earlier of (i) the Lender notifying the Borrower of such event or (ii) the Borrower becoming aware of the same; or

 

10.1.19 

Litigation: any Proceedings are current, pending or threatened against any of the Security Parties which could have a Material Adverse Effect; or

 

10.1.20 

Required Authorisations: any Required Authorisation is revoked or withheld or modified or is otherwise not granted or fails to remain in full force and effect or if any exchange control or other law or regulation shall exist which would make any transaction under the Loan Documents or the continuation thereof, unlawful or would prevent the performance by any Security Party of any term of any of the Loan Documents;

 

10.1.21 

Change of Control: without the prior written consent of the Lender, the Designated Shareholders fail to, either individually or together, be the ultimate beneficial owner(s) of, or have ultimate control of the voting rights attaching to, at least 10 per cent of all of the outstanding voting shares in the Borrower (other than as a result of a sale by the Designated Shareholders) (a “Change of Control”);

 

34


10.1.22 

Money Laundering: any Security Party is in breach of or fails to observe any law, requirement, measure or procedure implemented to combat “money laundering” as defined in Article 1 of the Directive (91/308 EEC) of the Council of the European Communities.

 

10.2

Acceleration

The Lender may, without prejudice to any other rights of the Lender, at any time after the occurrence of an Event of Default so long as the same is continuing by notice to the Borrower:

 

10.2.1

declare that the obligation of the Lender to make the Commitment available shall be terminated, whereupon the Commitment shall immediately be cancelled; and/or

 

10.2.2

declare that the Loan and all interest accrued and all other sums payable whensoever under the Loan Documents have become due and payable, whereupon the same shall, immediately or in otherwise accordance with the terms of such notice, become due and payable; and/or

 

10.2.3 

exercise any or all of its rights, remedies, powers or discretions under the Loan Documents.

 

10.3

Payments on Acceleration

in respect of any payment made under or pursuant to Clause 10.2, Clause 4.4.3 applies.

 

10.4

Demand basis

If, under clause 10.2.2, the Lender has declared the Loan to be due and payable on demand, at any time thereafter the Lender may by further notice to the Borrower demand repayment of the Loan on such date as may be specified whereupon the Loan shall become due and payable accordingly with all interest accrued and all other sums payable under this Agreement.

 

11

INDEMNITIES

 

11.1

General indemnity

The Borrower agrees to indemnify the Lender on demand, without prejudice to any of the Lender’s other rights under any of the Loan Documents, against any loss (including loss of interest), cost or expense which the Lender shall certify as sustained at any time by it in connection with this Agreement, including (without limitation) any such loss, cost or expense

 

35


arising from any action, claim, suit or proceeding directly or indirectly related to this Agreement, the other Loan Documents or the Loan (excluding any default by the Lender determined by a court of competent jurisdiction to have resulted from (i) the gross negligence, bad faith or wilful misconduct of the Lender or (ii) a material breach of the Loan Documents by the Lender).

 

12

UNLAWFULNESS AND INCREASED COST MITIGATION

 

12.1

Unlawfulness

Regardless of any other provision of this Agreement, in the event that the Lender notifies the Borrower that by reason of:

 

(a)

the introduction of or any change in any applicable law or regulation or any change in the interpretation or application thereof; or

 

(b)

compliance by the Lender with any directive, request or requirement (whether or not having the force of law) of any central bank or government entity

it becomes unlawful or it is prohibited by or contrary to such directive request or requirement for the Lender to maintain or give effect to any of its obligations in connection howsoever with this Agreement then (i) the Commitment shall be reduced to zero and (ii) the Borrower shall be obliged to prepay the Loan either immediately or on a future date (specified in the Lender’s notice) not being earlier than the latest date permitted by the relevant law, regulation, directive, request or requirement with interest and commitment commission accrued to the date of prepayment and all other sums payable whensoever by the Borrower under this Agreement.

 

12.2

Increased costs

If the Lender certifies to the Borrower that at any time the effect of any applicable law, regulation or regulatory requirements or the interpretation or application thereof or any change therein is to:

 

12.2.1

subject the Lender to Taxes or change the basis of Taxation of the Lender relating to any payment under any of the Loan Documents (other than Taxes or Taxation on the overall net income of the Lender imposed in the jurisdiction in which its principal or lending office under this Agreement is located); and/or

 

36


12.2.2

increase the cost to, or impose an additional cost on, the Lender in making or keeping the Commitment available or maintaining or funding all or part of the Loan; and/or

 

12.2.3

reduce the amount payable or the effective return to the Lender under any of the Loan Documents; and/or

 

12.2.4

require the Lender to make a payment or forgo a return on or calculated by reference to any amount received or receivable by the Lender under any of the Loan Documents; and/or

then and in each such case (subject to clause 12.3) the Borrower must on demand either:

 

  (a)

pay to the Lender the amount which the Lender certifies (in a certificate setting forth 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 for such liability to Taxes, cost, reduction, payment, forgone return or loss; or

 

(b)

prepay the Loan, in respect of which prepayment the terms of clause 4.3 shall apply.

 

12.3

Exception

Nothing in clause 12.2 shall entitle the Lender to receive any amount relating to compensation for any such liability to Taxes, increased or additional cost, reduction, payment, foregone return or loss to the extent that the same is the subject of an additional payment under clause 5.3, 5.4 or 6.5.

 

13

SECURITY, SET-OFF AND MISCELLANEOUS

 

13.1

Application of moneys

All moneys received by the Lender under or pursuant to any of the Loan Documents and expressed to be applicable in accordance with the provisions of this clause 13.1 shall be applied by the Lender as follows:

 

13.1.1

first in or toward payment of all unpaid expenses, sums which have been demanded by way of indemnity and expenses which may be owing to the Lender under any of the Loan Documents;

 

13.1.2

secondly in or towards payment of any arrears of interest owing in respect of the Loan or any part thereof;

 

13.1.3

thirdly in or towards repayment of the Loan (whether the same is due and payable or not);

 

37


13.1.4

fourthly in or towards payment to the Lender of any other sums which the Lender certifies are owing to it under any of the Loan Documents; and

 

13.1.5

fifthly the surplus (if any) shall be paid to the Borrower.

 

13.2

Further assurance

The Borrower will, at its expense, execute, sign, perfect and do, and will procure the execution, signing, perfecting and doing by each of the other Security Parties of, any and every such further assurance, document, act or thing as in the reasonable opinion of the Lender may be necessary or desirable for perfecting the security contemplated or constituted by the Loan Documents.

 

13.3

Conflicts

In the event of any conflict between this Agreement and any of the other Loan Documents executed by the Borrower, the provisions of this Agreement shall prevail.

 

13.4

No implied waivers, remedies cumulative

No failure or delay on the part of the Lender to exercise any power, right or remedy under any of the Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise by the Lender of any power, right or remedy preclude any other or further exercise thereof or the exercise of any other power, right or remedy. The remedies provided in the Loan Documents are cumulative and are not exclusive of any remedies provided by law. No waiver by the Lender shall be effective unless it is in writing.

 

13.5

Severability

If any provision of this Agreement is prohibited, invalid, illegal or unenforceable in any jurisdiction, such prohibition, invalidity, illegality or unenforceability shall not affect or impair howsoever the remaining provisions thereof or affect the validity, legality or enforceability of such provision in any other jurisdiction.

 

13.6

Force Majeure

Regardless of any other provision of this Agreement the Lender shall not be liable for any failure to perform the whole or any part of this Agreement resulting directly or indirectly from (i) the action or inaction or purported action of any governmental or local authority, (ii) any strike,

 

38


lockout, boycott or blockade (including any strike, lockout, boycott or blockade effected by or upon the Lender or any of its representatives or employees), (iii) any act of God, (iv) any act of war (whether declared or not) or terrorism, (v) any failure of any information technology or other operational systems or equipment affecting the Lender or (vi) any other circumstances whatsoever outside the Lender’s control; provided that, the foregoing shall not apply to any failure to fund the Advances on or prior to Second Secured Indenture Repayment Date.

 

13.7

Amendments

This Agreement may be amended or varied only by an instrument in writing executed by both parties hereto who irrevocably agree that the provisions of this clause 13.7 may not be waived or modified except by an instrument in writing to that effect signed by both of them.

 

13.8

Counterparts

This Agreement may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement which may be sufficiently evidenced by one counterpart.

 

13.9

English language

All documents required to be delivered under and/or supplied whensoever in connection howsoever with any of the Loan Documents and all notices, communications, information and other written material whatsoever given or provided in connection howsoever therewith must either be in the English language or accompanied by an English translation certified by a notary, lawyer or consulate acceptable to the Lender.

 

14

ASSIGNMENT, TRANSFER AND DISCLOSURE

 

14.1

Benefit and burden

This Agreement shall be binding upon, and ensure for the benefit of, the Lender and the Borrower and their respective successors.

 

14.2

No assignment by Borrower

The Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Lender. Neither the Borrower nor any affiliate of the Borrower may become a Lender or a sub-participant.

 

39


14.3

Assignment by Lender

The Lender may not assign, sell or sub-participate all or any part of its rights under any Loan Document except (i) to a wholly-owned Subsidiary or controlled (or under common control) affiliate of the Lender, (ii) during the occurrence of an Event of Default, to any Subsidiary or affiliate of the Lender or (iii) with the prior written consent of the Borrower. The Lender, acting solely for this purpose as an agent of the Borrower, shall maintain a register for the recordation of the names and addresses of any such assignee or participant of the Lender, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each such assignee or participant pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Lender, and any such assignee or participant of Lender shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, the Lender and any such assignee or participant of the Lender, at any reasonable time and from time to time upon reasonable prior notice. It is the intention that this Agreement be treated as a registered obligation and in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code of 1986, as amended, and the United States Treasury Regulations thereunder.

 

14.4

Disclosure of information

The Lender may disclose to a prospective assignee, transferee or to any other person who may propose entering into contractual relations with the Lender in relation to this Agreement such information about or in connection with any of the Security Parties and the Loan Documents as the Lender considers appropriate, provided that the Lender shall consult with the Borrower prior to disclosing (i) any such information which is not public or contained in the Agreement and/or (ii) any documentation other that a copy of this Agreement or any other Security Document.

 

15

NOTICES

 

15.1

General

 

15.1.1

unless otherwise specifically provided herein, every notice under or in connection with this Agreement shall be given in English by letter delivered personally and/or sent by post and/or transmitted by email;

 

40


15.1.2 

in this clause “notice” includes any demand, consent, authorisation, approval, instruction, certificate, request, waiver or other communication.

 

15.2

Addresses for communications, effective date of notices

 

15.2.1 

Subject to clause 15.2.2 notices to the Borrower shall be deemed to have been given and shall take effect when received in full legible form by the Borrower at the address and/or the email address appearing below (or at such other address or email address as the Borrower may hereafter specify for such purpose to the Lender by notice in writing);

Address:    Strathvale House, 90 N Church Street,

P.O. Box 309, Grand Cayman,

KY1-1104 Cayman Islands

email address:     lwebster@navios.com

notwithstanding the provisions of this clause 15.2.1, a notice of Default and/or a notice given pursuant to clause 10.2 shall be deemed to have been given and shall take effect when delivered, sent or transmitted by the Lender to the Borrower to the address or email address referred to in this clause 15.2.1;

 

15.2.2 

notices to the Lender shall be deemed to be given, and shall take effect, when received in full legible form by the Lender at the address and/or the email address appearing below (or at any such other address or email address as the Lender may hereafter specify for such purpose to the Borrower by notice in writing);

Address: Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH 96960, Marshall Islands

e-mail: nsmfinance@navios.com

if under clause 15.2.1 or this clause 15.2.2 a notice would be deemed to have been given and effective on a day which is not a working day in the place of receipt or is outside the normal business hours in the place of receipt, the notice shall be deemed to have been given and to have taken effect at the opening of business on the next working day in such place.

 

41


16

GOVERNING LAW

 

16.1

Law

This Agreement and any non-contractual obligations arising out of or in connection with it is governed by and shall be construed in accordance with English law.

 

17

JURISDICTION

 

17.1

Exclusive jurisdiction

Subject to clause 17.4 below, the Borrower and the Lender hereby irrevocably agree that the courts of England shall have exclusive jurisdiction:

 

17.1.1

to settle any disputes or other matters whatsoever arising under or in connection with this Agreement (or any non-contractual obligation arising out of or in connection with this Agreement) and any disputes or other such matters arising in connection with the negotiation, validity or enforceability of this Agreement or any part thereof, whether the alleged liability shall arise under the laws of England or under the laws of some other country and regardless of whether a particular cause of action may successfully be brought in the English courts; and

 

17.1.2

to grant interim remedies or other provisional or protective relief.

 

17.2

Submission and service of process

Subject to clause 17.4 below, the Borrower and the Lender accordingly irrevocably and unconditionally submit to the jurisdiction of the English courts. Without prejudice to any other mode of service the Borrower:

 

17.2.1

irrevocably empowers and appoints Messrs Hill Dickinson Services (London) Ltd at present of The Broadgate Tower, 20 Primrose Street, London, EC2A 2EW, England as its agent to receive and accept on its behalf any process or other document relating to any proceedings before the English courts in connection with this Agreement;

 

17.2.2

agrees to maintain such an agent for service of process in England from the date hereof until the end of the Facility Period;

 

17.2.3

agrees that failure by a process agent to notify the Borrower of service of process will not invalidate the proceedings concerned;

 

17.2.4

without prejudice to the effectiveness of service of process on its agent under clause 17.2.1 above but as an alternative method, consents to the service of process relating to any such proceedings by mailing or delivering a copy of the process to its address for the time being applying under clause 15.2;

 

42


17.2.5

agrees that if the appointment of any person mentioned in clause 17.2.1 ceases to be effective, the Borrower shall immediately appoint a further person in England to accept service of process on its behalf in England and, failing such appointment with in seven (7) days the Lender shall thereupon be entitled and is hereby irrevocably authorised by the Borrower in those circumstances to appoint such person by notice to the Borrower.

 

17.3

Forum non conveniens and enforcement abroad

The Borrower and the Lender:

 

17.3.1

waive any right and agree not to apply to the English court or other court in any jurisdiction whatsoever to stay or strike out any proceedings commenced in England on the ground that England is an inappropriate forum and/or that proceedings have been or will be started in any other jurisdiction in connection with any dispute or related matter falling within clause 17.1; and

 

17.3.2

agree that a final non-appealable judgment or order of an English court in a dispute or other matter falling within clause 17.1 shall be conclusive and binding on the Borrower and the Lender and may be enforced against them in the courts of any other jurisdiction.

 

17.4

Right of Lender, but not Borrower, to bring proceedings in any other jurisdiction

 

17.4.1

nothing in this clause 17 limits the right of the Lender to bring proceedings in connection with the enforcement of its security, or the enforcement or recovery of any judgment debt or judicial award or order made (i) in each case, in the courts of England and (ii) under or in relation to this Agreement or any Security Document, including third party proceedings, against the Borrower, or to apply for interim remedies, in any other court and/or concurrently in more than one jurisdiction; and

 

17.4.2

the obtaining by the Lender of judgment in one jurisdiction shall not prevent the Lender from bringing or continuing proceedings in any other jurisdiction proceedings in connection with the enforcement of its security, or the enforcement or recovery of any judgment debt or judicial award or order made (i) in each case, in the courts of England and (ii) under or in relation to this Agreement or any Security Document, whether or not these shall be founded on the same cause of action.

 

43


IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed on the date first above written.

 

44


Execution page

BORROWER

 

SIGNED by /s/ George Achniotis, Chief Financial Officer    )
for and on behalf of    )
NAVIOS MARITIME HOLDINGS INC.    )
LENDER   
SIGNED by /s/ Sofia Tavla, Attorney-in-fact    )
for and on behalf of    )
NAVIOS SHIPMANAGEMENT   
HOLDINGS CORPORATION    )


Private and Confidential

Date 13 December 2021

NAVIOS MARITIME HOLDINGS INC. (1)

as Borrower

-and-

NAVIOS SHIPMANAGEMENT HOLDINGS CORPORATION (2)

as Lender

 

 

AMENDING AND RESTATING AGREEMENT RELATING TO A

LOAN AGREEMENT DATED 29 August 2019

 

 

in relation to a Loan Agreement

dated 29 August 2019

 

LOGO

PIRAEUS


Index

 

Clause        Page No  

1

  INTERPRETATION      2  

2

  AMENDMENTS      3  

3

  CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT      3  

4

  AMENDMENTS TO LOAN AGREEMENT AND OTHER SECURITY DOCUMENTS      4  

5

  FURTHER ASSURANCES      5  

6

  FEES AND EXPENSES      6  

7

  NOTICES      6  

8

  SUPPLEMENTAL      6  

9

  LAW AND JURISDICTION      6  


THIS AGREEMENT (this “Agreement”) is made on 13 December 2021

BETWEEN

 

(1)

NAVIOS MARITIME HOLDINGS INC., a corporation incorporated in the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960, as borrower (hereinafter called, the “Borrower”); and

 

(2)

NAVIOS SHIPMANAGEMENT HOLDINGS CORPORATION a corporation incorporated in the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960, as lender (hereinafter called, the “Lender”).

BACKGROUND

 

(A)

By a loan agreement dated 29 August 2019 (the “Original Loan Agreement”) and made between (1) the Borrower as borrower and (2) the Lender as lender, the Lender made available to the Borrower a term loan facility of up to US$125,000,000 upon the terms and for the purposes therein specified.

 

(B)

(1) As security for the Borrower’s obligations under the Original Loan Agreement the following (amongst others) security documents have been executed in favour of the Lender (the “Released Security Documents”):

 

  (a)

the Bareboat Owners’ Shares Pledges;

 

  (b)

the First Priority Charge over shares in Roselite Shipping Corporation;

 

  (c)

the First Priority Charge over shares in Vernazza Shiptrade Inc.;

 

  (d)

the Europe Receivables Pledge;

 

  (e)

the Shares Pledges over shares in Navios Maritime Acquisition Corporation; and

 

  (f)

the Assignment of Earnings and Insurances

each as defined in the Original Loan Agreement.

(2) As security for the Borrower’s obligations under the Original Loan Agreement, the following security documents have been executed in favour of the Lender and shall remain in full force and effect following the occurrence of the Effective Date to secure the obligations under the Amended and Restated Loan Agreement:

(a) the NMM Partnership Interests Pledge B;

(b) the NMM Partnership Interests Pledge C;

(c) the Guarantee

each as defined in the Original Loan Agreement.


(C)

The Borrower has requested that the Lender to give its consent to the following (together, the “Requests”):

(a) release of the Released Security Documents including the collateral granted under such Released Security Documents; and

(b) amendment of the Original Loan Agreement on the terms of the Amended and Restated Agreement (as hereinafter defined).

 

(D)

This Agreement sets out the terms and conditions on which the Lender agrees, with effect on and from the Effective Date (as hereinafter defined), to the requests of the Borrower set out in Recital (C) and to the consequential amendments to the Original Loan Agreement.

IT IS AGREED as follows:

 

1

INTERPRETATION

 

1.1

Defined expressions. Words and expressions defined in the Amended and Restated Loan Agreement shall have the same meaning when used in this Agreement unless the context otherwise requires.

 

1.2

Definitions. In this Agreement, unless the contrary intention appears:

“Amended and Restated Loan Agreement” means the Original Loan Agreement, as amended and restated by this Agreement, the terms of which are set out in the Appendix (Amended and Restated Loan Agreement).

Effective Date” means the first Banking Day on which all the conditions precedent referred to in Clause 3.1 have been fulfilled by the Borrower.

New Facility Agreements” means together (a) a facility agreement made or to be made between (i) the Borrower (as borrower) and (ii) HCOB (as lender) for a loan of up to $105,000,000 and (b) one facility agreement made or to be made between (amongst others) (i) the Borrower (as borrower) and (ii) CACIB/BNP (as lender) for a loan of up to $105,000,000 and in the singular means any of them and (c) (x) an amending and restating agreement in respect of a loan agreement dated 29 June 2021 made between (i) the Borrower as borrower and (ii) the Lender as lender and (y) the loan agreement amended and restated thereby, in respect of a term loan facility of up to US$135,000,000.

Released Parties” means together, the parties other than the Lender to the Released Security Documents and in the singular means any one of them.

 

1.3

Incorporation of defined terms

 

(a)

Unless a contrary indication appears, a term defined in the Amended and Restated Loan Agreement, any Released Security Document or Security Document has the same meaning in this Agreement.

 

(b)

The principles of construction set out in the Amended and Restated Loan Agreement shall have effect as if set out in this Agreement.

 

1.4

Clauses

 

2


(a)

In this Agreement any reference to a “Clause” or “Appendix” is, unless the context otherwise requires, a reference to a Clause or the Appendix of this Agreement.

 

(b)

Clause and Appendix headings are for ease of reference only.

 

1.5

Third Party Rights

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement except with respect to Section 4.2.

 

1.6

Designation

This Agreement is a Loan Document under the Amended and Restated Loan Agreement.

 

2

AMENDMENTS

With effect from the Effective Date the Original Loan Agreement shall be amended and restated so that it shall be read and construed for all purposes as set out in the Appendix (Amended and Restated Loan Agreement).

 

3

CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUEBT

 

3.1

Conditions Precedent. The conditions referred to in the definition of “Effective Date” are that the Lender shall have received the following:

 

3.1.1

Corporate documents

a certificate from a duly authorised officer of Alpha Merit and the Borrower confirming that, as of the Effective Date, none of the documents delivered to the Lender pursuant to paragraph (a) of schedule 2 of the Original Loan Agreement have been amended or modified in any way since the date of their delivery to the Lender, or in the alternative copies thereof, certified by a duly authorised officer of Alpha Merit and, as the case may be, the Borrower as true, complete, accurate and neither amended nor revoked, of any documents which have been amended or modified;

 

3.1.2

Corporate authorities

 

(a)

a list of directors and officers of each Security Party , specifying the names and positions of such persons, containing specimen signatures of each director and officer, certified by an officer of the relevant Security Party to be true, complete and up to date as of the Effective Date;

 

(b)

copies of resolutions of the directors of each Security Party approving this Agreement or, as the case may be, the NMM Partnership Interests Pledge C, the Convertible Debenture and/or the endorsement at the end of this Agreement, as applicable, and authorising the execution and delivery hereof and performance of such Security Party’s obligations hereunder or thereunder, certified by an officer of the relevant Security Party as having been duly passed at a duly convened meeting of its directors and shareholders of, and not having been amended, modified or revoked and being in full force and effect;

 

(c)

an original of any power of attorney issued by each Security Party pursuant to such resolutions stated above;

 

3


3.1.3

NMM Partnership Interests Pledge C

NMM Partnership Interests Pledge C duly executed by Alpha Merit, together with all documents required to be delivered pursuant to the terms thereof;

 

3.1.4

Endorsement

the endorsement at the end of this Agreement signed by each Security Party (other than the Borrower);

 

3.1.5

Required Authorizations

a certificate issued by the Borrower that there are no Required Authorizations or that there are no Required Authorisations except those described in such certificate which have been duly obtained and certified copies of which (including any documents ancillary thereto) are appended thereto;

 

3.1.6

Convertible Debenture

duly executed and delivered copies of the Convertible Debenture;

 

3.1.7

New Facility Agreements

copies of the New Facility Agreements;

 

3.1.8

Representations and Warranties

a certificate issued by the Borrower certifying that the representations and warranties in Clause 7 of the Amended and Restated Loan Agreement, updated with appropriate modifications to refer to this Agreement, remain true and not misleading (giving effect to any materiality qualifiers set forth therein) if repeated on the date of this Agreement with reference to the circumstances now existing.

