Agreement

THIS AGREEMENT Is Dated 11 March 2008 and Made BETWEEN:

 
Exhibit 4.24
Private & Confidential
 
 
 
 
 
 
for an Overdraft Facility of up to
US$20,000,000
to
MILOS I MARITIME INC.
BALDWIN MANAGEMENT CO.
and
VERA NAVIGATION S.A.
 
provided by
PIRAEUS BANK A.E.
 
 
 
 
 
     
 
 
 

 
THIS AGREEMENT is dated 11 March 2008 and made BETWEEN:
 
(1)
MILOS I MARITIME INC., BALDWIN MANAGEMENT CO. and VERA NAVIGATION S.A. as joint and several Borrowers; and
 
(2)
PIRAEUS BANK A.E. as Bank.
 
IT IS AGREED as follows:
 
Purpose and definitions
 
1.1
Purpose
 
This Agreement sets out the terms and conditions upon and subject to which the Bank agrees to make available to the Borrowers jointly and severally a revolving overdraft facility of up to Twenty million Dollars ($20,000,000) to be used for the purpose of assisting the Borrowers to finance the working capital needs of the Borrowers and/or any other members of the Group.
 
1.2
Definitions
 
In this Agreement, unless the context otherwise requires:
 
"Accounts" means, together, the Hope Operating Account, the Sara Operating Account, the Vera Operating Account and the Overdraft Account and:
 
 
(a)
in relation to Hope, it means the Hope Operating Account;
 
 
(b)
in relation to Sara, it means the Sara Operating Account; or
 
 
(c)
in relation to Vera, it means the Vera Operating Account,
 
and "Account" means any