 

3.2

Condition Subsequent. The Borrower shall deliver or cause to be delivered to the Lender on, or as soon as practicable after, the Effective Date, documentary evidence that the agent for service of process named in Clause 18.2.1 of the Original Loan Agreement or another agent for service of process reasonably acceptable to the Lender has accepted its appointment in respect of the Amended and Restated Loan Agreement and the other Loan Documents

 

4

AMENDMENTS TO LOAN AGREEMENT AND OTHER SECURITY DOCUMENTS

 

4.1

Security Documents. With effect on and from the Effective Date each of the Security Documents shall be, and shall be deemed by this Agreement to be, amended so that the definition of, and references throughout each of the Security Documents to, the Original Loan Agreement and any of the other Security Documents shall be construed as if the same referred to the Amended and Restated Loan Agreement and those Security Documents as amended and supplemented by this Agreement.

The Security Documents shall remain in full force and effect as security for the Outstanding Indebtedness (as defined therein), as amended and supplemented by such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.

 

4


4.2

Release of Released Parties

With effect on and from the Effective Date and without prejudice to the obligations of the Borrower under the Loan Agreement the Lender hereby:

 

  (a)

releases and discharges each Released Party from all its obligations under the Released Security Documents and terminates the Released Security Documents with the exception of any indemnities contained in any of the Released Security Documents which are expressly stated to survive;

 

  (b)

reassigns and releases to each Released Party all its right, title and interest in, to and under all the property granted or assigned to the Lender or charged in favour of the Lender under the Released Security Documents including, without limitation, any insurances and the proceeds thereof; and

 

  (c)

agrees to, at the Borrower’s expense, execute, sign, and do any and every such further notice, assurance, document, act or thing as may be necessary or desirable to evidence the release contemplated or constituted by this Section 4.2.

The Lender makes and gives no representation, warranty or covenant in relation to the property reassigned herein except that they have not assigned, charged or granted another security interest in respect of that property.

 

5

FURTHER ASSURANCES

 

5.1

Borrower to execute further documents etc. The Borrower shall:

 

  (a)

execute and deliver to the Lender (or as it may direct) any assignment, mortgage, power of attorney, proxy or other document, governed by the law of England or such other country as the Lender may, in any particular case, reasonably specify; and

 

  (b)

effect any registration or notarisation, give any notice or take any other step, which the Lender may, by notice to the Borrower or other party, reasonably specify

for any of the purposes described in Clause 5.2 or for any similar or related purpose.

 

5.2

Purposes of further assurances. Those purposes are:

 

  (a)

validly and effectively to create any security interest or right of any kind which the Lender intended should be created by or pursuant to the Amended and Restated Loan Agreement or any other Security Document, each as amended and supplemented by this Agreement; and

 

  (b)

implementing the terms and provisions of this Agreement.

 

5.3

Obligation to comply with notice. The Borrower shall comply with a notice under Clause 5.1 by the date reasonably specified in the notice (or such later date as agreed to in writing by the Lender).

 

5.4

Additional corporate action. At the same time as the Borrower or any other party deliver to the Lender any document executed under Clause 5.1(a), the Borrower or such other party shall also deliver to the Lender a certificate signed by the Borrower’s directors, or 2 of that other party’s directors which shall:

 

5


  (a)

set out the text of resolutions of the Borrower or that other party’s directors specifically authorising the execution of the document specified by the Lender; and

 

  (b)

state that either the resolution was duly passed at a meeting of the directors validly convened and held throughout which a quorum of directors entitled to vote on the resolution was present or that the resolution has been signed by all the directors and is valid under the Borrower’s or that other party’s articles of association or other constitutional documents.

 

6

FEES AND EXPENSES

 

6.1

Fees and Expenses. The provisions of Clause 5 (Fees and expenses) of the Amended and Restated Loan Agreement shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.

 

7

NOTICES

General. The provisions of Clause 16 (Notices) of the Amended and Restated Loan Agreement shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.

 

8

SUPPLEMENTAL

 

8.1

Counterparts. This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

 

9

LAW AND JURISDICTION

Application of the Amended and Restated Loan Agreement provisions.    This Agreement and any non-contractual obligations arising out of or in connection with it is governed by and shall be construed in accordance with English law. The provisions of Clause 18 (Jurisdiction) of the Amended and Restated Loan Agreement shall apply to this Agreement as if they were expressly set out in this Agreement with any necessary modifications.

IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed as a deed on the date first above written.

 

6


THE BORROWER

 

SIGNED and delivered as a Deed    )
by /s/ Georgios Achniotis    )
for and on behalf of    )
NAVIOS MARITIME HOLDINGS INC.    )
as attorney-in-fact    )
Witnessed by:   
Signature /s/ Maria Trivela   
Name: Maria Trivela   
Address: Akti Miaouli 85, Piraeus   
THE LENDER   
SIGNED and delivered as a Deed by    )
and by /s/ Sofia Tavla    )
for and on behalf of    )
NAVIOS SHIPMANAGEMENT    )
HOLDINGS CORPORATION    )
Witnessed by:   
Signature /s/ Maria Trivela   
Name: Maria Trivela   
Address: Akti Miaouli 85, Piraus   
EX-99.2

Exhibit 99.2

DATED 29 June 2021

as amended and restated

on        November 2021

NAVIOS MARITIME HOLDINGS INC.

as borrower

and

NAVIOS SHIPMANAGEMENT HOLDINGS CORPORATION

as lender

 

 

SECURED LOAN AGREEMENT

for a loan of up to USD135,000,000

in one or more advances

 

 


Index

 

Clause        Page  

1

  Purpose and definitions      1  

2

  The Lender’s Commitment, Loan and Use of Proceeds      12  

3

  Interest      14  

4

  Repayment and prepayment      15  

5

  Fees and expenses      17  

6

  Payments and taxes; Accounts and calculations      18  

7

  Representations And Warranties      22  

8

  Undertakings      26  

9

  Conditions      31  

10

  Events of Default      32  

11

  Indemnities      36  

12

  Unlawfulness and increased cost mitigation      36  

13

  Security, set-off and miscellaneous      38  

14

  Assignment, transfer and disclosure      40  

15

  Notices      41  

16

  Governing law      42  

17

  Jurisdiction      42  

Schedule 1

       48  

Schedule 2

       49  

Schedule 3

       52  

Schedule 4

       53  

 

1


THIS LOAN AGREEMENT (this “Agreement”) is dated 29 June 2021 and amended and restated on November 2021 and made BETWEEN:

 

(1)

NAVIOS MARITIME HOLDINGS INC. as Borrower; and

 

(2)

NAVIOS SHIPMANAGEMENT HOLDINGS CORPORATION as Lender.

IT IS AGREED as follows:

 

1

PURPOSE AND DEFINITIONS

 

1.1

Purpose

This Agreement sets out the terms and conditions upon which the Lender agrees to make available to the Borrower a loan facility of USD135,000,000 (subject to adjustment as provided for in clause 2.2) in connection with the refinancing of certain obligations.

 

1.2

Definitions

In this Agreement, unless the context otherwise requires:

Advance A” means the amount of USD64,058,823 made available by the Lender to the Borrower prior to the Effective Date;

Advance” means the amount of any advance made or to be made available by the Lender to the Borrower on or after the Effective Date in accordance with the terms of this Agreement in an aggregate amount of up to USD70,941,177;

“Alpha Merit” means Alpha Merit Corporation, a company incorporated in the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960;

Amending and Restating Agreement” means that Amending and Restating Agreement supplemental to this Agreement dated         November 2021, made by and between the Borrower and the Lender;

Applicable Premium” means the excess of (A) the present value at such time of (i) 110% of the principal amount so prepaid, assuming payment thereof on the 18 month anniversary of the Effective Date plus (ii) all remaining interest payments due (calculated at a rate 18% per annum, if the prepayment occurs prior to the Second Secured Indenture Repayment Date; and

 

1


16.5% per annum if the prepayment occurs on or after the Second Secured Indenture Repayment Date) on the amount so prepaid through and including the 18 month anniversary of the Effective Date (excluding any interest accrued to the date of such prepayment), computed using a discount rate equal to the Applicable Treasury Rate, plus 0.50%, over (B) the principal amount so prepaid on the date of prepayment;

Applicable Treasury Rate” means the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Banking Days prior to such date of prepayment (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date of redemption to the 18 month anniversary of the Effective Date; provided, however, that if the period from the date of prepayment to such date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given having maturities as close as possible to the date that is the 18 month anniversary of the Effective Date;

Banking Day” means a day on which dealings in deposits in USD are carried on in the London Interbank Eurocurrency Market and a day (other than Saturday or Sunday) on which banks are open for general business in London, Piraeus, Hamburg and New York City;

“Borrowed Money” means Indebtedness in respect of (i) money borrowed and debit balances at banks, (ii) any bond, note, loan stock, debenture or similar debt instrument, (iii) acceptance or documentary credit facilities, (iv) receivables sold or discounted (otherwise than on a non-recourse basis), (v) deferred payments for assets or services acquired, (vi) finance leases and hire purchase contracts, (vii) swaps, forward exchange contracts, futures and other derivatives, (viii) any other transaction (including without limitation forward sale or purchase agreements) having the commercial effect of a borrowing or of any of (ii) to (vii) above and (ix) guarantees in respect of Indebtedness of any person falling within any of (i) to (viii) above;

 

2


Borrower” means Navios Maritime Holdings Inc. a company incorporated in the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

Certified Copy” means in relation to any document delivered or issued by or on behalf of any company, a copy of such document certified as a true, complete and up to date copy of the original by any of the directors or officers for the time being of such company or by such company’s attorneys or solicitors;

Collateral” means the collateral subject to the Security Documents other than the Guarantees and any other Encumbrance provided to the Lender from time to time as security for the Loan;

Commitment” means, in relation to the Loan, the maximum amount which the Lender has agreed to lend to the Borrower under clause 2.1 as reduced by any relevant term of this Agreement;

Compliance Certificate” means a certificate substantially in the form set out in schedule 3 signed by a director of the Borrower;

Convertible Debenture” means the Convertible Debenture issued by the Borrower in favour of the Lender as of the date hereof ;

Default” means any Event of Default or any event or circumstance which with the giving of notice or lapse of time or the satisfaction of any other condition (or any combination thereof) would constitute an Event of Default;

“Designated Shareholder” means Mrs. Angeliki Frangou either directly or indirectly (through entities owned and controlled by her or trusts or foundations of which she is the beneficiary);

Dollars” and “USD” mean the lawful currency of the USA and in respect of all payments to be made under any of the Loan Documents means funds which are for same day settlement in the New York Clearing House Interbank Payments System (or such other US dollar funds as may at the relevant time be customary for the settlement of international banking transactions denominated in US dollars);

Drawdown Date” means, in respect of an Advance, any date being a Banking Day on which that Advance is, or is to be, made available;

Drawdown Notice” means in relation to each Advance a notice substantially in the form of Schedule 4;

Effective Date” has the meaning given thereto in the Amending and Restating Agreement;

 

3


Encumbrance” means any mortgage, charge, pledge, lien, hypothecation, assignment, title retention, preferential right, option, trust arrangement or security interest or any other encumbrance, security or arrangement conferring howsoever a priority of payment in respect of any obligation of any person;

Event of Default” means any of the events or circumstances listed in clause 10.1;

Facility Period” means the period starting as of the date hereof and ending on such date as all payment obligations whatsoever of the Borrower under or pursuant to the Loan Documents whensoever arising, actual or contingent, have been irrevocably paid;

FATCA” means:

 

  (a)

sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended, 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;

FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA;

FATCA Exempt Party” means a party that is entitled to receive payments free from any FATCA Deduction;

Fee Letter” means the fee letter dated as of the Effective Date addressed by the Borrower to the Lender in respect of fees payable by the Borrower in relation to, among other things, this Agreement;

“Final Repayment Date” means the fourth anniversary of the Effective Date or such later date requested by the Borrower as the Lender may agree in its absolute discretion on which the Loan must be repaid in full;

Financial Indebtedness” means, in relation to a person (the “debtor”), a liability of the debtor:

 

4


  (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, debenture, note or other security issued by the debtor (but excluding surety bonds, performance bonds or similar instruments except to the extent of a reimbursement obligation then outstanding);

 

  (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 agreement having the commercial effect of a borrowing or raising of money by the debtor;

 

  (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;

“GP LLC” means Navios GP LLC, a limited liability company formed and existing under the laws of the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

“GP LLC Interests Pledge” means the second priority pledge of all membership interests of and in GP LLC to be executed by the Borrower in favour of the Lender in such form as the Lender may require in its reasonable discretion;

“Group” means at any relevant time the Borrower and its Subsidiaries but not including any Subsidiary which is listed on any public stock exchange and any of its Subsidiaries;

Group Member” means any member of the Group;

Guarantee” means each of the guarantees granted by each of the Guarantors, in such form as the Lender may agree or require in its reasonable discretion (and which may be in the form of a joint and several guarantee), and in the plural means all of them;

Guarantor” means each of the companies listed in Schedule 1 and in the plural means all of them;

Indebtedness” means any obligation howsoever arising (whether present or future, actual or contingent, secured or unsecured, as principal, surety or otherwise) for the payment or repayment of money (but excluding surety bonds, performance bonds or similar instruments except to the extent of a reimbursement obligation then outstanding);

 

5


“Intercreditor Agreement” means an agreement between, among others, the Collateral Trustee and the Co-Issuers (each as defined in the Second Secured Indenture), the Lender and the Security Parties party to the Security Documents over assets which are also secured in favour of the said Collateral Trustee under first priority security;

“Latest Accounts” means, in respect of any financial year of the Borrower, the latest financial statements required to be prepared pursuant to clause 8.1.6;

“Legal Reservations” means:

 

  (a)

the principle that equitable remedies may be granted or refused at the discretion of a court, the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

 

  (b)

the time barring of claims under applicable limitation laws, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;

 

  (c)

any general principles, reservations or qualifications, in each case as to matters of law as set out in any legal opinion;

 

  (d)

the principle that any additional interest imposed under any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

 

  (e)

the principle that, in certain circumstances, security granted by way of fixed charge may be characterised as a floating charge or that security purported to be constituted by way of an assignment may be recharacterised as a charge;

 

  (f)

the principle that the courts of England may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant; and

 

  (g)

similar principles, rights and defences under the laws of any Pertinent Jurisdiction;

Lender” means Navios Shipmanagement Holdings Corporation, a corporation incorporated in the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

Loan” means the principal amount borrowed by the Borrower under this Agreement or (as the context may require) the principal amount owing to the Lender under this Agreement at any relevant time;

 

6


Loan Documents” means this Agreement, the Convertible Debenture, the Amending and Restating Agreement and the Security Documents;

“Material Adverse Effect” means, a material adverse effect on:

 

  (a)

the business, assets or financial condition of the Group (taken as a whole); or

 

  (b)

the ability of the Borrower to perform its obligations under the Loan Documents; or

 

  (c)

subject to the Legal Reservations and the Perfection Requirements, the validity or enforceability of, or the effectiveness or ranking of, any Encumbrance granted or purporting to be granted pursuant to any of the Security Documents;

Navios Logistics” means Navios South American Logistics Inc., a company incorporated in the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960.

Navios Logistics Shares Pledge” means a second priority pledge of the shares of and in Navios Logistics required to be executed hereunder by the Navios Logistics Shareholder in favour of the Lender, in such form as the Lender may agree or require in its sole discretion;

Navios Logistics Shareholder” means Navios Corporation a corporation organised and existing under the laws of the Republic of the Marshall Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960;

New Facility Agreements” has the meaning given thereto in the Amending and Restating Agreement;

NMM” means Navios Maritime Partners L.P. a limited partnership organised and existing under the laws of the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

NMM Partnership Interests Pledge A” means a second priority pledge of 1,070,491 common units of NMM required to be executed hereunder by Alpha Merit and GP LLC in favour of the Lender, in such form as the Lender may agree or require in its sole discretion;

 

7


NMM Partnership Interests Pledge B” means a second priority pledge of 2,070,216 common units of NMM required to be executed hereunder by Alpha Merit, and the Borrower in favour of the Lender, in such form as the Lender may agree or require in its sole discretion;

NMM Partnership Interests Pledge C” means a second priority pledge of 1,905 common units of NMM required to be executed hereunder by Alpha Merit in favour of the Lender, in such form as the Lender may agree or require in its sole discretion;

Permitted Encumbrance” means (i) any Encumbrance created pursuant to or expressly permitted by the Loan Documents or otherwise permitted by the Lender, (ii) any Encumbrance permitted by the terms of the New Facility Agreements, (iii) any lien arising by the operation of law, (iv) any Encumbrance existing as at the Effective Date in respect of any Financial Indebtedness, (v) any Encumbrance securing Financial Indebtedness permitted under clause 8.2.3 and (vi) such other Encumbrances as the Lender may consent to for the purposes of this definition;

Perfection Requirements” means the making or procuring of appropriate registrations, filings, endorsements, notarisations, stampings and/or notifications of the Security Documents and/or the security expressed to be created under the Security Documents determined by the legal advisers to the Lender to be necessary in any Pertinent Jurisdiction for the enforceability or production in evidence of the relevant Security Document to the extent such matters are complied with within any timeframe specified by law or the relevant Security Document;

Pertinent Jurisdiction” means any jurisdiction in which or where any Security Party is incorporated, resident, domiciled, has a permanent establishment or assets which are secured under the Security Documents;

Proceedings” means any litigation, arbitration, legal action or complaint or judicial, quasi-judicial or administrative proceedings whatsoever arising or instigated by anyone in any court, tribunal, public office or other forum whatsoever and wheresoever (including, without limitation, any action for provisional or permanent attachment of any thing or for injunctive remedies or interim relief and any action instigated on an ex parte basis);

Prohibited Person” means a person that is:

 

  (d)

listed on, or owned or controlled by a person listed on any Sanctions List;

 

8


  (e)

permanently located, organised or resident in, a country or territory that is the target of country-wide Sanctions; or

 

  (f)

otherwise a target of Sanctions.

Register” has the meaning specified in clause 14.3

Required Authorisation” means any authorisation, consent, declaration, licence, permit, exemption, approval or other document, whether imposed by or arising in connection with any law, regulation, custom, contract, security or otherwise howsoever which must be obtained at any time from any person, government entity or central bank or other self-regulating or supra-national authority in order to enable the Borrower lawfully to draw the Loan and/or to enable any Security Party lawfully and continuously to continue its corporate existence and/or perform all its obligations whatsoever whensoever arising under the Loan Documents and/or grant security under the Security Documents and/or to ensure the continuous validity and enforceability thereof;

Sanctions” means any economic or trade sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by:

 

  (g)

the United States government;

 

  (h)

the United Nations;

 

  (i)

the European Union or any of its Member States;

 

  (j)

the United Kingdom;

 

  (k)

any country to which any Security Party is bound; or

 

  (l)

the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty’s Treasury (“HMT”) (together “Sanctions Authorities”).

Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list issued by OFAC, the “Consolidated List of Financial Sanctions Targets and Investment Ban List” issued by HMT, or any similar list issued or maintained or made public by any of the Sanctions Authorities.

 

9


“Second Secured Indenture” means the Indenture dated as of 21 November 2017 for USD305,000,000 issued by the Borrower and Navios Maritime Finance II (US) Inc. for 11.25% Senior Secured Notes due on August 15, 2022, as amended and/or to be amended from time to time;

Second Secured Indenture Repayment Date” means the date on which all amounts due and payable under the Second Secured Indenture are repaid;

Securities Account” means an account in the name of the Borrower opened or to be opened with the Securities Account Bank or any other account (with that or another office of the Securities Account Bank or with a bank or financial institution other than the Securities Account Bank) which is designated by the Lender as the Securities Account for the purposes of this Agreement;

“Securities Account Bank” means UBS Financial Services Inc. or another bank or financial institution approved by the Lender at the request of the Borrower;

“Securities Account Pledge” means a pledge or other instrument in respect of the Securities Account executed or to be executed by the Borrower in favour of the Lender in such form as the Lender may require in its reasonable discretion

Security Documents” means, the GP LLC Interests Pledge, the Navios Logistics Shares Pledge, the NMM Partnership Interests Pledge A, the NMM Partnership Interests Pledge B, the NMM Partnership Interests Pledge C, the Guarantee, the Securities Account Pledge and any other documents designated by the Borrower and the Lender as “Security Documents” or any other documents as may have been or shall from time to time after the date of this Agreement be executed in favour of the Lender to guarantee and/or to govern and/or to secure payment of all or any part of the Loan, interest thereon and other moneys from time to time owing by the Borrower pursuant to this Agreement;

Security Party” means the Borrower, the Guarantors, Alpha Merit, GP LLC, the Navios Logistics Shareholder or any other person who may at any time be a party to any of the Loan Documents (other than the Lender);

Subsidiary” of a person means any company or entity directly or indirectly controlled by such person, and for this purpose “control” means either the ownership of more than fifty per cent (50%) of the voting share capital (or equivalent rights of ownership) of such company or entity;

 

10


Taxes” includes all present and future income, corporation, capital or value-added taxes and all stamp and other taxes and levies, imposts, deductions, duties, charges and withholdings whatsoever together with interest thereon and penalties in respect thereto, if any, and charges, fees or other amounts made on or in respect thereof (and “Taxation” shall be construed accordingly); and

Unlawfulness” means any event or circumstance which either is or, as the case may be, might in the reasonable opinion of the Lender become the subject of a notification by the Lender to the Borrower under clause 12.1.

 

1.3

Construction

In this Agreement, unless the context otherwise requires:

 

1.3.1

clause headings and the index are inserted for convenience of reference only and shall be ignored in the construction of this Agreement;

 

1.3.2

references to clauses and schedules are to be construed as references to clauses of, and schedules to, this Agreement and references to this Agreement include its schedules;

 

1.3.3

references to (or to any specified provision of) this Agreement or any other document shall be construed as references to this Agreement, that provision or that document as in force for the time being and as duly amended and/or supplemented and/or novated;

 

1.3.4

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 government entity, central bank or any self-regulatory or other supra-national authority (including, without limitation, any regulation implementing or complying with (1) the Basel Framework set forth by the Basel Committee on Banking Supervision as in effect on the Effective Date (the “Basel Framework”) and (2) any other law or regulation which, at any time and from time to time, implements and/or amends and/or supplements and/or re-enacts and/or supersedes, whether in whole or in part, the Basel Framework or any predecessor or successor thereto published from time to time by the Basel Committee on Banking Supervision (including European Union Directive 2013/36/EU and European Union Regulation 575/2013), and whether such implementation, application or compliance is by a government entity, a lender or any company affiliated to it);

 

11


1.3.5

references to any person in or party to this Agreement shall include reference to such person’s lawful successors and assigns and references to the Lender shall also include a transferee;

 

1.3.6

words importing the plural shall include the singular and vice versa;

 

1.3.7

references to a time of day are, unless otherwise stated, to London time;

 

1.3.8

references to a person shall be construed as references to an individual, firm, company, corporation or unincorporated body of persons or any government entity;

 

1.3.9

references to a “guarantee” include references to an indemnity or any other kind of assurance whatsoever (including, without limitation, any kind of negotiable instrument, bill or note) against financial loss or other liability including, without limitation, an obligation to purchase assets or services as a consequence of a default by any other person to pay any Indebtedness and “guaranteed” shall be construed accordingly;

 

1.3.10

references to any statute or other legislative provision are to be construed as references to any such statute or other legislative provision as the same may be re-enacted or modified or substituted by any subsequent statute or legislative provision (whether before or after the date hereof) and shall include any regulations, orders, instruments or other subordinate legislation issued or made under such statute or legislative provision;

 

1.3.11

a certificate by the Lender as to any amount due or calculation made or any matter whatsoever determined in connection with this Agreement shall be conclusive and binding on the Borrower except for manifest error;

 

1.3.12

if any document, term or other matter or thing is required to be approved, agreed or consented to by the Lender such approval, agreement or consent must be obtained in writing unless the contrary is stated; and

 

1.3.13

the words “other” and “otherwise” shall not be construed eiusdem generis with any foregoing words where a wider construction is possible.

 

1.4

Contracts (Rights of Third Parties Act) 1999

No part of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.

 

2

THE LENDERS COMMITMENT, LOAN AND USE OF PROCEEDS

 

12


2.1

The Commitment

In reliance upon each of the representations and warranties in clause 7, the Lender agrees to make available by way of loan to the Borrower on the terms of this Agreement the principal amount described in clause 2.2.

 

2.2

Amount

The principal amount of USD135,000,000 to be made available in:

(a) Advance A in the amount of USD64,058,823 (which amount has been drawn prior to the Effective Date and the Borrower acknowledges receipt thereof); and

(b) one or more Advances on or after the Effective Date in an aggregate amount of up to USD70,941,177.

 

2.3

Advance

On the terms and subject to the conditions of this Agreement, the Loan shall be advanced in one or more Advances, each on a Drawdown Date following receipt by the Lender from the Borrower of a Drawdown Notice not later than 10 a.m. London time on the Banking Day before such proposed Drawdown Date. A Drawdown Notice shall be effective on actual receipt by the Lender and, once given, shall be irrevocable.

 

2.4

Availability

Upon receipt of a Drawdown Notice complying with the terms of this Agreement, the Lender shall, subject to the provisions of clause 9, make an Advance available to the Borrower on the relevant Drawdown Date in payment to such account as the Borrower shall specify in the relevant Drawdown Notice, provided that such Drawdown Date must be on or before the Second Secured Indenture Repayment Date (or such later date as the Borrower and the Lender may agree).

 

2.5

Use of Proceeds

The Advances shall be applied to repay certain indebtedness and for general corporate purposes, and the Lender shall have no responsibility for the Borrower’s use of the proceeds of the Loan and is not bound to monitor or verify the application of any amount borrowed pursuant to the terms of this Agreement.

 

13


3

INTEREST

 

3.1

Interest rate

 

3.1.1

The Loan shall bear interest (a) up to the Effective Date in respect of Advance A, 10.5% per annum and (b) from the Effective Date onwards in respect of Advance A and from the Drawdown Date in respect of any Advance (i) up to but not including the Second Secured Indenture Repayment Date, 15% per annum and thereafter (ii) 13.5% per annum, which shall, following the Effective Date, be payable (subject to Clause 3.1.3) in quarterly instalments in arrears commencing with an instalment for the whole Loan becoming due three months after the Drawdown Date in respect of the first Advance to be drawn down after the Effective Date and quarterly thereafter (each such date, an “Interest Payment Date”).

 

3.1.2

Interest shall be calculated on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed during the period.

 

3.1.3

If the Borrower does not pay the amount of then due and owing interest in immediately available funds in accordance with Clause 3.1.1 on the Interest Payment Date on which it is due, (it being agreed that no interest in respect of any period from the Effective Date to the 18 month anniversary of the Effective Date may be paid in cash or other funds) then such unpaid interest shall be automatically deemed to be paid by means of an increase as of the Interest Payment Date to the outstanding principal amount of the Convertible Debenture in an amount equal to such unpaid interest plus an amount equal to 3% per annum of the relevant part of the Loan and/or any part thereof for which such unpaid interest was due. The Borrower may pay all or a portion of any due interest in immediately available funds but not with respect to any portion thereof accruing during the period from the Effective Date to the 18 month anniversary of the Effective Date.

 

3.2

Default interest

If the Lender fails to receive any sum whatsoever on its due date for payment under any of the Loan Documents (other than any sum expressly deemed paid hereunder by means of an increase to the outstanding principal amount of the Convertible Debenture), the Borrower must pay interest on such sum on demand from the due date up to the date of actual payment (as well after as before judgment) at a rate of two (2.0) per cent per annum over the interest rate referred to in clause 3.1. Such interest shall be due and payable on demand, shall accrue daily and shall be compounded annually.

 

14


4

REPAYMENT AND PREPAYMENT

 

4.1

Repayment

Subject as otherwise provided in this Agreement, the Borrower must repay the Loan in quarterly instalments of USD5,000,000, falling due on Interest Payment Dates, with the first instalment falling due on the first Interest Payment Date in the third quarter of 2023 and subsequent instalments falling due on subsequent Interest Payment Dates thereafter and on the Final Repayment Date the Borrower must repay the whole of the Loan then outstanding.

 

4.2

Voluntary prepayment

The Borrower may prepay the Loan in whole or in part (being USD1,000,000 or any larger sum which is a whole multiple of USD1,000,000) at any time.

 

4.3

Mandatory Prepayment

The Borrower shall prepay the Loan:

 

4.3.1

in full upon the occurrence of a “Change of Control” as described in Clause 10.1.21;

 

4.3.2

in full upon any Indebtedness being incurred by the Borrower contrary to the provisions of clause 7.1.16 and the terms of this Agreement on the date such Indebtedness is incurred;

 

4.3.3

on the date falling 30 days after the sale or receipt of insurance proceeds from the total loss of any vessel owned by any Group Member in an amount equal to the net proceeds of such sale or total loss as follows: after payment of any amounts then due and payable to any mortgagee or assignee of insurance of such vessel, any remaining balance amount to be paid forthwith to the Lender in partial prepayment of the Loan, unless the Borrower has before that date provided to the Lender acceptable (to the Lender in its absolute discretion) security over an asset having a value the same as or greater than the sold or lost vessel; and

 

4.3.4

on the date falling 30 days after the sale of any Collateral (to the extent not covered by Clause 4.3.3) in an amount equal to the net proceeds of such sale, unless the Borrower has before that date provided to the Lender acceptable (to the Lender in its absolute discretion) security over an asset having a value the same as or greater than the sold asset.

 

4.4

Amounts payable on prepayment

Any prepayment of all or part of the Loan under this Agreement shall be made together with:

 

15


4.4.1

accrued interest on the amount to be prepaid to the date of such prepayment, which shall be deemed to be paid at the applicable rate(s) set forth in Clause 3.1.3 by means of an increase as of such date to prepayment to the outstanding principal amount of the Convertible Debenture; except that Borrower may elect to pay any interest accrued with respect to any period from the 18 month anniversary of the Effective Time that was not previously deemed to have been paid by means of an increase to the outstanding principal amount of the Convertible Debenture in immediately available funds at the applicable rate(s) set forth in Clause 3.1.1;

 

4.4.2

any additional amount payable under clause 6.5;

 

4.4.3

in respect of any payment made under Clause 4.2, 4.3 or 10.2, a prepayment fee due to, and earned by, the Lender in an amount of:

 

  (a)

in respect of any prepayment made after the Effective Date but before the 18 month anniversary of the Effective Date, the Applicable Premium; and

 

  (b)

in respect of any prepayment made on or after the 18 month anniversary of the Effective Date but before the second anniversary of the Effective Date, 10% of the amount so prepaid; and

 

  (c)

in respect of any prepayment made on or after the second anniversary of the Effective Date but before the third anniversary of the Effective Date, 5% of the amount so prepaid

which amount shall be deemed to be paid by means of an increase to the principal amount outstanding under the Convertible Debenture.

 

4.4.4

if of the whole Loan, all other sums payable by the Borrower to the Lender under this Agreement or any of the other Loan Documents.

 

4.5

Notice of prepayment; reduction of repayment instalments

 

4.5.1

No prepayment may be effected under clause 4.2 unless the Borrower shall have given the Lender at least three (3) Banking Days’ prior written notice of its intention to make such prepayment. Every notice of prepayment shall be effective only on actual receipt by the Lender, shall be irrevocable, shall specify the amount to be prepaid and shall oblige the Borrower to make such prepayment on the date specified.

 

16


4.5.2

The Borrower may not prepay any part of the Loan except as expressly provided in this Agreement.

 

4.5.3

No amount prepaid may be reborrowed.

 

4.6

Application of prepayments

 

4.6.1

the Borrower may elect to apply any voluntary prepayments made pursuant to clause 4.2 towards reduction of any remaining instalment payments in respect of the Loan; and

 

4.6.2

any mandatory prepayments under Clause 4.3 (other than a mandatory prepayment in full) shall be applied against the remaining instalment payments in respect of the Loan on a pro rata basis.

 

5

FEES AND EXPENSES

 

5.1

Fees

The Borrower shall on the Effective Date pay to the Lender fees in accordance with the Fee Letter.

 

5.2

Expenses

The Borrower agrees to reimburse the Lender on a full indemnity basis on demand for all reasonable and documented expenses and/or disbursements whatsoever:

 

5.2.1

in connection howsoever with the negotiation, preparation, execution and, where relevant, registration of any contemplated or actual amendment, indulgence or the granting of any waiver or consent howsoever in connection with any of the Loan Documents; and

 

5.2.2

in contemplation or furtherance of, or otherwise howsoever in connection with, the exercise or enforcement of, or preservation of any rights, powers, remedies or discretion under any of the Loan Documents or any amendment thereto or consideration of the Lender’s rights thereunder or any action proposed or taken with interest at the rate referred to in clause 3.2 from the date falling 3 Banking Days after the date on which such expenses and/or disbursements were demanded by the Lender to the date of payment (as well after as before judgment).

 

17


5.3

Value Added Tax

All expenses payable under to this clause 5 must be paid with value added tax or any similar tax (if any) properly chargeable thereon. Any value added tax chargeable in respect of any services supplied by the Lender under this Agreement must, on delivery of the value added tax invoice, be paid in addition to any sum agreed to be paid hereunder.

 

5.4

Stamp and other duties

The Borrower must pay all stamp, documentary, registration or other like duties or taxes (including any duties or taxes payable by the Lender) imposed on or in connection with any Loan Documents or the Loan and agree to indemnify the Lender against any liability arising by reason of any delay or omission by the Borrower to pay such duties or taxes other than to the extent such duties or taxes arise as a result of the Lender transferring its Loan or Commitments under this Agreement.

 

6

PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS

 

6.1

No set-off or counterclaim

All payments to be made by the Borrower under any of the Loan Documents must be made in full, without any set-off or counterclaim whatsoever and, subject to clause 6.5, free and clear of any deductions or withholdings, in USD not later than 11 a.m. London time on the due date to such account of the Lender as the Lender may from time to time notify to the Borrower.

 

6.2

Non-Banking Days

When any payment under any of the Loan Documents would otherwise be due on a day which is not a Banking Day, the due date for payment shall be extended to the next following Banking Day.

 

6.3

Calculations

All interest and other payments of an annual nature under any of the Loan Documents shall accrue from day to day and be calculated on the basis of actual days elapsed and a 365 or 366 day year, as applicable.

 

18


6.4

Currency of account

If any sum due from the Borrower under any of the Loan Documents, or under any order or judgment given or made in relation thereto or for any other reason whatsoever, must be converted from the currency (“the first currency”) in which the same is payable thereunder into another currency (“the second currency”) for the purpose of (i) making or filing a claim or proof against the Borrower, (ii) obtaining an order or judgment in any court or other tribunal or (iii) enforcing any order or judgment given or made in relation thereto, the Borrower undertakes to indemnify and hold harmless the Lender from and against any loss suffered as a result of any discrepancy between (a) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (b) the rate or rates of exchange at which the Lender may in the ordinary course of business purchase the first currency with the second currency upon receipt of a sum paid to it in satisfaction, in whole or in part, of any such order, judgment, claim or proof. Any amount due from the Borrower under this clause 6.4 shall be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of any of the Loan Documents and the term “rate of exchange” includes any premium and costs of exchange payable in connection with the purchase of the first currency with the second currency.

 

6.5

Grossing-up for Taxes

If at any time the Borrower must make any deduction or withholding in respect of Taxes from any payment due under any of the Loan Documents, the sum due from the Borrower in respect of such payment must then be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Lender receives on the due date for such payment (and retains, free from any liability in respect of such deduction or withholding), a net sum equal to the sum which it would have received had no such deduction or withholding been made and the Borrower agrees to indemnify the Lender on demand against any losses or costs certified by the Lender to have been incurred by it by reason of any failure of the Borrower to make any such deduction or withholding or by reason of any increased payment not being made on the due date for such payment. The Borrower must promptly deliver to the Lender any receipts, certificates or other proof evidencing the amounts (if any) paid or payable in respect of any deduction or withholding as aforesaid. . The Lender shall use commercially reasonable efforts (including the delivery of properly completed and executed Tax forms or documentation prescribed by applicable law) to reduce or eliminate any deduction or withholding for Taxes from any payment due under any of the Loan Documents and to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to this clause 6.5.

 

19


6.6

Loan account

The Lender agrees to maintain a control account showing the Loan and other sums owing by the Borrower under the Loan Documents and all payments in respect thereof being made from time to time. The control account shall, in the absence of manifest error, absent prompt objection by the Borrower, be conclusive as to the amount from time to time owing by the Borrower under the Loan Documents.

 

6.7

Partial payments

If, on any date on which a payment is due to be made by the Borrower under any of the Loan Documents, the amount received by the Lender from the Borrower falls short of the total amount of the payment due to be made by the Borrower on such date then, without prejudice to any rights or remedies available to the Lender under any of the Loan Documents, the Lender must apply the amount actually received from the Borrower in or towards discharge of the obligations of the Borrower under the Loan Documents in the following order, notwithstanding any appropriation made, or purported to be made, by the Borrower:

 

6.7.1

first, in or towards payment, on a pro-rata basis, of any unpaid costs and expenses of the Lender under any of the Loan Documents;

 

6.7.2

secondly, in or towards payment of any expenses payable to the Lender under, or in relation to, the Loan Documents which remain unpaid;

 

6.7.3

thirdly, in or towards payment to the Lender of any accrued interest owing in respect of the Loan (other than accrued interest expressly deemed paid hereunder by means of an increase to the outstanding principal amount of the Convertible Debenture) which shall have become due under any of the Loan Documents but remains unpaid;

 

6.7.4

fourthly, in or towards payment to the Lender of any principal in respect of the Loan which shall have become due but remains unpaid ;

 

20


6.7.5

fifthly, in or towards payment to the Lender of any other sum which shall have become due under any of the Loan Documents but remains unpaid (and, if more than one such sum so remains unpaid, on a pro rata basis), other than any sum expressly deemed paid hereunder by means of an increase to the outstanding principal amount of the Convertible Debenture.

The order of application set out in clauses 6.7.1 to 6.7.5 may be varied by the Lender without any reference to, or consent or approval from, the Borrower.

 

6.8

FATCA

 

6.8.1

Subject to Clause 6.8.3 below, each party shall, within ten (10) Banking Days of a reasonable request by another party:

 

  (a)

confirm to that other party whether it is:

 

  (i)

a FATCA Exempt Party; or

 

  (ii)

not a FATCA Exempt Party; and

 

  (b)

supply to that other party such forms, documentation and other information relating to its status under FATCA (including its applicable pass-through 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.

 

6.8.2

If a party confirms to another party pursuant to Clause 6.8.1(a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.

 

6.8.3

Clause 6.8.1(a) above shall not oblige the Lender to do anything which would or might in its reasonable opinion constitute a breach of:

 

  (a)

any law or regulation;

 

  (b)

any policy of the Lender;

 

  (c)

any fiduciary duty; or

 

  (d)

any duty of confidentiality.

 

21


6.8.4

If the Borrower is required to make a FATCA Deduction, the Borrower shall make that FATCA Deduction and any payment required in connection with that FATCA Deduction within the time allowed and in the minimum amount required by FATCA;

 

6.8.5

The Borrower 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 a FATCA Deduction) notify the Lender accordingly; and

 

6.8.6

Within thirty days of making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the Borrower shall deliver to the Lender evidence satisfactory to the Lender that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the relevant governmental or taxation authority.

 

7

REPRESENTATIONS AND WARRANTIES

 

7.1

Continuing representations and warranties

The Borrower represents and warrants to the Lender that:

 

7.1.1

Due incorporation

each of the Security Parties is duly incorporated and validly existing in good standing, under the laws of the Republic of the Marshall Islands as a corporation or limited liability company and has power to carry on its respective business as it is now being conducted and to own its property and other assets to which it has unencumbered legal and beneficial title except as disclosed to the Lender in writing;

 

7.1.2

Corporate power

each of the Security Parties has power to execute, deliver and perform its obligations and, as the case may be, to exercise its rights under the Loan Documents to which it is a party; all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and on the execution of the Loan Documents performance of the same and no limitation on the powers of the Borrower to borrow or any other Security Party to howsoever incur liability and/or to provide or grant security will be exceeded as a result of borrowing any part of the Loan;

 

7.1.3

Binding obligations

subject to the Legal Reservations and the Perfection Requirements, the Loan Documents, when executed, will constitute valid and legally binding obligations of the relevant Security Parties enforceable in accordance with their respective terms and admissible in evidence and the Security Documents will create first priority Encumbrances;

 

22


7.1.4

No conflict with other obligations

the execution and delivery of, the performance of its obligations under, and compliance with the provisions of, the Loan Documents by the relevant Security Parties will not (i) contravene in any material respect any existing applicable law, statute, rule or regulation or any judgment, decree or permit of any Pertinent Jurisdiction to which any Security Party or other member of the Group 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 any Security Party or any other member of the Group is a party or is subject or by which it or any of its property is bound which is likely to have a Material Adverse Effect, (iii) contravene or conflict with any provision of the constitutional documents of any Security Party or (iv) result in the creation or imposition of, or oblige any Security Party to create, any Encumbrance (other than a Permitted Encumbrance) on any of the undertakings, assets, rights or revenues of any Security Party secured under the Security Documents;

 

7.1.5

No default

no Default has occurred which is continuing;

 

7.1.6

No litigation or judgments

no Proceedings are current, pending or, to the knowledge of the officers of the Borrower, threatened against any Security Party or any other Group Members or their assets which could have a Material Adverse Effect and there exist no judgments, orders, injunctions which would materially affect the obligations of any Security Party under the Loan Documents other than have been publicly disclosed by the Borrower prior to the Effective Date;

 

7.1.7

No filings required

it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of any of the Loan Documents that they or any other instrument be notarised, filed, recorded, registered or enrolled in any court, public office or elsewhere in any Pertinent Jurisdiction or that any stamp, registration or similar tax or charge be paid in any Pertinent Jurisdiction on or in relation to the Loan Documents and each of the Loan Documents is in proper form for its enforcement in the courts of each Pertinent Jurisdiction;

 

23


7.1.8

Required Authorisations and legal compliance

all Required Authorisations have been obtained or effected and are in full force and effect and no Security Party has in any way contravened any applicable law, statute, rule or regulation (including all such as relate to money laundering);

 

7.1.9

Choice of law

the choice of English law to govern the Loan Documents and the submissions by the Security Parties to the jurisdiction of the English courts and the obligations of the Security Parties associated therewith, are valid and binding;

 

7.1.10

No immunity

no Security Party nor any of their assets is entitled to immunity on the grounds of sovereignty or otherwise from any Proceedings whatsoever;

 

7.1.11

Financial statements correct and complete

the Latest Accounts of the Borrower in respect of the relevant financial year as delivered to the Lender present fairly and accurately the financial position of the Borrower for the financial year, ended on such date and, as at such date, the Borrower had no material liabilities (contingent or otherwise) or any unrealised or anticipated losses which are not disclosed by, or reserved against or provided for in, such financial statements or notes thereto;

 

7.1.12

Pari passu

the obligations of the Security Parties under this Agreement are direct, general and unconditional obligations of the Security Parties and rank at least pari passu with all present and future unsubordinated Indebtedness of each Security Party except for obligations which are mandatorily preferred by operation of law and not by contract;

 

7.1.13

Information/ Material Adverse Effect

all written factual information, whatsoever provided by any Security Party to the Lender in connection with the negotiation and preparation of the Amending and Restating Agreement, or otherwise provided hereafter in relation to, or pursuant to this Agreement is true and accurate in all material respects and not misleading and the Borrower’s public filings do or will not omit material facts and all reasonable enquiries have been made to verify the facts and statements contained therein as of such date and there has not occurred a Material Adverse Effect on any Security Party since such information was provided to the Lender;

 

24


7.1.14

Freedom from Encumbrances

save as otherwise disclosed in writing by the Borrower to the Lender on or prior to the date of this Agreement, no properties or rights which are, or are to be, the subject of any of the Security Documents nor any part thereof will be subject to any Encumbrance except Permitted Encumbrances;

 

7.1.15

Copies true and complete

the copies of the constitutional documents of the Security Parties delivered or to be delivered to the Lender pursuant to clause 9.1 are, or will when delivered be, true and complete copies; and there have been no amendments or variations thereof;

 

7.1.16

Indebtedness

no Security Party has incurred any Indebtedness other than as permitted under clause 8.2.3 or as otherwise disclosed to the Lender in writing or as disclosed in the Group’s public filings or up to, but not following the Second secured Indenture Repayment Date, as permitted under the Second Secured Indenture;

 

7.1.17

Use of proceeds

the Borrower shall apply the Loan only for the purposes specified in clauses 1.1. and 2.5;

 

7.1.18

Filings

subject to any permissible extensions, the Borrower has filed all material tax and other fiscal returns required to be filed with any tax authority to which it is subject;

 

7.1.19

Office

the Borrower does not have an office in England;

 

7.1.20

Prohibited Persons, unlawful activity

 

  (a)

none of the Group Members are a Prohibited Person; and

 

25


  (b)

to the best of its knowledge, no title in any property or other assets subject to an Encumbrance created by a Loan Document has been obtained in breach of any existing applicable law, statute, rule or regulation;

 

7.1.21

Insolvency

none of the Security Parties is unable or has admitted inability to pay its debts as they fall due, has suspended making payments on any of its debts or has announced an intention to do so, is or has become insolvent; or, save as disclosed to the Lender prior to the Effective Date, or has suffered the declaration of a moratorium in respect of any of its Indebtedness;

 

7.1.22

Sanctions

no Security Party nor any director, officer, agent, employee of any Security Party or any person acting on behalf of any Security Party, is a Prohibited Person nor acts directly or indirectly on behalf of a Prohibited Person; and

 

7.2

Repetition of representations and warranties

On the Effective Date and on each Interest Payment Date, the Borrower shall be deemed to repeat the representations and warranties in clause 7.1 updated mutatis mutandis as if made with reference to the facts and circumstances existing on such day.

 

8

UNDERTAKINGS

 

8.1

General

The Borrower undertakes with the Lender that, from the Effective Date until the end of the Facility Period, it will:

 

8.1.1

Notice of Default and Proceedings

promptly inform (and any public filing of the Borrower containing the relevant information about the matters hereafter described shall constitute compliance with this covenant to inform) the Lender of (a) when required under the Second Secured Indenture, any Default (including the occurrence of any Event of Default under (and as defined in) the Second Secured Indenture, in which case the Borrower shall also provide to the Lender copies of all demands or notices made in connection therewith) and of any other circumstances or occurrence which might materially and adversely affect the ability of the Borrower to perform its obligations under any

 

26


of the Loan Documents and (b) as soon as the same is instituted or formally threatened in writing, details of any Proceedings involving the Borrower which could have a Material Adverse Effect on the Borrower and will from time to time, if so reasonably requested by the Lender, confirm to the Lender in writing that, save as otherwise stated in such confirmation, no Default has occurred and is continuing and no such Proceedings are on foot or have been formally threatened in writing;

 

8.1.2

Authorisation

obtain or cause to be obtained, maintain in full force and effect and comply fully with all Required Authorisations, provide the Lender, upon request, with Certified Copies of the same and do, or cause to be done, all other acts and things which may from time to time be necessary under any applicable law for the continued due performance of all the obligations of the Security Parties under each of the Loan Documents;

 

8.1.3

Corporate Existence/Ownership

ensure that each Security Party maintains its corporate existence as a body corporate duly organised and validly existing and in good standing under the laws of the Pertinent Jurisdiction and ensure that the Borrower is owned and controlled, directly or through other companies, by the persons disclosed to the Lender prior to the date hereof;

 

8.1.4

Use of proceeds

use the Loan exclusively for the purposes specified in clauses 1.1 and 2.5; and

 

8.1.5

Pari passu

ensure that its obligations under this Agreement shall at all times rank at least pari passu with all its present and future unsecured and unsubordinated Indebtedness with the exception of any obligations which are mandatorily preferred by law and not by contract;

 

8.1.6

Financial statements

provide the Lender (or procure that is provided):

 

  (a)

as soon as possible, but in no event later than 180 days after the end of each of its financial years, annual audited (prepared in accordance with US GAAP by a firm of accountants acceptable to the Lender) consolidated balance sheet and profit and loss accounts of the Borrower (commencing with the financial year ending 31 December 2021) and public filing in respect of the Borrower shall constitute delivery;

 

27


  (b)

as soon as possible, but in no event later than 90 days after the end of each of its 6-month period ending on 30 June of each financial year, commencing with the 6-month period ending on 30 June 2022, the Borrower’s unaudited consolidated balance sheet and profit and loss accounts for that 6 month period certified as to their correctness by its chief financial officer;

 

  (c)

prior to the start of each of its financial years, an annual forecast in respect of the Borrower;

 

  (d)

details of any litigation, arbitration, administrative proceedings, Default and any other events or circumstances which are likely to have a Material Adverse Effect on the Borrower;

 

8.1.7

Compliance Certificates

deliver to the Lender on the dates on which the financial statements must be delivered to the Lender under clause 8.1.6(b), a Compliance Certificate and such other supporting information as the Lender may reasonably require;

 

8.1.8

Provision of further information

provide the Lender with such financial or other information concerning the Borrower, all vessels (including those under construction) owned, acquired, sold or managed by any Group Member, or any of its Subsidiaries, including, commitments, financial standing, operations and in relation to Borrowed Moneys, repayment of Borrowed Money, as the Lender may from time to time reasonably require;

 

8.1.9

Compliance with laws and payment of taxes

comply in all material respects with all relevant applicable laws, statutes, directives, decrees, rulings and analogous rules (including, but not limited to, those relating to Sanctions) and regulations (other than in the case of Sanctions) where failure to do so would be reasonably likely to have a Material Adverse Effect and pay all taxes for which it is liable as they fall due unless disputed in good faith;

 

28


8.1.10

Second Secured Indenture

prior to the Second Secured Indenture Repayment Date, comply with all of its obligations under the Second Secured Indenture;

 

8.1.11

Sanctions

will not and will use reasonable endeavours to ensure that no Group Member does, conduct or undertake any business:

 

  (a)

in breach of any Sanctions of:

 

  (i)

the United Nations Security Council;

 

  (ii)

the European Union;

 

  (iii)

the United Kingdom;

 

  (iv)

the United States of America; or

 

  (v)

the Marshall Islands

as they apply to their members or nationals; or

 

  (b)

in any trade, carriage of goods or business which is forbidden by the laws of the United Kingdom or the United States of America as they apply to their members or nationals, or any law applicable to the Borrower; or

 

  (c)

in carrying illicit or prohibited goods; or

 

  (d)

in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated; or

 

  (e)

to the knowledge of the Borrower, by or for the benefit of a Prohibited Person;

 

8.1.12

Delivery of reports

deliver to the Lender upon request a copy of each report, circular, notice or like document issued by the Borrower to its shareholders or creditors generally;

 

29


8.2

Negative undertakings

The Borrower undertakes with the Lender that, from the Effective Date until the end of the Facility Period, it will not, without the prior written consent of the Lender:

 

8.2.1

Negative pledge

permit any Encumbrance (other than (i) a Permitted Encumbrance or (ii) as otherwise disclosed (x) in writing by the Borrower to the Lender or (y) in public filings, in each case of sub-clauses (x) and (y), on or prior to the date of this Agreement) to subsist, arise or be created or extended over any shares owned by the Borrower to secure or prefer any present or future Indebtedness or other liability or obligation of any Group Member or any other person;

 

8.2.2

No merger or transfer

merge or consolidate with or into or directly or indirectly sell all or substantially all of its properties and assets to any other person (a “successor person”) unless: (i) the Borrower is the surviving person; and (ii) immediately after giving effect to the transaction, no Event of Default (or any event which is, or after notice or passage of time or both would be, an Event of Default), shall have occurred and be continuing;

 

8.2.3

Financial Indebtedness

incur, and will not permit any Security Party to incur, any Financial Indebtedness without the Lender’s consent other than (i) Financial Indebtedness under the New Facility Agreements; and (ii) Financial Indebtedness incurred in the ordinary course of business with respect to performance bonds, surety, statutory, customs and appeal bonds, bid bonds, completion guarantees and similar obligations, including with respect to letters of credit supporting such obligations; provided that no Financial Indebtedness of Navios Logistics and its direct or indirect subsidiaries shall be prohibited hereunder.

 

8.2.4

Prohibited Persons

have, and shall use reasonable endeavours to procure that no Group Member will have, any course of dealings, directly or indirectly, with any Prohibited Person.

 

8.2.5

Dividends

declare or pay dividends except for so long as no Event of Default has then occurred which is continuing, or would occur as a result of such declaration and/or payment;

 

30


8.2.6

Investments and payments

make investments and payments except for so long as no Event of Default has then occurred which is continuing, or would occur as a result of such investment/or payment.

 

8.3

Second Secured Indenture

On the date on which all sums due and payable under the Second Secured Indenture are paid and any encumbrance granted in connection therewith over any asset is released, there may be granted to the Lender as security for other loan facilities, Encumbrances (“New Security”) over assets that are the subject of the NMM Partnership Interests Pledge B, the GP LLC Interests Pledge, the Navios Logistics Share Pledge and any other documents designated by the Borrower and the Lender and if there is, the Borrower shall procure that on the Lender’s request, the relevant Security Parties enter into and execute such documentation as the Lender may reasonably require in order to give the New Security first priority ahead of such said Security Documents.

 

8.4

Second Secured Indenture

Save as otherwise expressly provided in clause 8.2, any other terms or transactions or events permitted by the Second Secured Indenture shall be deemed to be permitted under this Agreement for the period up to, but not following the Second Secured Indenture Repayment Date.

 

9

CONDITIONS

 

9.1

Advance: Documents and evidence

The Lender’s obligation to make available an Advance is subject to the following conditions precedent:

 

9.1.1

the representations and warranties contained in clause 7.1 being then true and correct (giving effect to any materiality qualifiers set forth therein) as if each was made with respect to the facts and circumstances existing at such time;

 

9.1.2

no Default shall have occurred and be continuing and no Default would result from the advance of that Advance; and

 

31


9.1.3

There has occurred nothing since the Effective Date which would have a Material Adverse Effect.

 

9.2

Waiver of conditions precedent

The conditions specified in this clause 9 are inserted solely for the benefit of the Lender and may be waived by the Lender in whole or in part and with or without conditions.

 

10

EVENTS OF DEFAULT

 

10.1

Events

Each of the following events shall constitute an Event of Default (whether such event shall occur voluntarily or involuntarily or by operation of law or regulation or in connection with any judgment, decree or order of any court or other authority or otherwise, howsoever):

 

10.1.1

Non-payment: the Borrower fails to pay any sum payable by it under any of the Loan Documents at the time, in the currency and in the manner stipulated in the Loan Documents (and so that, for this purpose, sums payable (i) under clause 4.1 shall be treated as having been paid at the stipulated time if (a) received by the Lender within five (5) days of the dates therein referred to and (b) such delay in receipt is caused by administrative or other delays or errors within the banking system and (ii) on demand shall be treated as having been paid at the stipulated time if paid within five (5) Banking Days of demand); or

 

10.1.2

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 Loan Documents (other than those referred to in clause 10.1.1 above) unless such breach or omission, in the reasonable opinion of the Lender is capable of remedy, in which case the same shall constitute an Event of Default if it has not been remedied within thirty (30) Banking Days of the Lender giving written notice to the Borrower of, or the Borrower becoming aware of the occurrence thereof; or

 

10.1.3

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 Loan Documents or in any notice, certificate or statement referred to in or delivered under any of the Loan Documents is or proves to have been incorrect or misleading in any material respect unless the circumstances giving rise to the misrepresentation are in the reasonable opinion of the Lender capable of remedy and are remedied within thirty (30) Banking Days of the Lender giving written notice to the Borrower of, or the Borrower becoming aware of, the occurrence thereof; or

 

32


10.1.4

Cross-default: any Indebtedness of the Borrower (which is not intra group or subordinated debt) in excess of USD10,000,000 is not paid when due (subject to applicable grace periods) or any Indebtedness of the Borrower becomes (whether by declaration or automatically in accordance with the relevant agreement or instrument constituting the same) due and payable prior to the date when it would otherwise have become due (unless as a result of the exercise by the Borrower of a voluntary right of prepayment), or any creditor of the Borrower becomes entitled to declare any such Indebtedness due and payable or any facility or commitment available to the Borrower relating to Indebtedness is withdrawn, suspended or cancelled by reason of any default (however described) of the person concerned (unless the relevant creditor has granted to the Borrower a waiver in respect thereof) ; or

 

10.1.5

Execution: any uninsured judgment or order made against the Borrower in an amount in excess of USD30,000,000 is not stayed, appealed against or complied with within twenty (20) days or a creditor attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced upon or sued out against, any of the undertakings, assets, rights or revenues of the Borrower and is not discharged within thirty (30) days; or

 

10.1.6

Insolvency: the Borrower is unable or admits inability to pay its debts as they fall due; suspends making payments on all or substantially all of its debts or announces an intention to do so; becomes insolvent; or suffers the declaration of a moratorium in respect of all or substantially all of its Indebtedness; or

 

10.1.7

Dissolution: any corporate action, Proceedings or other steps are taken to dissolve or wind-up the Borrower or an order is made or resolution passed for the dissolution or winding up of the Borrower; or

 

10.1.8

Administration: any petition is presented, notice given or other steps are taken anywhere to appoint an administrator of any Security Party or an administration order is made in relation to any Security Party; or

 

10.1.9

Appointment of receivers and managers: any administrative or other receiver is appointed anywhere of any Security Party or any part of its assets and/or undertaking or any other steps are taken to enforce any Encumbrance over all or any part of the assets of any Security Party; or

 

33


10.1.10 

Compositions: any corporate action, legal proceedings or other procedures are taken, by the Borrower or by any of its creditors with a view to the general readjustment or rescheduling of all or substantially all of its Indebtedness, or to proposing any kind of composition, compromise or arrangement involving such company and all or substantially all of its creditors; or

 

10.1.11 

Analogous proceedings: there occurs, in relation to a Security Party, in any country or territory in which it carries on business or to the jurisdiction of whose courts any part of its assets is subject, any event which, in the reasonable opinion of the Lender, appears in that country or territory to correspond with, or have an effect equivalent or similar to, any of those mentioned in clauses 10.1.6 to 10.1.10 (inclusive) in respect of the Borrower or the Borrower otherwise becomes subject, in any such country or territory, to the operation of any law relating to insolvency, bankruptcy or liquidation; or

 

10.1.12 

Cessation of business: any Security Party suspends or ceases to carry on its business; or

 

10.1.13 

Seizure: all or a material part of the undertaking, assets, rights or revenues of, or shares or other ownership interests in, the Borrower are seized, nationalised, expropriated or compulsorily acquired by or under the authority of any government entity; or

 

10.1.14 

Invalidity: any of the Loan Documents shall, other than as a result of any act or omission of the Lender, 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 Loan Documents shall at any time and for any reason be contested by any Security Party which is a party thereto, or if any Security Party shall deny that it has any, or any further, liability thereunder; or

 

10.1.15 

Unlawfulness: any Unlawfulness occurs or 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 Loan Documents or for the Lender to exercise the rights or any of them vested in it under any of the Loan Documents or otherwise; or

 

10.1.16 

Repudiation: any Security Party repudiates any of the Security Documents or does or causes or permits to be done any act or thing evidencing an intention to repudiate any of the Security Documents; or

 

10.1.17 

Encumbrances enforceable: any Encumbrance (other than Permitted Encumbrances) in respect of any of the property (or part thereof) which is the subject of any of the Security Documents becomes enforceable; or

 

34


10.1.18 

Material events: any other event occurs or circumstance arises which, in the reasonable opinion of the Lender, is likely to have a Material Adverse Effect or, if such event or circumstance is capable of remedy it is not remedied within 15 Banking Days of the earlier of (i) the Lender notifying the Borrower of such event or (ii) the Borrower becoming aware of the same; or

 

10.1.19 

Litigation: any Proceedings are current, pending or threatened against any of the Security Parties which could have a Material Adverse Effect; or

 

10.1.20 

Required Authorisations: any Required Authorisation is revoked or withheld or modified or is otherwise not granted or fails to remain in full force and effect or if any exchange control or other law or regulation shall exist which would make any transaction under the Loan Documents or the continuation thereof, unlawful or would prevent the performance by any Security Party of any term of any of the Loan Documents;

 

10.1.21 

Change of Control: without the prior written consent of the Lender, the Designated Shareholders fail to, either individually or together, be the ultimate beneficial owner(s) of, or have ultimate control of the voting rights attaching to, at least 10 per cent of all of the outstanding voting shares in the Borrower (other than as a result of a sale by the Designated Shareholders) (a “Change of Control”);

 

10.1.22 

Money Laundering: any Security Party is in breach of or fails to observe any law, requirement, measure or procedure implemented to combat “money laundering” as defined in Article 1 of the Directive (91/308 EEC) of the Council of the European Communities.

 

10.2

Acceleration

The Lender may, without prejudice to any other rights of the Lender, at any time after the occurrence of an Event of Default so long as the same is continuing by notice to the Borrower:

 

10.2.1

declare that the obligation of the Lender to make the Commitment available shall be terminated, whereupon the Commitment shall immediately be cancelled; and/or

 

10.2.2

declare that the Loan and all interest accrued and all other sums payable whensoever under the Loan Documents have become due and payable, whereupon the same shall, immediately or in otherwise accordance with the terms of such notice, become due and payable; and/or

 

10.2.3

exercise any or all of its rights, remedies, powers or discretions under the Loan Documents.

 

35


10.3

Payments on Acceleration

in respect of any payment made under or pursuant to Clause 10.2, Clause 4.4.3 applies.

 

10.4

Demand basis

If, under clause 10.2.2, the Lender has declared the Loan to be due and payable on demand, at any time thereafter the Lender may by further notice to the Borrower demand repayment of the Loan on such date as may be specified whereupon the Loan shall become due and payable accordingly with all interest accrued and all other sums payable under this Agreement.

 

11

INDEMNITIES

 

11.1

General indemnity

The Borrower agrees to indemnify the Lender on demand, without prejudice to any of the Lender’s other rights under any of the Loan Documents, against any loss (including loss of interest), cost or expense which the Lender shall certify as sustained at any time by it in connection with this Agreement, including (without limitation) any such loss, cost or expense arising from any action, claim, suit or proceeding directly or indirectly related to this Agreement, the other Loan Documents or the Loan (excluding any default by the Lender determined by a court of competent jurisdiction to have resulted from (i) the gross negligence, bad faith or wilful misconduct of the Lender or (ii) a material breach of the Loan Documents by the Lender).

 

12

UNLAWFULNESS AND INCREASED COST MITIGATION

 

12.1

Unlawfulness

Regardless of any other provision of this Agreement, in the event that the Lender notifies the Borrower that by reason of:

 

  (a)

the introduction of or any change in any applicable law or regulation or any change in the interpretation or application thereof; or

 

  (b)

compliance by the Lender with any directive, request or requirement (whether or not having the force of law) of any central bank or government entity

 

36


it becomes unlawful or it is prohibited by or contrary to such directive request or requirement for the Lender to maintain or give effect to any of its obligations in connection howsoever with this Agreement then (i) the Commitment shall be reduced to zero and (ii) the Borrower shall be obliged to prepay the Loan either immediately or on a future date (specified in the Lender’s notice) not being earlier than the latest date permitted by the relevant law, regulation, directive, request or requirement with interest and commitment commission accrued to the date of prepayment and all other sums payable whensoever by the Borrower under this Agreement.

 

12.2

Increased costs

If the Lender certifies to the Borrower that at any time the effect of any applicable law, regulation or regulatory requirements or the interpretation or application thereof or any change therein is to:

 

12.2.1

subject the Lender to Taxes or change the basis of Taxation of the Lender relating to any payment under any of the Loan Documents (other than Taxes or Taxation on the overall net income of the Lender imposed in the jurisdiction in which its principal or lending office under this Agreement is located); and/or

 

12.2.2

increase the cost to, or impose an additional cost on, the Lender in making or keeping the Commitment available or maintaining or funding all or part of the Loan; and/or

 

12.2.3

reduce the amount payable or the effective return to the Lender under any of the Loan Documents; and/or

 

12.2.4

require the Lender to make a payment or forgo a return on or calculated by reference to any amount received or receivable by the Lender under any of the Loan Documents; and/or

then and in each such case (subject to clause 12.3) the Borrower must on demand either:

 

  (a)

pay to the Lender the amount which the Lender certifies (in a certificate setting forth 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 for such liability to Taxes, cost, reduction, payment, forgone return or loss; or

 

  (b)

prepay the Loan, in respect of which prepayment the terms of clause 4.3 shall apply.

 

37


12.3

Exception

Nothing in clause 12.2 shall entitle the Lender to receive any amount relating to compensation for any such liability to Taxes, increased or additional cost, reduction, payment, foregone return or loss to the extent that the same is the subject of an additional payment under clause 5.3, 5.4 or 6.5.

 

13

SECURITY, SET-OFF AND MISCELLANEOUS

 

13.1

Application of moneys

All moneys received by the Lender under or pursuant to any of the Loan Documents and expressed to be applicable in accordance with the provisions of this clause 13.1 shall be applied by the Lender as follows:

 

13.1.1

first in or toward payment of all unpaid expenses, sums which have been demanded by way of indemnity and expenses which may be owing to the Lender under any of the Loan Documents;

 

13.1.2

secondly in or towards payment of any arrears of interest owing in respect of the Loan or any part thereof;

 

13.1.3

thirdly in or towards repayment of the Loan (whether the same is due and payable or not);

 

13.1.4

fourthly in or towards payment to the Lender of any other sums which the Lender certifies are owing to it under any of the Loan Documents; and

 

13.1.5

fifthly the surplus (if any) shall be paid to the Borrower.

 

13.2

Further assurance

The Borrower will, at its expense, execute, sign, perfect and do, and will procure the execution, signing, perfecting and doing by each of the other Security Parties of, any and every such further assurance, document, act or thing as in the reasonable opinion of the Lender may be necessary or desirable for perfecting the security contemplated or constituted by the Loan Documents.

 

13.3

Conflicts

In the event of any conflict between this Agreement and any of the other Loan Documents executed by the Borrower, the provisions of this Agreement shall prevail.

 

38


13.4

No implied waivers, remedies cumulative

No failure or delay on the part of the Lender to exercise any power, right or remedy under any of the Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise by the Lender of any power, right or remedy preclude any other or further exercise thereof or the exercise of any other power, right or remedy. The remedies provided in the Loan Documents are cumulative and are not exclusive of any remedies provided by law. No waiver by the Lender shall be effective unless it is in writing.

 

13.5

Severability

If any provision of this Agreement is prohibited, invalid, illegal or unenforceable in any jurisdiction, such prohibition, invalidity, illegality or unenforceability shall not affect or impair howsoever the remaining provisions thereof or affect the validity, legality or enforceability of such provision in any other jurisdiction.

 

13.6

Force Majeure

Regardless of any other provision of this Agreement the Lender shall not be liable for any failure to perform the whole or any part of this Agreement resulting directly or indirectly from (i) the action or inaction or purported action of any governmental or local authority, (ii) any strike, lockout, boycott or blockade (including any strike, lockout, boycott or blockade effected by or upon the Lender or any of its representatives or employees), (iii) any act of God, (iv) any act of war (whether declared or not) or terrorism, (v) any failure of any information technology or other operational systems or equipment affecting the Lender or (vi) any other circumstances whatsoever outside the Lender’s control; provided that, the foregoing shall not apply to any failure to fund the Advances on or prior to Second Secured Indenture Repayment Date.

 

13.7

Amendments

This Agreement may be amended or varied only by an instrument in writing executed by both parties hereto who irrevocably agree that the provisions of this clause 13.7 may not be waived or modified except by an instrument in writing to that effect signed by both of them.

 

13.8

Counterparts

This Agreement may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement which may be sufficiently evidenced by one counterpart.

 

39


13.9

English language

All documents required to be delivered under and/or supplied whensoever in connection howsoever with any of the Loan Documents and all notices, communications, information and other written material whatsoever given or provided in connection howsoever therewith must either be in the English language or accompanied by an English translation certified by a notary, lawyer or consulate acceptable to the Lender.

 

14

ASSIGNMENT, TRANSFER AND DISCLOSURE

 

14.1

Benefit and burden

This Agreement shall be binding upon, and ensure for the benefit of, the Lender and the Borrower and their respective successors.

 

14.2

No assignment by Borrower

The Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Lender. Neither the Borrower nor any affiliate of the Borrower may become a Lender or a sub-participant.

 

14.3

Assignment by Lender

The Lender may not assign, sell or sub-participate all or any part of its rights under any Loan Document except (i) to a wholly-owned Subsidiary or controlled (or under common control) affiliate of the Lender, (ii) during the occurrence of an Event of Default, to any Subsidiary or affiliate of the Lender or (iii) with the prior written consent of the Borrower. The Lender, acting solely for this purpose as an agent of the Borrower, shall maintain a register for the recordation of the names and addresses of any such assignee or participant of the Lender, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each such assignee or participant pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Lender, and any such assignee or participant of Lender shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, the Lender and any such assignee or participant of the Lender, at any reasonable time and from time to time upon reasonable prior notice. It is the intention that this Agreement be treated as a registered obligation and in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code of 1986, as amended, and the United States Treasury Regulations thereunder.

 

40


14.4

Disclosure of information

The Lender may disclose to a prospective assignee, transferee or to any other person who may propose entering into contractual relations with the Lender in relation to this Agreement such information about or in connection with any of the Security Parties and the Loan Documents as the Lender considers appropriate, provided that the Lender shall consult with the Borrower prior to disclosing (i) any such information which is not public or contained in the Agreement and/or (ii) any documentation other that a copy of this Agreement or any other Security Document.

 

15

NOTICES

 

15.1

General

 

15.1.1

unless otherwise specifically provided herein, every notice under or in connection with this Agreement shall be given in English by letter delivered personally and/or sent by post and/or transmitted by email;

 

15.1.2

in this clause “notice” includes any demand, consent, authorisation, approval, instruction, certificate, request, waiver or other communication.

 

15.2

Addresses for communications, effective date of notices

 

15.2.1

Subject to clause 15.2.2 notices to the Borrower shall be deemed to have been given and shall take effect when received in full legible form by the Borrower at the address and/or the email address appearing below (or at such other address or email address as the Borrower may hereafter specify for such purpose to the Lender by notice in writing);

Address:     Strathvale House, 90 N Church Street,

P.O. Box 309, Grand Cayman,

KY1-1104 Cayman Islands

email address:    lwebster@navios.com

notwithstanding the provisions of this clause 15.2.1, a notice of Default and/or a notice given pursuant to clause 10.2 shall be deemed to have been given and shall take effect when delivered, sent or transmitted by the Lender to the Borrower to the address or email address referred to in this clause 15.2.1;

 

41


15.2.2

notices to the Lender shall be deemed to be given, and shall take effect, when received in full legible form by the Lender at the address and/or the email address appearing below (or at any such other address or email address as the Lender may hereafter specify for such purpose to the Borrower by notice in writing);

Address: Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH 96960, Marshall Islands

e-mail:     nsmfinance@navios.com

if under clause 15.2.1 or this clause 15.2.2 a notice would be deemed to have been given and effective on a day which is not a working day in the place of receipt or is outside the normal business hours in the place of receipt, the notice shall be deemed to have been given and to have taken effect at the opening of business on the next working day in such place.

 

16

GOVERNING LAW

 

16.1

Law

This Agreement and any non-contractual obligations arising out of or in connection with it is governed by and shall be construed in accordance with English law.

 

17

JURISDICTION

 

17.1

Exclusive jurisdiction

Subject to clause 17.4 below, the Borrower and the Lender hereby irrevocably agree that the courts of England shall have exclusive jurisdiction:

 

17.1.1

to settle any disputes or other matters whatsoever arising under or in connection with this Agreement (or any non-contractual obligation arising out of or in connection with this Agreement) and any disputes or other such matters arising in connection with the negotiation, validity or enforceability of this Agreement or any part thereof, whether the alleged liability shall arise under the laws of England or under the laws of some other country and regardless of whether a particular cause of action may successfully be brought in the English courts; and

 

17.1.2

to grant interim remedies or other provisional or protective relief.

 

42


17.2

Submission and service of process

Subject to clause 17.4 below, the Borrower and the Lender accordingly irrevocably and unconditionally submit to the jurisdiction of the English courts. Without prejudice to any other mode of service the Borrower:

 

17.2.1

irrevocably empowers and appoints Messrs Hill Dickinson Services (London) Ltd at present of The Broadgate Tower, 20 Primrose Street, London, EC2A 2EW, England as its agent to receive and accept on its behalf any process or other document relating to any proceedings before the English courts in connection with this Agreement;

 

17.2.2

agrees to maintain such an agent for service of process in England from the date hereof until the end of the Facility Period;

 

17.2.3

agrees that failure by a process agent to notify the Borrower of service of process will not invalidate the proceedings concerned;

 

17.2.4

without prejudice to the effectiveness of service of process on its agent under clause 17.2.1 above but as an alternative method, consents to the service of process relating to any such proceedings by mailing or delivering a copy of the process to its address for the time being applying under clause 15.2;

 

17.2.5

agrees that if the appointment of any person mentioned in clause 17.2.1 ceases to be effective, the Borrower shall immediately appoint a further person in England to accept service of process on its behalf in England and, failing such appointment with in seven (7) days the Lender shall thereupon be entitled and is hereby irrevocably authorised by the Borrower in those circumstances to appoint such person by notice to the Borrower.

 

17.3

Forum non conveniens and enforcement abroad

The Borrower and the Lender:

 

17.3.1

waive any right and agree not to apply to the English court or other court in any jurisdiction whatsoever to stay or strike out any proceedings commenced in England on the ground that England is an inappropriate forum and/or that proceedings have been or will be started in any other jurisdiction in connection with any dispute or related matter falling within clause 17.1; and

 

43


17.3.2

agree that a final non-appealable judgment or order of an English court in a dispute or other matter falling within clause 17.1 shall be conclusive and binding on the Borrower and the Lender and may be enforced against them in the courts of any other jurisdiction.

 

17.4

Right of Lender, but not Borrower, to bring proceedings in any other jurisdiction

 

17.4.1

nothing in this clause 17 limits the right of the Lender to bring proceedings in connection with the enforcement of its security, or the enforcement or recovery of any judgment debt or judicial award or order made (i) in each case, in the courts of England and (ii) under or in relation to this Agreement or any Security Document, including third party proceedings, against the Borrower, or to apply for interim remedies, in any other court and/or concurrently in more than one jurisdiction; and

 

17.4.2

the obtaining by the Lender of judgment in one jurisdiction shall not prevent the Lender from bringing or continuing proceedings in any other jurisdiction proceedings in connection with the enforcement of its security, or the enforcement or recovery of any judgment debt or judicial award or order made (i) in each case, in the courts of England and (ii) under or in relation to this Agreement or any Security Document, whether or not these shall be founded on the same cause of action.

IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed on the date first above written.

 

44


Execution page

BORROWER

 

SIGNED by /s/ Georgios Achniotis, Chief Financial Officer    )
for and on behalf of    )
NAVIOS MARITIME HOLDINGS INC.    )
LENDER   
SIGNED by /s/ Sofia Tavla, Attorney-in-fact    )
for and on behalf of    )
NAVIOS SHIPMANAGEMENT   
HOLDINGS CORPORATION    )


Private and Confidential

Date 13 December 2021

NAVIOS MARITIME HOLDINGS INC. (1)

as Borrower

-and-

NAVIOS SHIPMANAGEMENT HOLDINGS CORPORATION (2)

as Lender

 

 

AMENDING AND RESTATING AGREEMENT RELATING TO A

LOAN AGREEMENT DATED 29 June 2021

 

 

in relation to a Loan Agreement

dated 29 June 2021

 

LOGO

PIRAEUS


Index

 

Clause        Page No  

1

  INTERPRETATION      2  

2

  AMENDMENTS      3  

3

  CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT      3  

4

  AMENDMENTS TO LOAN AGREEMENT AND OTHER SECURITY DOCUMENTS      5  

5

  FURTHER ASSURANCES      6  

6

  FEES AND EXPENSES      6  

7

  NOTICES      6  

8

  SUPPLEMENTAL      7  

9

  LAW AND JURISDICTION      7  


THIS AGREEMENT (this “Agreement”) is made on 13 December 2021

BETWEEN

 

(1)

NAVIOS MARITIME HOLDINGS INC., a corporation incorporated in the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960, as borrower (hereinafter called, the “Borrower”); and

 

(2)

NAVIOS SHIPMANAGEMENT HOLDINGS CORPORATION a corporation incorporated in the Republic of the Marshall Islands and having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960, as lender (hereinafter called, the “Lender”).

BACKGROUND

 

(A)

By a loan agreement dated 29 June 2021 (the “Original Loan Agreement”) and made between (1) the Borrower as borrower and (2) the Lender as lender, the Lender made available to the Borrower a term loan facility of up to US$115,000,000 upon the terms and for the purposes therein specified.

 

(B)

(1) As security for the Borrower’s obligations under the Original Loan Agreement the following (amongst others) security documents have been executed in favour of the Lender (the “Released Security Documents”):

 

  (a)

the Borrowers’ Account Pledge;

 

  (b)

the Collateral Account Pledge;

 

  (c)

the Collateral Guarantor’s Shares Pledge;

 

  (d)

the Collateral Guarantee;

 

  (e)

the Mortgage;

 

  (f)

the Assignment of Earnings and Insurances;

 

  (g)

the Bareboat Charterers’ Shares Pledges;

 

  (h)

the NNA Shares Pledge A;

 

  (i)

the NNA Shares Pledge B;

 

  (j)

the Owners’ Shares Pledges;

each as defined in the Original Loan Agreement.

(2) As security for the Borrower’s obligations under the Original Loan Agreement, the following security documents have been executed in favour of the Lender and shall remain in full force and effect following the occurrence of the Effective Date to secure the obligations under the Amended and Restated Loan Agreement:

(a) the GP Interests Pledge;


(b) the Navios Logistics Share Pledge;

(c) the NMM Partnership Interests Pledge A;

(d) the NMM Partnership Interests Pledge B;

(e) the NMM Partnership Interests Pledge C;

(f) the Securities Account Pledge; and

(g) the Guarantee

each as defined in the Original Loan Agreement.

 

(C)

The Borrower has requested that the Lender to give its consent to the following (together, the “Requests”):

(a) release of the Released Security Documents including the collateral granted under such Released Security Documents;

(b) release from the Securities Account of NM Shipmortgage notes held therein; and

(c) amendment of the Original Loan Agreement on the terms of the Amended and Restated Agreement (as hereinafter defined).

 

(D)

This Agreement sets out the terms and conditions on which the Lender agrees, with effect on and from the Effective Date (as hereinafter defined), to the requests of the Borrower set out in Recital (C) and to the consequential amendments to the Original Loan Agreement.

IT IS AGREED as follows:

 

1

INTERPRETATION

 

1.1

Defined expressions. Words and expressions defined in the Amended and Restated Loan Agreement shall have the same meaning when used in this Agreement unless the context otherwise requires.

 

1.2

Definitions. In this Agreement, unless the contrary intention appears:

“Amended and Restated Loan Agreement” means the Original Loan Agreement, as amended and restated by this Agreement, the terms of which are set out in the Appendix (Amended and Restated Loan Agreement).

Effective Date” means the first Banking Day on which all the conditions precedent referred to in Clause 3.1 have been fulfilled by the Borrower.

New Facility Agreements” means together (a) a facility agreement made or to be made between (i) the Borrower (as borrower) and (ii)HCOB (as lender) for a loan of up to USD105,000,000 and (b) one facility agreements made or to be made between (i) the Borrower (as borrower) and (ii) CACIB/BNP (as lender) for a loan of up to USD105,000,000 and in the singular means any of them and (c) (x) an amending and restating agreement in respect of a loan agreement dated 29 August 2019 made between (i) the Borrower as borrower and (ii) the Lender as lender and (y) the loan agreement amended and restated thereby, in respect of a term loan facility of up to US$127,632,195.

 

2


Released Parties” means together, the parties other than the Lender to the Released Security Documents and in the singular means any one of them.

 

1.3

Incorporation of defined terms

 

(a)

Unless a contrary indication appears, a term defined in the Amended and Restated Loan Agreement, any Released Security Document or Security Document has the same meaning in this Agreement.

 

(b)

The principles of construction set out in the Amended and Restated Loan Agreement shall have effect as if set out in this Agreement.

 

1.4

Clauses

 

(a)

In this Agreement any reference to a “Clause” or “Appendix” is, unless the context otherwise requires, a reference to a Clause or the Appendix of this Agreement.

 

(b)

Clause and Appendix headings are for ease of reference only.

 

1.5

Third Party Rights

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement except with respect to Section 4.2.

 

1.6

Designation

This Agreement is a Loan Document under the Amended and Restated Loan Agreement.

 

2

AMENDMENTS

With effect from the Effective Date the Original Loan Agreement shall be amended and restated so that it shall be read and construed for all purposes as set out in the Appendix (Amended and Restated Loan Agreement).

 

3

CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT

 

3.1

Conditions Precedent. The conditions referred to in the definition of “Effective Date” are that the Lender shall have received the following:

 

3.1.1

Corporate documents

a certificate from a duly authorised officer of Alpha Merit and the Borrower confirming that, as of the Effective Date, none of the documents delivered to the Lender pursuant to paragraph (a) of schedule 2 of the Original Loan Agreement have been amended or modified in any way since the date of their delivery to the Lender, or in the alternative copies thereof, certified by a duly authorised officer of Alpha Merit and, as the case may be, the Borrower as true, complete, accurate and neither amended nor revoked, of any documents which have been amended or modified;

 

3


3.1.2

Corporate authorities

 

(a)

a list of directors and officers of each Security Party , specifying the names and positions of such persons, containing specimen signatures of each director and officer, certified by an officer of the relevant Security Party to be true, complete and up to date as of the Effective Date;

 

(b)

copies of resolutions of the directors of each Security Party approving this Agreement or, as the case may be, the NMM Partnership Interests Pledge C, the Convertible Debenture and/or the endorsement at the end of this Agreement, as applicable, and authorising the execution and delivery hereof and performance of such Security Party’s obligations hereunder or thereunder, certified by an officer of the relevant Security Party as having been duly passed at a duly convened meeting of its directors and shareholders of, and not having been amended, modified or revoked and being in full force and effect;

 

(c)

an original of any power of attorney issued by each Security Party pursuant to such resolutions stated above;

 

3.1.3

NMM Partnership Interests Pledge C

NMM Partnership Interests Pledge C duly executed by Alpha Merit, together with all documents required to be delivered pursuant to the terms thereof;

 

3.1.4

Endorsement

the endorsement at the end of this Agreement signed by each Security Party (other than the Borrower);

 

3.1.5

Required Authorizations

a certificate issued by the Borrower that there are no Required Authorizations or that there are no Required Authorisations except those described in such certificate which have been duly obtained and certified copies of which (including any documents ancillary thereto) are appended thereto;

 

3.1.6

Convertible Debenture

duly executed and delivered copies of the Convertible Debenture;

 

3.1.7

New Facility Agreements

copies of the New Facility Agreements;

 

3.1.8

Representations and Warranties

a certificate issued by the Borrower certifying that the representations and warranties in Clause 7 of the Amended and Restated Loan Agreement, updated with appropriate modifications to refer to this Agreement, remain true and not misleading (giving effect to any materiality qualifiers set forth therein) if repeated on the date of this Agreement with reference to the circumstances now existing.

 

4


3.2

Condition Subsequent. The Borrower shall deliver or cause to be delivered to the Lender on, or as soon as practicable after, the Effective Date, documentary evidence that the agent for service of process named in Clause 18.2.1 of the Original Loan Agreement or another agent for service of process reasonably acceptable to the Lender has accepted its appointment in respect of the Amended and Restated Loan Agreement and the other Loan Documents.

 

4

AMENDMENTS TO LOAN AGREEMENT AND OTHER SECURITY DOCUMENTS

 

4.1

Security Documents. With effect on and from the Effective Date each of the Security Documents shall be, and shall be deemed by this Agreement to be, amended so that the definition of, and references throughout each of the Security Documents to, the Original Loan Agreement and any of the other Security Documents shall be construed as if the same referred to the Amended and Restated Loan Agreement and those Security Documents as amended and supplemented by this Agreement.

The Security Documents shall remain in full force and effect as security for the Outstanding Indebtedness (as defined therein), as amended and supplemented by such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.

 

4.2

Release of Released Parties

With effect on and from the Effective Date and without prejudice to the obligations of the Borrower under the Loan Agreement the Lender hereby:

 

  (a)

releases and discharges each Released Party from all its obligations under the Released Security Documents and terminates the Released Security Documents with the exception of any indemnities contained in any of the Released Security Documents which are expressly stated to survive;

 

  (b)

reassigns and releases to each Released Party all its right, title and interest in, to and under all the property granted or assigned to the Lender or charged in favour of the Lender under the Released Security Documents including, without limitation, any insurances and the proceeds thereof; and

 

  (c)

agrees to, at the Borrower’s expense, execute, sign, and do any and every such further notice, assurance, document, act or thing as may be necessary or desirable to evidence the release contemplated or constituted by this Section 4.2.

The Lender makes and gives no representation, warranty or covenant in relation to the property reassigned herein except that they have not assigned, charged or granted another security interest in respect of that property.

The Lender also agrees that as of the Effective Date the Borrower may withdraw from the Securities Account NM Shipmortgage notes held therein, and it is agreed that the Securities Account Pledge shall remain in full force and effect after any such withdrawal.

 

5


5

FURTHER ASSURANCES

 

5.1

Borrower to execute further documents etc. The Borrower shall:

 

  (a)

execute and deliver to the Lender (or as it may direct) any assignment, mortgage, power of attorney, proxy or other document, governed by the law of England or such other country as the Lender may, in any particular case, reasonably specify; and

 

  (b)

effect any registration or notarisation, give any notice or take any other step, which the Lender may, by notice to the Borrower or other party, reasonably specify

for any of the purposes described in Clause 5.2 or for any similar or related purpose.

 

5.2

Purposes of further assurances. Those purposes are:

 

  (a)

validly and effectively to create any security interest or right of any kind which the Lender intended should be created by or pursuant to the Amended and Restated Loan Agreement or any other Security Document, each as amended and supplemented by this Agreement; and

 

  (b)

implementing the terms and provisions of this Agreement.

 

5.3

Obligation to comply with notice. The Borrower shall comply with a notice under Clause 5.1 by the date reasonably specified in the notice (or such later date as agreed to in writing by the Lender).

 

5.4

Additional corporate action. At the same time as the Borrower or any other party deliver to the Lender any document executed under Clause 5.1(a), the Borrower or such other party shall also deliver to the Lender a certificate signed by the Borrower’s directors, or 2 of that other party’s directors which shall:

 

  (a)

set out the text of resolutions of the Borrower or that other party’s directors specifically authorising the execution of the document specified by the Lender; and

 

  (b)

state that either the resolution was duly passed at a meeting of the directors validly convened and held throughout which a quorum of directors entitled to vote on the resolution was present or that the resolution has been signed by all the directors and is valid under the Borrower’s or that other party’s articles of association or other constitutional documents.

 

6

FEES AND EXPENSES

 

6.1

Fees and Expenses. The provisions of Clause 5 (Fees and expenses) of the Amended and Restated Loan Agreement shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.

 

7

NOTICES

General. The provisions of Clause 16 (Notices) of the Amended and Restated Loan Agreement shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.

 

6


8

SUPPLEMENTAL

 

8.1

Counterparts. This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

 

9

LAW AND JURISDICTION

Application of the Amended and Restated Loan Agreement provisions. This Agreement and any non-contractual obligations arising out of or in connection with it is governed by and shall be construed in accordance with English law. The provisions of Clause 18 (Jurisdiction) of the Amended and Restated Loan Agreement shall apply to this Agreement as if they were expressly set out in this Agreement with any necessary modifications.

IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed as a deed on the date first above written.

 

7


THE BORROWER   
SIGNED and delivered as a Deed    )
by /s/ Georgios Achniotis    )
for and on behalf of    )
NAVIOS MARITIME HOLDINGS INC.    )
as attorney-in-fact    )
Witnessed by:   
Signature /s/ Maria Trivela   
Name: Maria Trivela   
Address: Akti Miaouli 85, Piraeus   
THE LENDER   
SIGNED and delivered as a Deed by    )
and by /s/ Sofia Tavla    )
for and on behalf of    )
NAVIOS SHIPMANAGEMENT    )
HOLDINGS CORPORATION    )
Witnessed by:   
Signature /s/ Maria Trivela   
Name: Maria Trivela   
Address: Akti Miaouli 85, Piraeus   
EX-99.3

Exhibit 99.3

NEITHER THIS DEBENTURE NOR THE SECURITIES INTO WHICH THIS DEBENTURE IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THESE SECURITIES HAVE BEEN ISSUED OR SOLD TO THE HOLDER HEREOF IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

NAVIOS MARITIME HOLDINGS INC.

CONVERTIBLE DEBENTURE

 

Issuance Date: [], 20211

   Original Principal Amount:    $ 24,000,000.00  

No. NM - []

FOR VALUE RECEIVED, NAVIOS MARITIME HOLDINGS INC., a corporation incorporated under the laws of the Republic of the Marshall Islands (the “Company”), hereby promises to pay to Navios Shipmanagement Holdings Corporation or its registered and permitted assigns (the “Holder”) the amount set out above as the Original Principal Amount, as the same may be reduced pursuant to the terms hereof upon conversion or otherwise, or increased pursuant to the terms hereof contemplating payment of PIK Interest (as defined below) or Loan Agreement Increase Events (as defined below) (as so reduced or increased, the “Principal Amount”) when due, on the Maturity Date (as defined below), upon acceleration or otherwise (in each case in accordance with the terms hereof) and to pay interest (the “Interest”) on any outstanding Principal Amount at the applicable Interest Rate (as defined below) from the date set out above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether upon the Maturity Date, acceleration, conversion or otherwise (in each case in accordance with the terms hereof).

This Convertible Debenture (including all Convertible Debentures issued in exchange, transfer or replacement hereof, this “Debenture”) is issued pursuant to the terms of the Loan Agreement originally entered into between the Company and the Holder on August 29, 2019, as amended and restated on December 13, 2021 (the “Amended and Restated 2019 Loan Agreement”) and the Loan Agreement originally entered into on June 29, 2021, as amended and restated on December 13, 2021 (the “Amended and Restated 2021 Loan Agreement” and, together, the “Loan Agreements”). All capitalized terms used in this Debenture but not otherwise defined herein have the meanings set forth in Section 7.

SECTION 1 - GENERAL TERMS

 

  (a)

Payment of Principal Amount.

On the Maturity Date, the Company shall pay the Holder an amount in immediately available funds denominated in United States dollars representing all the outstanding Principal Amount and accrued and unpaid Interest to but excluding such date. The “Maturity Date” shall be [•], 2026 or such later date requested by the Company as the Holder may agree in its absolute discretion. Other than as expressly permitted by this Debenture, the Company may not prepay or redeem any portion of the outstanding Principal Amount without the prior written consent of the Holder.

 

  (b)

Loan Agreement Increase Events.

Upon the happening of any event or circumstance subsequent to the Issuance Date pursuant to which, under the terms of either or both Loan Agreements, the Principal Amount of this Debenture shall be deemed to be increased (including but not limited to as a result of the election by the Company to not pay all or a portion of the interest due in cash under either or both such Loan Agreements) (each, a “Loan Agreement Increase Event”), the Principal Amount of this Debenture shall be deemed increased by the principal amount contemplated as of the relevant date under the terms of the applicable Loan Agreement(s).

The Holder and the Company shall maintain records showing any such increases in the Principal Amount as a result of Loan Agreement Increase Events under this Section 1(b), as well as increases in the Principal Amount

 

1 

NTD: Issuance Date to be the the date on which the upfront fee is payable under the Fee Letter (i.e. Effective Date under the Amending and Restating Agreements to the Loan Agreements).

 

1


as a result of PIK Interest under Section 1(c), and decreases in the Principal Amount and Interest as a result of conversions pursuant to Sections 2 or 3, and the dates of any such increases or decreases, in order to facilitate conversions of this Debenture from time to time pursuant to its terms without physical surrender.

 

  (c)

Interest.

Interest shall accrue daily on the outstanding balance of the Principal Amount at a rate equal to 4% per annum (“Interest Rate”) from the Issuance Date to (but excluding) the Maturity Date (or sooner if upon conversion or acceleration by the Holder as provided herein). Interest will be payable quarterly in arrears on the same dates on which interest payments are due and payable under the Loan Agreements, in each case by adding the accrued amounts of Interest to the then outstanding Principal Amount due under this Debenture (the “PIK Interest”). Interest will be payable to the Holder or its registered and permitted assignee. Notwithstanding any other provision of this Debenture, Interest that is paid in the form of PIK Interest in the manner specified in this Section 3(c) shall be considered paid, and shall not be considered overdue. Interest shall be calculated on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed during the period.

 

  (d)

Non-Detachable Preferred Shares.

The Company has issued this Debenture as part of a unit with 1,000 shares of Series I Non-Economic Preferred Stock of the Company (the “Series I Preference Shares”) reflecting the terms set forth in the Certificate of Designation, Preferences and Rights of the Series I Preference Shares of the Company. The Series I Preference Shares are not detachable from this Debenture and this Debenture (or, if less than the entire outstanding Principal Amount is to be sold, assigned or otherwise transferred, the relevant portion hereof) accordingly may not be sold, assigned or otherwise transferred except in conjunction with a simultaneous sale of (or, as applicable, a proportional portion of) the Series I Preference Shares.

SECTION 2 - EVENTS OF DEFAULT

 

  (a)

Event of Default.

An “Event of Default”, wherever used herein, means any one of the following events (whatever the reason and whether it shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body):

 

  i.

the Company’s failure to pay to the Holder the Principal Amount or any other amounts when and as due under this Debenture;

 

  ii.

if the Common Stock ceases to be quoted or listed for trading on the New York Stock Exchange (the “Primary Market”) and shall not again be quoted or listed for trading within five (5) Trading Days of such delisting;

 

  iii.

the Company’s (A) failure to deliver the required number of shares of Common Stock within five (5) Business Days after the applicable Conversion Date or (B) repudiation by the Company, at any time, including by way of public announcement of its obligation to comply with a request for conversion of the Debenture into shares of Common Stock in accordance with the provisions of the Debenture, other than pursuant to Section 3(e);

 

  iv.

the Company shall fail to observe or perform any other covenant, agreement or warranty contained in, or otherwise commit any breach or default of any provision of this Debenture (except as may be covered by Section 2(a)(i) through Section 2(a)(iii) hereof) which is not cured within thirty (30) Business Days of the Holder giving written notice to the Company of, or the Company becoming aware of the occurrence thereof;

 

  v.

prior to the repayment of both Loan Agreements, an “Event of Default” has occurred and is continuing under either or both of the Loan Agreements;

 

  vi.

following the repayment of both Loan Agreements, the Company or any significant subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) (a “Significant Subsidiary”) of the Company shall commence, or there shall be commenced against the Company or any significant subsidiary of the Company under any applicable bankruptcy or insolvency laws as now or hereafter in effect or any

 

2


  successor thereto, or the Company or any Significant Subsidiary of the Company commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Company or any Significant Subsidiary of the Company or there is commenced against the Company or any Significant Subsidiary of the Company any such bankruptcy, insolvency or other proceeding which remains undismissed for a period of sixty one (61) days; or the Company or any Significant Subsidiary of the Company is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Company or any Significant Subsidiary of the Company suffers any appointment of any custodian, private or court appointed receiver or the like for it or any substantial part of its property which continues undischarged or unstayed for a period of sixty one (61) days; or the Company or any Significant Subsidiary of the Company makes a general assignment for the benefit of creditors; or the Company or any Significant Subsidiary of the Company shall fail to pay, or shall state that it is unable to pay, or shall be unable to pay, its debts generally as they become due; or the Company or any Significant Subsidiary of the Company shall call a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts; or the Company or any Significant Subsidiary of the Company shall by any act or failure to act expressly indicate its consent to, approval of or acquiescence in any of the foregoing; or any corporate or other action is taken by the Company or any Significant Subsidiary of the Company for the purpose of effecting any of the foregoing; or

 

  vii.

following the repayment of both Loan Agreements, without the prior written consent of the Holder, the Designated Shareholders fail to, either individually or together, be the ultimate beneficial owner(s) of, or have ultimate control of the voting rights attaching to, at least 10 per cent of all of the outstanding voting shares in the Company (other than as a result of a sale by the Designated Shareholders).

During the time that any portion of this Debenture is outstanding, if any Event of Default has occurred and is continuing, the full unpaid Principal Amount of this Debenture, together with interest and other amounts owing in respect thereof, to the date of acceleration shall become at the Holder’s election, immediately due and payable in immediately available funds denominated in United States dollars; provided, however, the Holder may request (but shall have no obligation to request) payment of such amounts in Common Stock of the Company. If an Event of Default occurs and, following written notice from each Holder to the Company, for so long thereafter following such notice as such Event of Default remains uncured, without duplication of any default interest otherwise payable under the terms of the Loan Agreements, the Interest Rate on this Debenture shall immediately increase by 2% per annum in excess of the interest rate specified in Section 1(c) to the extent lawful and shall remain at such increased interest rate until the applicable Event of Default is cured. Furthermore, in addition to any other remedies, the Holder shall have the right (but not the obligation) to convert this Debenture at any time (x) after the occurrence and during the continuance of an Event of Default at the Conversion Price then in effect or (y) on or after the Maturity Date at the Conversion Price then in effect. The Holder need not provide and the Company hereby waives any presentment, demand, protest or other notice of any kind (other than required notice of conversion) and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded and annulled by Holder at any time prior to payment hereunder. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.

SECTION 3 - CONVERSION OF DEBENTURE

This Debenture shall be convertible into shares of the Company’s Common Stock, on the terms and conditions set forth in this Section 3.

 

  (a)

Conversion Right.

At any Trading Day on or after the Issuance Date, on one or more occasions, the Holder shall be entitled to convert, at its option, any Conversion Amount into fully paid and non-assessable shares of Common Stock in accordance with this Section 3.

 

  (b)

Mandatory Conversion.

At any time at or following the repayment in full of both Loan Agreements, if the VWAP per share of Common Stock is greater than the Mandatory Conversion Price for each of at least twenty (20) Trading Days in any period of thirty (30) consecutive Trading Days (such thirty (30) consecutive Trading Day period, the “Trading Period”), the Company may elect to convert (a “Mandatory Conversion”) the entire Principal Amount and accrued Interest (to but excluding the Mandatory Conversion Date (as defined below)) of this Debenture (in whole but not in part) into shares of Common Stock (the date selected by the Company for any Mandatory Conversion pursuant to this Section 3(b), the “Mandatory Conversion Date”).

 

3


  (c)

Shares Issuable on Conversion.

 

  i.

The number of shares of Common Stock issuable upon any conversion pursuant to Section 3(a) or Section 3(b) shall be determined by dividing (x) the Conversion Amount or, in the case of the Mandatory Conversion, the entire Principal Amount and accrued Interest of this Debenture (to but excluding the applicable date of such conversion) by (y) the Conversion Price then in effect (the “Conversion Rate”).

 

  ii.

The Company shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up to the nearest whole share. The Company shall pay any and all transfer, stamp and similar taxes that may be payable with respect to the issuance and delivery of Common Stock upon any such conversion.

 

  (d)

Mechanics of Conversion.

 

  i.

Optional Conversion. To convert any Conversion Amount into shares of Common Stock on any Trading Day pursuant to Section 3(a) (an “Optional Conversion Date” and together with a Mandatory Conversion Date, each a “Conversion Date”), the Holder shall:

 

  a.

transmit by electronic mail (or otherwise deliver), for receipt on or prior to 11:59 p.m., New York Time, on the immediately preceding Business Day, a copy of an executed notice of conversion in the form attached hereto as Exhibit I (the “Optional Conversion Notice”) to the Company, and

 

  b.

if required by Section 3(d)(iii), surrender this Debenture to a nationally recognized overnight delivery service for delivery to the Company (or an indemnification undertaking reasonably satisfactory to the Company with respect to this Debenture in the case of its loss, theft or destruction).

 

  ii.

Notice of Mandatory Conversion. If the Company elects to effect a Mandatory Conversion pursuant to Section 3(b), the Company shall, within ten (10) Business Days following the completion of the applicable thirty (30) day Trading Period, provide notice of the Mandatory Conversion to each Holder (such notice, a “Notice of Mandatory Conversion”). For the avoidance of doubt, a Notice of Mandatory Conversion does not limit the Holder’s right to convert on an Optional Conversion Date prior to the Mandatory Conversion Date. The Mandatory Conversion Date selected by the Company shall be no less than ten (10) Business Days and no more than twenty (20) Business Days after the date on which the Company provides the Notice of Mandatory Conversion to the Holder.

 

  iii.

Book-Entry. Notwithstanding anything to the contrary set forth herein, upon conversion of any portion of this Debenture in accordance with the terms hereof, the Holder shall not be required to physically surrender this Debenture to the Company unless (A) the entire Principal Amount and accrued Interest represented by this Debenture is being converted or (B) the Holder has provided the Company with prior written notice (which notice may be included in an Optional Conversion Notice) requesting reissuance of this Debenture upon physical surrender of this Debenture.

 

  (e)

Other Provisions.

 

  i.

All calculations under this Section 3 shall be rounded to the nearest $0.0001 or whole share.

 

  ii.

The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock (or other securities that may be issuable upon conversion of this Debenture) solely for the purpose of issuance upon conversion of this Debenture, free from preemptive rights or any other actual contingent purchase rights of persons other than the Holder, not less than such number of shares of the Common Stock (or other securities that may be issuable upon conversion of this Debenture) as shall (subject to any additional requirements of the Company as to reservation of such shares (or other securities) set forth in this Debenture) be issuable (taking into account the adjustments and restrictions set forth herein) upon the conversion of the outstanding Principal Amount and Interest of this Debenture. The Company covenants that all shares of Common Stock (or other securities that may be issuable upon conversion of this Debenture) that shall be so issuable shall, upon issue, be duly and validly authorized, issued and fully paid and non-assessable.

 

4


  iii.

Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 2 herein for the Company’s failure to deliver certificates representing shares of Common Stock within five (5) Business Days of the applicable Conversion Date and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, in each case without the need to post a bond or provide other security. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

SECTION 4 - ADJUSTMENTS TO CONVERSION PRICE AND MANDATORY CONVERSION PRICE; PRO RATA DISTRIBUTIONS

 

  (a)

Adjustments to Conversion Price and Mandatory Conversion Price.

The Conversion Price shall be subject to adjustment from time to time as follows:

 

  i.

Upon Stock Dividends, Subdivisions or Splits. If, at any time after the Issuance Date, the number of shares of Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split up of shares of Common Stock, then, following the record date for the determination of holders of Common Stock entitled to receive such stock dividend, or to be affected by such subdivision or split up, the Conversion Price and the Mandatory Conversion Price shall be appropriately decreased so that the number of shares of Common Stock issuable on conversion of this Debenture shall be increased in proportion to such increase in outstanding shares.

 

  ii.

Upon Combinations or Reverse Stock Splits. If, at any time after the Issuance Date, the number of shares of Common Stock outstanding is decreased by a combination or reverse stock split of the outstanding shares of Common Stock into a smaller number of shares of Common Stock, then, following the record date to determine shares affected by such combination or reverse stock split, the Conversion Price and the Mandatory Conversion Price shall be appropriately increased so that the number of shares of Common Stock issuable on conversion of this Debenture shall be decreased in proportion to such decrease in outstanding shares.

 

  iii.

Upon Reclassification, Merger or Sale of Assets. If, at any time or from time to time, there shall be a reclassification or capital reorganization of the Common Stock (other than a stock dividend, subdivision, split up combination or reverse stock splits provided for elsewhere in this Section 4(a)) or a merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all of the Company’s properties and assets to any other person, then, as a part of such reorganization, merger, or consolidation or sale, provision shall be made so that Holder, as the case may be, shall thereafter be entitled to receive upon conversion of this Debenture, the number of shares of stock or other securities or property to which the Holder would have been entitled if the Holder had converted this Debenture immediately prior to such reclassification, capital reorganization, merger, consolidation or sale (subject to increase to the extent that the Principal Amount and accrued Interest of this Debenture subsequently increases). In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 4(a) with respect to the rights of the Holder after the reclassification, reorganization, merger, consolidation or sale to the end that the provisions of this Section 4(a), including adjustment of the Conversion Price and the Mandatory Conversion Price then in effect for this Debenture and the number and type of shares or other securities issuable upon conversion of this Debenture shall be applicable after that event in as nearly equivalent a manner as may be practicable.

 

  (b)

Notice of Adjustment.

Whenever there is an adjustment pursuant to this Section 4, the Company shall promptly mail to the Holder a notice setting forth the Conversion Price and the Mandatory Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

 

5


  (c)

Pro Rata Distributions.

During such time as this Debenture is outstanding, if the Company shall declare or make any dividend whether or not permitted, or make any other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon conversion of this Debenture immediately before the date of which a record is taken for such Distribution (or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution).

SECTION 5 - REISSUANCE OF THIS DEBENTURE

 

  (a)

Transfer.

If this Debenture is to be transferred, the Holder shall surrender this Debenture to the Company, whereupon the Company will, subject to Section 5(e), forthwith issue and deliver upon the order of the Holder a new Debenture (in accordance with Section 5(d)), registered in the name of the registered transferee or assignee, representing the outstanding Principal Amount being transferred by the Holder and, if less than the entire outstanding Principal Amount is being transferred, a new Debenture (in accordance with Section 5(d)) to the Holder representing the outstanding Principal Amount not being transferred. Upon accepting this Debenture, the Holder and any assignee acknowledge and agree that, by reason of conversion of any portion of this Debenture, the outstanding Principal Amount represented by this Debenture may be less than the Principal Amount stated on the face of this Debenture.

 

  (b)

Lost, Stolen or Mutilated Debenture.

Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Debenture, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Debenture, the Company shall execute and deliver to the Holder a new Debenture (in accordance with Section 5(d)) representing the outstanding Principal Amount.

 

  (c)

Debenture Exchangeable for Different Denominations.

This Debenture is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Debenture or Debentures (in accordance with Section 5(d)) representing in the aggregate the outstanding Principal Amount of this Debenture, and each such new Debenture will represent such portion of such outstanding Principal Amount as is designated by the Holder at the time of such surrender.

 

  (d)

Issuance of New Debentures.

Whenever the Company is required to issue a new Debenture pursuant to the terms of this Debenture, such new Debenture (i) shall be of like tenor with this Debenture, (ii) shall represent, as indicated on the face of such new Debenture, the Principal Amount remaining outstanding (or in the case of a new Debenture being issued pursuant to Section 5(a) or Section 5(c), the Principal Amount designated by the Holder which, when added to the principal represented by the other new Debentures issued in connection with such issuance, does not exceed the Principal Amount remaining outstanding under this Debenture immediately prior to such issuance of new Debentures), (iii) shall have an issuance date, as indicated on the face of such new Debenture, which is the same as the Issuance Date of this Debenture, and (iv) shall have the same rights and conditions as this Debenture. For the avoidance of doubt, the issuance of a new Debenture shall not release the Company’s obligations with respect to any accrued and unpaid Interest payable on the Principal Amount remaining outstanding.

 

  (e)

Transfer Restrictions.

This Debenture (or any portion hereof) may be assigned or transferred by the Holder to another person only in connection with an assignment or participation by the Holder in its capacity as Lender under and as defined in any of the Loan Agreements and in any event in a Principal Amount corresponding to the percentage of the aggregate Advances under and as defined in the Loan Agreements assigned or participated to such person, in each case as reflected in the Registers under and as defined in the Loan Agreements.

 

6


In addition, this Debenture (or any portion hereof) (and any Common Stock that may be issued on conversion of this Debenture as contemplated herein) may be offered, sold, pledged or otherwise transferred only (i) pursuant to an effective registration statement under the Securities Act, or (ii) pursuant to any other exemption from the registration requirements of the Securities Act.

SECTION 6 - MERGER

The Company shall not merge or consolidate with or into or directly or indirectly sell all or substantially all of its properties and assets to any other person unless: (i) the Company is the surviving person; and (ii) immediately after giving effect to the transaction, no Event of Default (or any event which is, or after notice or passage of time or both would be, an Event of Default), shall have occurred and be continuing.

SECTION 7 - NOTICES AND OTHER

 

  (a)

Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered upon: (i) receipt, when delivered personally, (ii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same, or (iii) receipt, when sent by electronic mail (provided that the electronic mail transmission is not returned in error or the sender is not otherwise notified of any error in transmission. The addresses and email addresses for such communications shall be:

 

If to the Company, to:   

Strathvale House

90 N Church Street

P.O. Box 309

Grand Cayman, KY1-1104 Cayman Islands

Email: lwebster@navios.com

If to the Holder, to:   

Trust Company Complex

Ajeltake Road

Ajeltake Island, Majuro MH 96960, Marshall Islands

Email: nsmfinance@navios.com

or at such other address and/or electronic email address and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver or other communication, (ii) mechanically or electronically generated by the sender’s computer containing the time, date, recipient’s electronic mail address and the text of such electronic mail or (iii) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by electronic mail or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

 

  (b)

Except as expressly provided herein, no provision of this Debenture shall alter or impair the obligations of the Company, which are absolute and unconditional, to pay the principal of, interest and other charges (if any) on this Debenture at the time, place, and rate, and in the coin or currency, herein prescribed. This Debenture is a direct obligation of the Company. As long as this Debenture is outstanding, the Company shall not and shall cause their subsidiaries not to, without the consent of the Holder, amend (or enter into any agreement to amend) its certificate of incorporation, bylaws or other charter documents so as to materially adversely affect any rights of the Holder (which shall include combining (by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares.

 

  (c)

Without prejudice to the rights conferred on the Holder through the Series I Preference Shares, this Debenture shall not entitle the Holder to any of the rights of a stockholder of the Company, including without limitation, the right to vote, to receive dividends and other distributions, or to receive any notice of, or to attend, meetings of stockholders or any other proceedings of the Company, unless and to the extent converted into shares of Common Stock in accordance with the terms hereof.

 

  (d)

[reserved].

 

  (e)

This Debenture shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to conflicts of laws thereof. Each of the parties consents to the jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan, New York and the U.S. District Court for the Southern

 

7


  District of New York sitting in the Borough of Manhattan, New York in connection with any dispute arising under this Debenture and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens to the bringing of any such proceeding in such jurisdictions.

 

  (f)

If the Company fails to strictly comply with the terms of this Debenture, then the Company shall reimburse the Holder promptly for all reasonable and documented out-of-pocket fees, costs and expenses, including, without limitation, reasonable and documented out-of-pocket attorneys’ fees and expenses incurred by the Holder in any action in connection with this Debenture, including, without limitation, those incurred: (i) during any workout, attempted workout, and/or in connection with the rendering of legal advice as to the Holder’s rights, remedies and obligations, (ii) collecting any sums which become due to the Holder, (iii) defending or prosecuting any proceeding or any counterclaim to any proceeding or appeal; or (iv) the protection, preservation or enforcement of any rights or remedies of the Holder.

 

  (g)

Any waiver by the Holder of a breach of any provision of this Debenture shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Debenture. The failure of the Holder to insist upon strict adherence to any term of this Debenture on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Debenture. Any waiver must be in writing.

 

  (h)

If any provision of this Debenture is invalid, illegal or unenforceable, the balance of this Debenture shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances. If it is found that any interest or other amount deemed interest due hereunder shall violate applicable laws governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum permitted rate of interest. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the Principal Amount of or Interest on this Debenture as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this indenture, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has been enacted.

 

  (i)

Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

 

  (j)

THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES’ ACCEPTANCE OF THIS AGREEMENT.

SECTION 8 - CERTAIN DEFINITIONS

For purposes of this Debenture, the following terms shall have the following meaning:

 

  (a)

Bloomberg” means Bloomberg Financial Markets.

 

  (b)

Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or a day on which banking institutions are authorized or required by law or other government action to close or are in fact closed.

 

  (c)

Conversion Amount” means at any time the portion of the Principal Amount and accrued Interest to then be converted as determined by the Holder.

 

  (d)

Conversion Price” means, as of any applicable Conversion Date or other date of determination, US$ 3.93, subject to adjustment as provided for herein. For the avoidance of doubt, all determinations of the Conversion Price are intended to reflect appropriate adjustment for any stock split, stock dividend, stock combination or other similar transaction as provided for herein.

 

  (e)

Designated Shareholder” means Mrs. Angeliki Frangou either directly or indirectly (through entities owned and controlled by her or trusts or foundations of which she is the beneficiary).

 

8


  (f)

Mandatory Conversion Price” means of any date of determination, US$ 9.58, subject to adjustment as provided for herein. For the avoidance of doubt, all determinations of the Mandatory Conversion Price are intended to reflect appropriate adjustment for any stock split, stock dividend, stock combination or other similar transaction as provided for herein.

 

  (g)

Common Stock” means the common stock of the Company and stock of any other class into which such shares may hereafter be changed or reclassified.

 

  (h)

Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

  (i)

Person” or “person” means a corporation, an association, a partnership, organization, a business, an individual, a government or political subdivision thereof or a governmental agency

 

  (j)

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

  (k)

Trading Day” means a day on which the shares of Common Stock are quoted on the Primary Market on which the shares of Common Stock are then quoted or listed; provided, that in the event that the shares of Common Stock are not listed or quoted, then Trading Day shall mean a Business Day.

 

  (l)

VWAP” means, for any security as of any date, the daily dollar volume-weighted average price for such security as reported by Bloomberg, LP through its “Historical Price Table Screen (HP)” with Market: Weighted Avg function selected, or, if no dollar volume-weighted average price is reported for such security by Bloomberg, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc.

[Signature Page Follows]

 

9


IN WITNESS WHEREOF, the Company has caused this Convertible Debenture to be duly executed by a duly authorized officer as of the date set forth above.

 

NAVIOS MARITIME HOLDINGS INC.

 

Name:
Title:

 

10

EX-99.4

Exhibit 99.4

Dated 14 December 2021

KLEIMAR NV

WHITE NARCISSUS MARINE S.A.

FAITH MARINE LTD.

RED ROSE SHIPPING CORP.

JASMINE SHIPPING CORPORATION and

MOONSTONE SHIPPING CORPORATION

as joint and several Borrowers

and

THE BANKS AND FINANCIAL INSTITUTIONS

listed in Schedule 1

as Lenders

and

HAMBURG COMMERCIAL BANK AG

as Agent, Mandated Lead Arranger

and Security Trustee

LOAN AGREEMENT

relating to a senior secured post-delivery term

loan facility of up to US$105,000,000

to provide finance secured on seven bulk carriers

 

LOGO


Index

 

Clause        Page  

1

  Intepretation      3  

2

  Facility      25  

3

  Position of the Lenders      26  

4

  Drawdown      26  

5

  Interest      27  

6

  Interest Periods      30  

7

  Default Interest      31  

8

  Repayment and Prepayment      32  

9

  Conditions Precedent      35  

10

  Representations and Warranties      36  

11

  General Undertakings      40  

12

  Corporate Undertakings      45  

13

  Insurance      47  

14

  Ship Covenants      54  

15

  Security Cover      59  

16

  Payments and Calculations      61  

17

  Application of Receipts      63  

18

  Application of Earnings      65  

19

  Events of Default      67  

20

  Fees and Expenses      72  

21

  Indemnities      74  

22

  No Set-Off or Tax Deduction      77  

23

  Illegality, etc.      79  

24

  Increased Costs      80  

25

  Set-Off      82  

26

  Transfers and Changes in Lending Offices      82  

27

  Variations and Waivers      88  

28

  Notices      91  

29

  Joint and Several Liability      93  

30

  Supplemental      94  

31

  Law and Jurisdiction      95  

Schedule 1 Lenders and Commitments

     94  

Schedule 2 Drawdown Notice

     95  

Schedule 3 Condition Precedent Documents

     96  

Schedule 4 Mandatory Cost Formula

     100  

Schedule 5 Transfer Certificate

     102  

Schedule 6 Power of Attorney

     106  

Schedule 7 Details of Ships and Initial Charters and other definitions

     107  

Schedule 8 Form of Excess Cash Certificate

     108  

Execution Pages

     112  

 

2


THIS AGREEMENT is made on [•] December 2021

PARTIES

 

(1)

KLEIMAR NV, a public limited liability company incorporated in Belgium and having its registered office at 5 Suikerrui, 2000 Antwerp, Belgium, registered with the Crossroads Bank for Enterprises under number 0426.557.894, RLE Antwerp, Antwerp division, WHITE NARCISSUS MARINE S.A., a company incorporated in Panama and having its registered address is at 53rd Street Urbanizacion Obartio, Swiss Tower, 16th Floor, Panama, Republic of Panama, FAITH MARINE LTD., a corporation incorporated in Liberia having its registered address at 80 Broad Street, Monrovia, Liberia and RED ROSE SHIPPING CORP., JASMINE SHIPPING CORPORATION and MOONSTONE SHIPPING CORPORATION, each a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960, as joint and several Borrowers;

 

(2)

THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1, as Lenders;

 

(3)

HAMBURG COMMERCIAL BANK AG acting through its office at Gerhart-Hauptmann-Platz 50, 20095 Hamburg, Germany, as Agent;

 

(4)

HAMBURG COMMERCIAL BANK AG acting through its office at Gerhart-Hauptmann-Platz 50, 20095 Hamburg, Germany, as Mandated Lead Arranger; and

 

(5)

HAMBURG COMMERCIAL BANK AG acting through its office at Gerhart-Hauptmann-Platz 50, 20095 Hamburg, Germany, as Security Trustee.

BACKGROUND

The Lenders have agreed to make available to the Borrowers a senior secured post-delivery term loan facility in one advance in an amount of up to the lesser of (i) $105,000,000 and (ii) 65 per cent. of the aggregate Initial Market Value of the Ships, for the purpose of partial refinancing the Mortgage Notes Indebtedness secured on Ship A, Ship B, Ship C, Ship D, Ship E, Ship F and Ship G.

OPERATIVE PROVISIONS

IT IS AGREED as follows:

 

1

INTEPRETATION

 

1.1

Definitions

Subject to Clause 1.5, in this Agreement:

Account” means each of the Earnings Accounts, the Minimum Liquidity Account, the Reserve Account and the Retention Account and, in the plural, means all of them;

Account Bank” means Hamburg Commercial Bank AG, acting in such capacity through its office at Gerhart-Hauptmann-Platz 50, 20095 Hamburg, Germany, or any successor;

Account Pledge” means, in relation to each Account, a pledge agreement creating security in respect of that Account in the Agreed Form and, in the plural, means all of them;

 

3


Additional Minimum Liquidity Amount” has the meaning given to such term in Schedule 7 (Details of Ship and other definitions);

Advance” means the principal amount of the borrowing by the Borrowers under this Agreement in respect of the Ships or, as the context may require, the principal amount outstanding of the Advance under this Agreement;

Affected Lender” has the meaning given in Clause 5.7;

Agency and Trust Deed” means the agency and trust deed executed or to be executed between the Borrowers and the Creditor Parties in the Agreed Form;

Agent” means Hamburg Commercial Bank AG, acting in such capacity through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, or any successor of it appointed under clause 5 of the Agency and Trust Deed;

Agreed Form” means in relation to any document, that document in the form approved in writing by the Agent (acting on the instructions of the Majority Lenders) or as otherwise approved in accordance with any other approval procedure specified in any relevant provisions of any Finance Document;

Applicable Lender” has the meaning given in Clause 5.2;

Approved Broker” means each of Arrow Valuations Ltd, Barry Rogliano Salles, H. Clarkson & Co. Ltd., Maersk Brokers K/S, Howe Robinson & Co Ltd London and Fearnleys and Simpson Spence Young and, in the plural, means all of them;

“Approved Flag” means, in relation to a Ship, the Panamanian, Cypriot, Liberian flag or such other flag as the Agent may approve (with the authorisation of the Majority Lenders) as the flag on which that Ship is or, as the case may be, shall be registered;

“Approved Flag State” means, in relation to a Ship, the Republic of Panama, the Republic of Cyprus, the Republic of Liberia or any other country in which the Agent may approve (with the authorisation of the Majority Lenders) that that Ship is or, as the case may be, shall be registered;

“Approved Manager” means, in respect of a Ship:

 

(a)

Navios Shipmanagement Inc., Navios International Management Inc., Kleimar Ltd. or Navios Corporation Management Inc., each a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

 

(b)

Synergy Marine PTE. LTD. as technical managers, whose registered address is at 1, Kim Seng Promenade, #10-11/12, West Tower, Great World City, Singapore 237994;

 

(c)

Synergygroup Operations Inc. as crew managers, whose registered address is at 3rd Floor Universal LMS Building, 106 Esteban Street,Legaspi Village, Makati City, Philippines , 1229;

 

4


(d)

Synergy Maritime Recruitment Services Private Limited, as sub crew managers, whose registered address is at 4th Floor AKDR Tower, 3/381 Rajiv Gandhi Salai (OMR), Mettukuppam, Chennai – 600097, India; or

 

(e)

any other company which is a subsidiary or affiliate of Navios Shipmanagement Inc. or of Angeliki Frangou or any other company which the Agent (acting on the instructions of the Majority Lenders) may approve from time to time as the commercial and/or technical manager of that Ship;

Approved Manager’s Undertaking” means, in relation to a Ship, a letter of undertaking including (inter alia) an assignment of the Approved Manager’s rights, title and interest in the Insurances of that Ship executed or to be executed by the Approved Manager in favour of the Security Trustee in the Agreed Form agreeing certain matters in relation to the Approved Manager serving as manager and subordinating its rights against that Ship and the Borrower which is the owner thereof to the rights of the Creditor Parties under the Finance Documents and, in the plural, means all of them;

Assignable Charter” means the Initial Charter and any time charterparty, consecutive voyage charter or contract of affreightment in respect of a Ship having a duration (or capable of exceeding a duration) equal or more than 12 months and any guarantee of the obligations of the charterer under such charter or any bareboat charter in respect of that Ship and any guarantee of the obligations of the charterer under such bareboat charter, entered or to be entered into by the Borrower which is the owner thereof and a charterer or, as the context may require, bareboat charterer and, in the plural, means all of them;

“Availability Period” means the period commencing on the date of this Agreement and ending on:

 

  (a)

31 January 2022 (or such later date as the Agent may, with the authorisation of the Majority Lenders, agree with the Borrowers); or

 

  (b)

if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated;

Balloon Instalment” has the meaning given in Clause 8.1;

Basel III” means, together:

 

  (a)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

  (b)

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

  (c)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”;

 

5


Borrower” means each of Borrower A, Borrower B, Borrower C, Borrower D, Borrower E and Borrower F and, in the plural, means all of them;

Borrower A” means Kleimar NV, a public limited liability company incorporated in Belgium and having its registered office at 5 Suikerrui, 2000 Antwerp, Belgium, registered with the Crossroads Bank for Enterprises under number 0426.557.894, RLE Antwerp, Antwerp division;

Borrower B” means White Narcissus Marine S.A., a corporation incorporated and existing under the laws of the Republic of Panama whose registered address is at 53rd Street Urbanizacion Obartio, Swiss Tower, 16th Floor, Panama, Republic of Panama;

Borrower C” means Faith Marine Ltd., a corporation incorporated and existing under the laws of the Republic of Liberia whose registered address is at 80 Broad Street, Monrovia, Liberia;

Borrower D” means Red Rose Shipping Corp., a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

Borrower E” means Jasmine Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

Borrower F” means Moonstone Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

Break Costs” has the meaning given in Clause 21.2;

Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business:

 

  (a)

in Hamburg, Piraeus, Athens and London regarding the fixing of any interest rate which is required to be determined under this Agreement or any Finance Document;

 

  (b)

in Hamburg, New York and Piraeus in respect of any payment which is required to be made under a Finance Document; and

 

  (c)

in Hamburg, Athens and Piraeus regarding any other action to be taken under this Agreement or any other Finance Document;

Cancellation Notice” has the meaning given in Clause 8.6;

Change of Control” means, in relation to:

 

  (a)

a Borrower, a change in:

 

  (i)

the beneficial ownership of any of the shares in that Borrower; or

 

  (ii)

the legal ownership of any of those shares; or

 

6


  (b)

the Corporate Guarantor, change which results in Mrs Angeliki Frangou either directly or indirectly (through entities owned and controlled by her or trusts or foundations of which she is the beneficiary) being the ultimate beneficial owner of, or having ultimate control of the voting rights attaching to, less than 10 per cent. of all the issued and outstanding voting shares in the Corporate Guarantor;

Charterparty Assignment” means, in relation to an Assignable Charter, an assignment of the rights of the Borrower who is a party to that Assignable Charter under that Assignable Charter and any guarantee of such Assignable Charter executed or to be executed by that Borrower in favour of the Security Trustee in the Agreed Form and, in the plural, means all of them;

Code” means the US Internal Revenue Code of 1986;

Commitment” means, in relation to a Lender, the amount set opposite its name in Schedule 1, or, as the case may require, the amount specified in the relevant Transfer Certificate, as that amount may be reduced, cancelled or terminated in accordance with this Agreement (and “Total Commitments” means the aggregate of the Commitments of all the Lenders);

Compliance Certificate” means a certificate in the form set out in Schedule 1 of the Corporate Guarantee (or in any other form which the Agent approves or requires) to be provided at the times and in the manner set out in Clause 11.20;

Contractual Currency” has the meaning given in Clause 21.6;

Contribution” means, in relation to a Lender, the part of the Loan which is owing to that Lender;

Corporate Guarantee” means a guarantee of the obligations of the Borrowers under this Agreement and the other Finance Documents to which each Borrower is a party, in the Agreed Form;

Corporate Guarantor” means Navios Maritime Holdings Inc., a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

Correction Rate” means, at any relevant time in relation to an Applicable Lender, the amount (expressed as a rate per annum) by which that Lender’s Cost of Funding exceeds LIBOR;

Cost of Funding” means, in relation to a Lender, the rate per annum determined by that Lender to be the rate at which deposits in Dollars are offered to that Lender by leading banks in the Relevant Interbank Market at that Lender’s request at or about the Specified Time on the Quotation Date for an Interest Period and for a period equal to that Interest Period and for delivery on the first Business Day of it, or, if that Lender uses other ways to fund deposits in Dollars, such rate as determined by that Lender to be the Lender’s cost of funding deposits in Dollars for that Interest Period, such determination being conclusive and binding in the absence of manifest error;

Creditor Party” means the Agent, the Security Trustee, the Mandated Lead Arranger or any Lender, whether as at the date of this Agreement or at any later time and, in the plural, means all of them;

 

7


Disruption Event” means either or both of:

 

  (a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

  (b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:

 

  (i)

from performing its payment obligations under the Finance Documents; or

 

  (ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted;

Dollars” and “$” means the lawful currency for the time being of the United States of America;

Drawdown Date” means the date requested by the Borrowers for the Advance to be borrowed, or (as the context requires) the date on which the Advance is actually borrowed;

Drawdown Notice” means a notice in the form set out in Schedule 2 (or in any other form which the Agent approves or reasonably requires);

Earnings” means, in relation to a Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower owning that Ship or the Security Trustee and which arise out of the use or operation of that Ship, including (but not limited to):

 

  (a)

except to the extent that they fall within paragraph (b);

 

  (i)

all freight, hire and passage moneys;

 

  (ii)

compensation payable to that Borrower or the Security Trustee in the event of requisition of a Ship for hire;

 

  (iii)

remuneration for salvage and towage services;

 

  (iv)

demurrage and detention moneys;

 

  (v)

damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship; and

 

  (vi)

all moneys which are at any time payable under any Insurances in respect of loss of hire; and

 

  (b)

if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Ship;

Earnings Account” means, in relation to a Ship, an account in the name of the Borrower owning that Ship with the Account Bank designated “[name of relevant Borrower] - Earnings Account”, or any other account (with that or another office of the Account Bank) which replaces such account and is designated by the Agent as that Earnings Account for the purposes of this Agreement;

 

8


Environmental Claim” means:

 

  (a)

any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or

 

  (b)

any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,

and “claim” means a claim for damages, compensation, fines, penalties or any other payment of any kind whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset;

Environmental Incident” means, in relation to a Ship:

 

  (a)

any release of Environmentally Sensitive Material from that Ship; or

 

  (b)

any incident in which Environmentally Sensitive Material is released from a vessel other than that Ship and which involves a collision between that Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which that Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or that Ship and/or the Borrower which is the owner thereof and/or any operator or manager of that Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or

 

  (c)

any other incident in which Environmentally Sensitive Material is released otherwise than from that Ship and in connection with which that Ship is actually or potentially liable to be arrested and/or where the Borrower which is the owner thereof and/or any operator or manager of that Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action;

Environmental Law” means any law, regulation, convention and agreement relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material;

Environmentally Sensitive Material” means oil, oil products and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous;

Event of Default” means any of the events or circumstances described in Clause 19.1;

Excess Cash” has the meaning given in Clause 8.13 (Cash Sweep).

Existing Security Interest” means any Security Interest created under the Mortgage Notes;

FATCA” means:

 

  (a)

sections 1471 to 1474 of the Code or any associated regulations;

 

9


  (b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

  (c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;

FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA;

FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction;

Final Repayment Date” means the date falling 2 years from the Drawdown Date;

Finance Documents” means together:

 

  (a)

this Agreement;

 

  (b)

the Agency and Trust Deed;

 

  (c)

the Account Pledges;

 

  (d)

the Corporate Guarantee;

 

  (e)

the Mortgages;

 

  (f)

the General Assignments;

 

  (g)

the Charterparty Assignments;

 

  (h)

the Approved Manager’s Undertakings; and

 

  (i)

any other document (whether creating a Security Interest or not) which is executed at any time by a Borrower, the Corporate Guarantor, the Approved Manager or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders under this Agreement or any of the other documents referred to in this definition and, in the singular, means any of them;

Financial Indebtedness” means, in relation to a person (the “debtor”), any actual or contingent liability of the debtor:

 

  (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, debenture or other security issued by the debtor;

 

  (c)

under any acceptance credit, guarantee or letter of credit facility made available to the debtor;

 

10


  (d)

under a financial lease, a deferred purchase consideration arrangement (in each case, other than in respect of assets or services obtained on normal commercial terms in the ordinary course of business) or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;

 

  (e)

under any foreign exchange transaction, any interest or currency swap, exchange 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 receivables sold or discounted (other than any receivables to the extent that they are sold on a non-recourse basis); or

 

  (g)

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 (f) if the references to the debtor referred to the other person;

Financial Year” means, in relation to the Corporate Guarantor and the Group, each period of one year commencing on 1 January in respect of which consolidated accounts are or ought to be prepared;

General Assignment” means, in relation to a Ship, a general assignment of (inter alia) the Earnings, the Insurances and any Requisition Compensation relative to that Ship in the Agreed Form and, in the plural, means all of them;

Group” means the Corporate Guarantor and all subsidiaries directly or indirectly owned by the Corporate Guarantor, including, but not limited to, the Shareholder and the relevant Borrower and “member of the Group” shall be construed accordingly;

IACS” means the International Association of Classification Societies;

Initial Charter” has the meaning ascribed thereto in Schedule 7 (Details of Ships and Initial Charters);

Initial Market Value” means, in relation to a Ship, the Market Value thereof calculated in accordance with the valuation(s) relative thereto referred to in paragraph 5 of Schedule 3, Part B;

Instalment” has the meaning given in Clause 8.1;

Insurances” means, in relation to a Ship:

 

  (a)

all policies and contracts of insurance (including, without limitation, any loss of hire insurance) and any reinsurance, policies or contracts, including entries of that Ship in any protection and indemnity or war risks association, effected in respect of that Ship, its Earnings or otherwise in relation to it whether before, on or after the date of this Agreement; and

 

  (b)

all rights (including, without limitation, any and all rights or claims which the Borrower owning that Ship may have under or in connection with any cut-through clause relative to any reinsurance contract relating to the aforesaid policies or contracts of insurance) and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement;

 

11


Interest Period” means a period determined in accordance with Clause 6;

Interpolated Screen Rate” means, in relation to an Interest Period, the rate which results from interpolating on a linear basis between:

 

  (a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than that Interest Period; and

 

  (b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds that Interest Period,

each as of the Specified Time on the Quotation Date for that Interest Period;

ISM Code” means the International Safety Management Code (including the guidelines on its implementation), adopted by the International Maritime Organisation as the same may be amended or supplemented from time to time (and the terms “safety management system”, “Safety Management Certificate” and “Document of Compliance” have the same meanings as are given to them in the ISM Code);

ISPS Code” means the International Ship and Port Facility Security Code as adopted by the International Maritime Organisation, as the same may be amended or supplemented from time to time;

ISSC” means a valid and current International Ship Security Certificate issued under the ISPS Code;

Lender” means, subject to Clause 26.6, a bank or financial institution listed in Schedule 1 and acting through its branch indicated in Schedule 1 (or through another branch notified to the Agent under Clause 26.16) or its transferee, successor or assign;

LIBOR” means, for an Interest Period:

 

  (a)

the rate per annum equal to the offered quotation for deposits in Dollars for a period equal to, or as near as possible equal to, the relevant Interest Period which appears on the Screen Rate; or;

 

  (b)

(if no Screen Rate is available for that Interest Period), the applicable Interpolated Screen Rate for that Interest Period; or

 

  (c)

if no Screen Rate is available and it is not possible to calculate an Interpolated Screen Rate for that Interest Period, the rate per annum determined by the Agent to be the arithmetic mean (rounded upwards, if necessary, to the nearest fifth decimal point) of the rate(s) per annum notified to the Agent by each, or if there is only one Reference Bank, that Reference Bank as the rate at which deposits in Dollars are offered to that Reference Bank by leading banks in the Relevant Interbank Market at that Reference Bank’s request,

at or about the Specified Time on the Quotation Date for that Interest Period for a period equal to that Interest Period and for delivery on the first Business Day of it and, if any such rate is below zero, LIBOR will be deemed to be zero;

 

12


“Loan” means the principal amount for the time being outstanding under this Agreement;

“LSW 1189” means the London Standard Wording for marine insurances which incorporates the German Direct Mortgage Clause;

LTV Ratio” means, at any relevant time, the Loan at that time expressed as a percentage of the aggregate of (i) the aggregate of the Market Value of the Mortgaged Ships, (ii) the aggregate credit balances standing at such time to the credit of the Retention Account and the Reserve Account and (iii) the net realisable value of any additional security provided at that time under Clause 15 (Security Cover);

“Major Casualty” means, in relation to a Ship, any casualty to that Ship in respect of which the claim or the aggregate of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $500,000 or the equivalent in any other currency;

“Majority Lenders” means:

 

  (a)

before the Advance is made, Lenders whose Commitments total 66 2/3 per cent. of the Total Commitments; and

 

  (b)

after the Advance is made, Lenders whose Contributions total 66 2/3 per cent. of the Loan;

“Mandated Lead Arranger” means Hamburg Commercial Bank AG, acting in such capacity through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, or any successor;

“Mandatory Cost” means the percentage rate per annum calculated by the Agent in accordance with Schedule 4;

Margin” means:

 

  (a)

if the LTV Ratio is less than 55 per cent., 3.25% per annum; or

 

  (b)

if the LTV Ratio is equal to or greater than 55 per cent. up to, 60 per cent., 3.50% per annum; or

 

  (c)

if the LTV Ratio is equal to or greater than 60 per cent. up to, 65 per cent., 4.0% per annum; or

 

  (d)

if the LTV Ratio is equal to or greater than 65 per cent., 4.50% per annum;

“Market Value” means, in relation to a Ship, the market value thereof determined in accordance with Clause 15.3;

Material Adverse Change” means any event or series of events which, in the opinion of the Majority Lenders, is likely to have a Material Adverse Effect;

“Material Adverse Effect” means, in the reasonable opinion of the Majority Lenders, a material adverse effect on:

 

  (a)

the business, property, assets, liabilities, operations or condition (financial or otherwise) of a Borrower and/or any Security Party taken as a whole;

 

13


  (b)

the ability of a Borrower, the Approved Manager and/or any 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;

Maximum Advance Amount” means an amount up to the lesser of (i) $105,000,000 and (ii) 65 per cent. of the aggregate Initial Market Value the Ships;

“Minimum Liquidity” has the meaning given in Schedule 7;

“Minimum Liquidity Account” means an account in the joint names of the Borrowers with the Account Bank designated “[name of account holder(s)] – Minimum Liquidity Account”, or any other account (with that or another office of the Account Bank) which replaces such account and is designated by the Agent as the Minimum Liquidity Account for the purposes of this Agreement;

Mortgage” means, in relation to a Ship, the first preferred ship mortgage or, as the case may be, first priority ship mortgage and deed of covenants collateral thereto, on that Ship in the Agreed Form and, in the plural, means all of them;

Mortgaged Ship” means a Ship which is subject to a Mortgage at the relevant time and, in the plural, means all of them;

Negotiation Period” has the meaning given in Clause 5.10;

Notifying Lender” has the meaning given in Clause 21.2, Clause 23.1 or Clause 24.1 as the context requires;

Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union;

Party” means a party to a Finance Document;

Payment Currency” has the meaning given in Clause 21.6;

Permitted Financial Indebtedness” means the financial indebtedness incurred by Borrower A in the ordinary course of its business of owning and acquiring vessels and in relation to the vessels owned by it other than Ship A, Ship B and Ship C;

Permitted Security Interests” means:

 

  (a)

Security Interests created by the Finance Documents;

 

  (b)

at any time prior to the Drawdown Date, any Existing Security Interest;

 

  (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 a Ship not prohibited by this Agreement;

 

14


  (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 a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the relevant Borrower in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 14.14(d);

 

  (g)

any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses while a Borrower is actively prosecuting or defending such proceedings or arbitration in good faith;

 

  (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; and

 

  (i)

in relation to Borrower A any Security Interest created under the Permitted Financial Indebtedness.

Pertinent Document” means:

 

  (a)

any Finance Document;

 

  (b)

any policy or contract of insurance contemplated by or referred to in Clause 13 or any other provision of this Agreement or another Finance Document;

 

  (c)

any other document contemplated by or referred to in any Finance Document; and

 

  (d)

any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c);

Pertinent Jurisdiction” in relation to a company, means:

 

  (a)

England and Wales;

 

  (b)

the country under the laws of which the company is incorporated or formed;

 

  (c)

a country in which the company has the centre of its main interests or which the company’s central management and control is or has recently been exercised;

 

  (d)

a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax;

 

  (e)

a country in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are situated, in which the company maintains a branch or permanent place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and

 

  (f)

a country the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company, whether as a main or territorial or ancillary proceedings, or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c);

 

15


Potential Event of Default” means an event or circumstance which, with the giving of any notice, the lapse of time, a reasonable determination of the Majority Lenders and/or the satisfaction of any other condition, would constitute an Event of Default;

“Prepayment Date” has the meaning given in Clause 15.2;

Prepayment Notice” has the meaning given in Clause 8.5(b);

Quotation Date” means, in relation to any Interest Period (or any other period for which an interest rate is to be determined under any provision of a Finance Document), the day on which quotations would ordinarily be given by leading banks in the Relevant Interbank Market for deposits in the currency in relation to which such rate is to be determined for delivery on the first day of that Interest Period or other period;

“Reference Banks” means, subject to Clause 26.19, together, the Hamburg branch of Hamburg Commercial Bank AG, the head office of any other bank which is a Lender at the relevant time (unless such Lender has advised the Agent in writing that it does not wish to be a Reference Bank) and any of their respective successors;

Relevant Nominating Body” means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board;

Replacement Benchmark” means a benchmark rate which is:

 

  (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,

and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the “Replacement Benchmark” will be the replacement under paragraph (ii) above;

 

  (b)

in the opinion of the Majority Lenders and the Borrowers, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to that Screen Rate; or

 

  (c)

in the opinion of the Majority Lenders and the Borrowers, an appropriate successor to a Screen Rate.

“Relevant Interbank Market” means the London interbank market;

Relevant Person” has the meaning given in Clause 19.9;

Repayment Date” means the date falling three months after the Drawdown Date and each of the dates falling at three-monthly intervals thereafter and the Final Repayment Date;

 

16


Requisition Compensation” includes all compensation or other moneys payable by reason of any act or event such as is referred to in paragraph (b) of the definition of “Total Loss”;

Reserve Account” means an account in the name of the Borrowers with the Account Bank designated “[name of account holder(s)] – Reserve Account”, or any other account (with that or another office of the Account Bank) which replaces this account and is designated by the Agent as the Reserve Account for the purposes of this Agreement;

Reserve Amount” has the meaning given to such term in Schedule 7 (Details of Ship and other definitions);

Retention Account” means an account in the joint names of the Borrowers with the Account Bank designated “[name of account holder(s)] – Retention Account”, or any other account (with that or another office of the Account Bank) which replaces this account and is designated by the Agent as the Retention Account for the purposes of this Agreement;

Screen Rate” means the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for Dollars for the relevant period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrowers;

Screen Rate Replacement Event” means, in relation to a Screen Rate:

 

  (a)

the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders, and the Borrowers 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, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent,

provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;

 

  (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

 

17


  (c)

in the opinion of the Majority Lenders and the Borrowers, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.

Secured Liabilities” means all liabilities which the Borrowers, the Security Parties or any of them have, at the date of this Agreement or at any later time or times, under or in connection with any Finance Document or any judgment relating to any Finance Document; and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country;

“Security Cover Ratio” means, at any relevant time, the aggregate of (i) the aggregate of the Market Value of the Mortgaged Ships, (ii) the aggregate credit balances standing at such time to the credit of the Retention Account and the Reserve Account and (iii) the net realisable value of any additional security provided at that time under Clause 15 (Security Cover) at that time expressed as a percentage of the Loan;

Security Interest” means:

 

  (a)

a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind; and

 

  (b)

the rights of a plaintiff under an action in rem;

Security Party” means the Corporate Guarantor, the Subordinated Creditor and any other person (except a Creditor Party or the Approved Manager) who, as a surety or mortgagor, as a party to any subordination or priorities arrangement, or in any similar capacity, executes a document falling within the final paragraph of the definition of “Finance Documents”;

Security Period” means the period commencing on the date of this Agreement and ending on the date on which the Agent notifies the Borrowers, the Security Parties and the other Creditor Parties that:

 

  (a)

all amounts which have become due for payment by a Borrower, the Approved Manager or any 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;

 

  (c)

neither a Borrower, the Approved Manager nor any Security Party has any future or contingent liability under Clauses 20, 21 or 22 or any other provision of this Agreement or another Finance Document; and

 

  (d)

the Agent, the Mandated Lead Arranger, the Security Trustee and the Majority Lenders do not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of a Borrower, the Approved Manager or a Security Party or in any present or possible future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document;

 

18


Security Trustee” means Hamburg Commercial Bank AG, acting in such capacity through its office at Gerhart-Hauptmann-Platz 50, D-20095, Hamburg, Germany, or any successor of it appointed under clause 5 of the Agency and Trust Deed;

Senior Secured Notes” means the indenture dated as of 21 November 2017 for $305,000,000 issued by the Corporate Guarantor and Navios Maritime Finance II (US) Inc. for 11.25% Senior Secured s due in 15 August 2022.

Senior Secured Notes Indebtedness” means, at any date, any outstanding Financial Indebtedness (or part thereof) on that date under the Senior Secured Notes.

Servicing Bank” means the Agent or the Security Trustee;

Shareholder” means:

 

  (a)

in connection to Borrower A: Nav Holdings Ltd, a company formed and existing under the law of Malta which has its registered address at 25/16 Vincenti Buildings, Strait Street, Valletta, Malta;

 

  (b)

in connection to Borrower B and Borrower D: Anemos Maritime Holdings Inc., a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

 

  (c)

in connection to Borrower C and Borrower E: Navios Asia LLC, a limited liability company formed and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960; and

 

  (d)

in connection to Borrower F: Aquis Marine Corp., a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960.

Ship” means each of Ship A, Ship B, Ship C, Ship D Ship E, Ship F and Ship G and, in the plural, means all of them;

Ship A” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

Ship B” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

Ship C” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

Ship D” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

Ship E” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

Ship F” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

Ship G” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

 

19


Mortgage Notes” means the indenture dated as of 29 November 2013 for $650,000,000 issued by the Corporate Guarantor and Navios Maritime Finance II (US) Inc. for 7.375% First Priority Ship Mortgage Notes due in 15 January 2022.

Mortgage Notes Indebtedness” means, at any date, any outstanding Financial Indebtedness (or part thereof) on that date under the Mortgage Notes.

Specified Time” means 11.00 a.m. London time;

Subordinated Creditor” means Navios Shipmanagement Holdings Corporation, a corporation incorporated under the laws of the Marshall Islands whose registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

Subordinated Liabilities” means all indebtedness owed or expressed to be owed by the Corporate Guarantor to the Subordinated Creditor under the Subordinated Loan Agreements.

Subordinated Loan Agreement” means:

 

  (a)

loan agreement dated 29 August 2019 and made between (i) the Corporate Guarantor as borrower and (ii) the Subordinated Creditor as lender as amended and restated on or around the date of this Agreement;

 

  (b)

loan agreement dated 29 June 2021 and made between (i) the Corporate Guarantor as borrower and (ii) the Subordinated Creditor as lender as amended and restated on or around the date of this Agreement;

 

  (c)

any supplemental agreement entered or to be entered into between (i) the Corporate Guarantor as borrower and (ii) the Subordinated Creditor as lender amending, supplementing and/or restating the Subordinated Loan Agreements referred to in paragraphs (a) and/or (b) above; and

 

  (d)

any other amendment and/or supplement related to the Subordinated Liabilities.

Subordination Agreement” means a subordination agreement entered into or to be entered into by the Subordinated Creditor and the Agent in such form as the Lenders may approve or require.

Total Loss” means, in relation to a Ship:

 

  (a)

actual, constructive, compromised, agreed or arranged total loss of that Ship;

 

  (b)

any expropriation, confiscation, requisition or acquisition of that Ship, whether for full or part consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority unless it is within one month from the date of such occurrence redelivered to the full control of the Borrower(s) owning that Ship excluding a requisition for hire a fixed period not exceeding 90 days without any right to an extension;

 

20


  (c)

any condemnation of that Ship by any tribunal or by any person or person claiming to be a tribunal; and

 

  (d)

any arrest, capture, seizure, confiscation or detention of that Ship (including any hijacking or theft) unless it is within the Relevant Period redelivered to the full control of the Borrower(s) owning that Ship;

Relevant Period” means:

 

  (i)

in the case of any arrest, capture, seizure, confiscation or detention of a Ship (including any hijacking or theft), other than piracy, within 90 days; and

 

  (ii)

in the case of piracy, if the relevant underwriters confirm to the Agent in writing prior to the end of the 90-day period referred to in (i) above that the relevant Ship is subject to an approved piracy insurance cover, the earlier of 270 days after the date on which that Ship is captured by pirates and the date on which the piracy insurance cover expires;

Total Loss Date” means, in relation to a Ship:

 

  (a)

in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;

 

  (b)

in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:

 

  (i)

30 days after 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 Borrower(s) owning that Ship with that Ship’s insurers in which the insurers agree to treat the Ship as a total loss; and

 

  (c)

in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred;

Transfer Certificate” has the meaning given in Clause 26.2;

Trust Property” has the meaning given in clause 3.1 of the Agency and Trust Deed;

“Underlying Documents” means any Assignable Charters and, in the singular, means any of them;

US” means the United States of America;

US GAAP” means generally accepted accounting principles as from time to time in effect in the US; and

US Tax Obligor” means:

 

  (a)

a Borrower which is resident for tax purposes in the US; or

 

  (b)

a Borrower or a Security Party some or all whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

 

21


1.2

Construction of certain terms

In this Agreement:

administration notice” means a notice appointing an administrator, a notice of intended appointment and any other notice which is required by law (generally or in the case concerned) to be filed with the court or given to a person prior to, or in connection with, the appointment of an administrator;

approved” means, for the purposes of Clause 13, approved in writing by the Agent at its discretion;

asset” includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or other payment;

company” includes any partnership, joint venture and unincorporated association;

consent” includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation;

contingent liability” means a liability which is not certain to arise and/or the amount of which remains unascertained;

document” includes a deed; also a letter or fax;

excess risks” means, in relation to a Ship, the proportion of claims for general average, salvage and salvage charges not recoverable under the hull and machinery policies in respect of that Ship in consequence of its insured value being less than the value at which that Ship is assessed for the purpose of such claims;

expense” means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added or other tax;

gross negligence” means a form of negligence which is distinct from ordinary negligence, in which the due diligence and care which are generally to be exercised have been disregarded to a particularly high degree, in which the plainest deliberations have not been made and that which should be most obvious to everybody has not been followed;

law” includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;

legal or administrative action” means any legal proceeding or arbitration and any administrative or regulatory action or investigation;

liability” includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise;

months” shall be construed in accordance with Clause 1.3;

 

22


obligatory insurances” means, in relation to a Ship, all insurances effected, or which the Borrower owning that Ship is obliged to effect in respect of that Ship, under Clause 13 or any other provision of this Agreement or another Finance Document;

parent company” has the meaning given in Clause 1.4;

person” includes any individual, any partnership, any company; any state, political sub-division of a state and local or municipal authority; and any international organisation;

policy” in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms;

protection and indemnity risks” means the usual risks covered by a protection and indemnity association managed in London, including pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation in them of clause 1 of the Institute Time Clauses (Hulls) (1/10/83) or clause 6 of the International Hull Clauses (1/11/02) (1/11/03) or clause 8 of the Institute Time Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision;

“regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency (monetary or otherwise), department, central bank, regulatory, self-regulatory or other authority or organisation;

subsidiary” has the meaning given in Clause 1.4;

successor” includes any person who is entitled (by assignment, novation, merger or otherwise) to any person’s rights under this Agreement or any other Finance Document (or any interest in those rights) or who, as administrator, liquidator or otherwise, is entitled to exercise those rights; and in particular references to a successor include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation of it or any other person;

tax” includes any present or future tax, duty, impost, levy or charge of any kind which is imposed by any state, any political sub-division of a state or any local or municipal authority (including any such imposed in connection with exchange controls), and any connected penalty, interest or fine; and

war risks” includes the risk of mines and all risks excluded by clauses 29, 30 or 31 of the International Hull Clauses (1/11/02), clauses 29 or 30 of the International Hull Clauses (1/11/03), clauses 24, 25 or 26 of the Institute Time Clauses (Hulls) (1/11/95) or clauses 23, 24 or 25 of the Institute Time Clauses (Hulls) (1/10/83) or any equivalent provision.

 

1.3

Meaning of “month”

A period of one or more “months” ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (“the numerically corresponding day”), but:

 

(a)

on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or

 

23


(b)

on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,

and “month” and “monthly” shall be construed accordingly.

 

1.4

Meaning of “subsidiary”

A company (S) is a subsidiary of another company (P) if a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P and any company of which S is a subsidiary is a parent company of S.

 

1.5

General Interpretation

In this Agreement:

 

(a)

references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;

 

(b)

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;

 

(c)

words denoting the singular number shall include the plural and vice versa; and

 

(d)

Clauses 1.1 to 1.5 apply unless the contrary intention appears.

In this Agreement, where it relates to Borrower A, a reference to :

 

  (a)

gross negligence” is a reference to zware fout/faute lourde and “wilful misconduct” is a reference to opzet/dol;

 

  (b)

a “liquidator”, “receiver”, “administrative receiver”, “administrator” or similar officer includes any insolventiefunctionaris/praticien de l’insolvabilité, curator/curateur, vereffenaar/liquidateur, gedelegeerd rechter/juge délégué, ondernemingsbemiddelaar/médiateur d’entreprise, gerechtsmandataris/ mandataire de justice, voorlopig bewindvoerder/administrateur provisoire, gerechtelijk bewindvoerder/administrateur judiciaire, mandataris ad hoc/mandataire ad hoc and any sekwester/séquestre;

 

  (c)

a “suspension of payments”, “moratorium”, or “reorganisation” includes any gerechtelijke reorganisatie/réorganisation judiciaire;

 

  (d)

an “insolvency” includes any insolventieprocedure/procedure d’insolvabilité, gerechtelijke reorganisatie/réorganisation judiciaire, faillissement/faillite and any other concurrence between creditors (samenloop van schuldeisers/concours des créanciers);

 

  (e)

a “security interest” includes a mortgage (hypotheek/hypothèque), a pledge (pand/gage), a transfer by way of security (overdracht ten titel van zekerheid/transfert à titre de garantie), any other proprietary security interest (zakelijke zekerheid/sûreté réelle), a mandate to grant a mortgage, a pledge or any other real surety, a privilege (voorrecht/privilège) and a retention of title (eigendomsvoorbehoud/réserve de propriété);

 

24


  (f)

an obligor being “incorporated” in Belgium or of which its “jurisdiction of incorporation” is Belgium, means that that Security Party has its registered office (zetel/siège) in Belgium;

 

  (g)

a person being “unable to pay its debts” is that person being in a state of cessation of payments (staking van betaling/cessation de paiements);

 

  (h)

a “composition” includes any minnelijk akkoord met schuldeisers/accord amiable avec des créanciers or any gerechtelijke reorganisatie/réorganisation judiciaire;

 

  (i)

winding-up”, “administration” or “dissolution” includes any vereffening/liquidation, ontbinding/dissolution, sluiting van een onderneming/fermeture d’entreprise and faillissement/faillite;

 

  (j)

attachment”, “sequestration”, “distress”, “execution” or analogous procedures includes any uitvoerend beslag/saisie exécution and bewarend beslag/saisie conservatoire;

 

  (k)

an “amalgamation”, “demerger”, “merger” or “corporate reconstruction” includes an overdracht van algemeenheid/transfert d’universalité, an overdracht van bedrijfstak/transfert de branche d’activité, a splitsing/scission and a fusie/fusion as well as assimilated transactions (gelijkgestelde verrichtingen/operations assimilées) in accordance with article 12:7 and 12:8 of the Belgian Code of Companies and Associations;

 

  (l)

the “Belgian Civil Code” means the Belgian oud Burgerlijk Wetboek/ancien Code Civil, as amended from time to time, or after its replacement, the Belgian Burgerlijk Wetboek/Code Civil, as amended from time to time; and

 

  (m)

the “Belgian Code of Companies and Associations” means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations dated 23 March 2019, as amended from time to time.

 

1.6

Headings

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.

 

2

FACILITY

 

2.1

Amount of facility

Subject to the other provisions of this Agreement, the Lenders shall make available to the Borrowers a senior secured term loan facility of up to $105,000,000 in one Advance.

 

25


2.2

Lenders’ participations in the Advance

Subject to the other provisions of this Agreement, each Lender shall participate in the Advance in the proportion which, as at the Drawdown Date, its Commitment bears to the Total Commitments.

 

2.3

Purpose of the Advance

The Borrowers undertake with each Creditor Party to use the Advance only for the purpose stated in the preamble to this Agreement.

 

3

POSITION OF THE LENDERS

 

3.1

Interests several

The rights of the Lenders under this Agreement are several.

 

3.2

Individual right of action

Each Lender shall be entitled to sue for any amount which has become due and payable by the Borrowers to it under this Agreement without joining the Agent, the Security Trustee or any other Lender as additional parties in the proceedings.

 

3.3

Proceedings requiring Majority Lender consent

Except as provided in Clause 3.2, no Lender may commence proceedings against the Borrowers, the Approved Manager or any Security Party in connection with a Finance Document without the prior consent of the Majority Lenders.

 

3.4

Obligations several

The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:

 

(a)

the obligations of the other Lenders being increased; nor

 

(b)

a Borrower, the Approved Manager, any Security Party or any other Lender being discharged (in whole or in part) from its obligations under any Finance Document;

and in no circumstances shall a Lender have any responsibility for a failure of another Lender to perform its obligations under this Agreement.

 

4

DRAWDOWN

 

4.1

Request for the Advance

Subject to the following conditions, the Borrowers may request the Advance to be borrowed by ensuring that the Agent receives a completed Drawdown Notice not later than 11.00 a.m. (Hamburg time) three Business Days prior to the Drawdown Date.

 

26


4.2

Availability

The conditions referred to in Clause 4.1 are that:

 

(a)

a Drawdown Date has to be a Business Day during the Availability Period;

 

(b)

the Advance shall not exceed the Maximum Advance Amount;

 

(c)

any undrawn portion of the Total Commitments in respect of the Advance, upon the determination of the aggregate Initial Market Value of the Ships, shall be automatically cancelled as at the Drawdown Date; and

 

(d)

the amount of the Advance shall not exceed the Total Commitments.

 

4.3

Notification to Lenders of receipt of a Drawdown Notice

The Agent shall promptly notify the Lenders that it has received the Drawdown Notice and shall inform each Lender of:

 

(a)

the amount of the Advance and the Drawdown Date;

 

(b)

the amount of that Lender’s participation in the Advance; and

 

(c)

the duration of the first Interest Period in respect of the Advance.

 

4.4

Drawdown Notice irrevocable

The Drawdown Notice must be signed by a duly authorised signatory of the Borrowers; and once served, the Drawdown Notice cannot be revoked without the prior consent of the Agent, acting on the authority of the Lenders.

 

4.5

Lenders to make available Contributions

Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date, make available to the Agent for the account of the Borrowers the amount due from that Lender on the Drawdown Date under Clause 2.2.

 

4.6

Disbursement of Advance

Subject to the provisions of this Agreement, the Agent shall on the Drawdown Date pay to the Borrowers the amounts which the Agent receives from the Lenders under Clause 4.5 and that payment to the Borrowers shall be made:

 

(a)

to the account which the Borrowers specify in the Drawdown Notice; and

 

(b)

in like funds as the Agent received the payments from the Lenders.

The payment by the Agent under this Clause 4.6 shall constitute the making of the Advance and the Borrowers shall at that time become indebted, as principal and direct obligors, to each Lender in an amount equal to that Lender’s participation in the Advance.

 

5

INTEREST

 

5.1

Payment of normal interest

Subject to the provisions of this Agreement, interest on the Advance in respect of each Interest Period shall be paid by the Borrowers on the last day of that Interest Period.

 

27


5.2

Normal rate of interest

Subject to the provisions of this Agreement, the rate of interest on the Advance in respect of an Interest Period shall be the aggregate of (i) the Margin, (ii) the Mandatory Cost (if any), (iii) LIBOR for that Interest Period and (iv) if a Lender (the “Applicable Lender”) notifies the Agent at least 5 Business Days before the start of that Interest Period that its Cost of Funding exceeds LIBOR (including the amount of such excess) on the Quotation Date for that Interest Period, additionally in respect of that Applicable Lender’s Contribution in the relevant Advance, the Correction Rate applicable to the Applicable Lender for that Interest Period.

 

5.3

Payment of accrued interest

In the case of an Interest Period of longer than three months (subject to the prior agreement of the Agent in accordance with Clause 6.2(b)), accrued interest shall be paid every three months during that Interest Period and on the last day of that Interest Period.

 

5.4

Notification of Interest Periods and rates of normal interest

The Agent shall notify the Borrowers and each Lender of:

 

(a)

each rate of interest; and

 

(b)

the duration of each Interest Period,

as soon as reasonably practicable after each is determined.

 

5.5

Obligation of Reference Banks to quote

A Reference Bank which is a Lender shall use all reasonable efforts to supply the quotation required of it for the purposes of fixing a rate of interest under this Agreement unless that Reference Bank ceases to be a Lender pursuant to Clause 26.19.

 

5.6

Absence of quotations by Reference Banks

If any Reference Bank fails to supply a quotation, the Agent shall determine the relevant LIBOR on the basis of the quotations supplied by the other Reference Bank(s) but if two or more of the Reference Banks fail (or, if at any time there is only one Reference Bank, that Reference Bank fails) to provide a quotation, the relevant rate of interest shall be set in accordance with the following provisions of this Clause 5.

 

5.7

Market disruption

The following provisions of this Clause 5 apply if:

 

(a)

no rate is quoted on the Screen Rate, it is not possible to calculate an Interpolated Screen Rate for that Interest Period and two or more of the Reference Banks do not (or, if at any time there is only one Reference Bank, that Reference Bank does not), before 1.00 p.m. (London time) on the Quotation Date for an Interest Period, provide a quotation to the Agent in order to fix LIBOR; or

 

(b)

at least three Business Days before the start of an Interest Period, the Agent is notified by a Lender (the “Affected Lender”) that for any reason it is unable to obtain Dollars in the Relevant Interbank Market in order to fund its Contribution (or any part of it) during the Interest Period.

 

28


5.8

Notification of market disruption

The Agent shall promptly notify the Borrowers and each of the Lenders stating the circumstances falling within Clause 5.7 which have caused its notice to be given.

 

5.9

Suspension of drawdown

If the Agent’s notice under Clause 5.8 is served before the Advance is made:

 

(a)

In a case falling within Clause 5.7(a), the Lender’s obligation to make the Advance; and

 

(b)

In a case falling within Clause 5.7(b), the Affected Lender’s obligation to participate in the Advance,

shall be suspended while the circumstances referred to in the Agent’s notice continue.

 

5.10

Negotiation of alternative rate of interest

 

(a)

If the Agent’s notice under Clause 5.8 is served after the Advance is borrowed, the Borrowers, the Agent, the Lenders (subject to Clause 27.5) or (as the case may be) the Affected Lender shall use reasonable endeavours to agree, within 30 days after the date on which the Agent serves its notice under Clause 5.8 (the “Negotiation Period”), an alternative interest rate or (as the case may be) an alternative basis for the Lenders or (as the case may be) the Affected Lender to fund or continue to fund their or its Contribution during the Interest Period concerned.

 

(b)

During the Negotiation Period the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender, set an interest period and interest rate representing the Cost of Funding of the Lenders or (as the case may be) the Affected Lender in Dollars, in each case as determined by the relevant Lender, or in any available currency of their or its Contribution plus the Margin and the Mandatory Cost (if any).

 

5.11

Application of agreed alternative rate of interest

Subject to Clause 27.5 (Replacement of Screen Rate), any alternative interest rate or an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed.

 

5.12

Alternative rate of interest in absence of agreement

Subject to Clause 27.5 (Replacement of Screen Rate), 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 procedure provided for in Clause 5.10(b) shall be repeated at the end of the interest period set by the Agent pursuant to that Clause.

 

5.13

Notice of prepayment

If the Borrowers do not agree with an interest rate set by the Agent under Clause 5.12, the Borrowers may give the Agent not less than 5 Business Days’ notice of their intention to prepay the Loan at the end of the interest period set by the Agent.

 

29


5.14

Prepayment; termination of Commitments

A notice under Clause 5.13 shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Affected Lender of the Borrowers’ notice of intended prepayment; and:

 

(a)

on the date on which the Agent serves that notice, the Total Commitments or (as the case may require) the Commitment of the Affected Lender shall be cancelled; and

 

(b)

on the last Business Day of the interest period set by the Agent, the Borrowers shall prepay (without premium or penalty) the Loan or, as the case may be, the Affected Lender’s Contribution, together with accrued interest thereon at the applicable rate plus the Margin and the Mandatory Cost (if any).

 

5.15

Application of prepayment

The provisions of Clause 8 shall apply in relation to the prepayment.

 

6

INTEREST PERIODS

 

6.1

Commencement of Interest Periods

The first Interest Period applicable to the Advance shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.

 

6.2

Duration of normal Interest Periods

Subject to Clauses 6.3 and 6.4, each Interest Period in respect of the Advance shall be:

 

(a)

3 months; or

 

(b)

such other period (as proposed by the Borrowers to the Agent not later than 11:00 a.m. (Hamburg time) 5 Business Days before the commencement of the Interest Period in respect of the Advance) as the Agent may, with the authorisation of the Majority Lenders, agree with the Borrowers (failing which the Interest Period shall be three months).

 

6.3

Duration of Interest Periods for Instalments

In respect of an amount due to be repaid under Clause 8 on a particular Repayment Date, an Interest Period shall end on that Repayment Date.

 

6.4

Non-availability of matching deposits for Interest Period selected

If, after the Borrowers have proposed and the Lenders have agreed an Interest Period longer than three months, any Lender notifies the Agent by 11.00 a.m. (Hamburg time) on the third Business 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 Relevant Interbank Market when the Interest Period commences, the Interest Period shall be of three months.

 

30


7

DEFAULT INTEREST

 

7.1

Payment of default interest on overdue amounts

The Borrowers shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by the Borrowers under any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant date, that is:

 

(a)

the date on which the Finance Documents provide that such amount is due for payment; or

 

(b)

if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or

 

(c)

if such amount has become immediately due and payable under Clause 19.4, the date on which it became immediately due and payable.

 

7.2

Default rate of interest

Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be 2.50 per cent. above:

 

(a)

in the case of an overdue amount of principal, the higher of the rates set out at Clauses 7.3(a) and 7.3(b); or

 

(b)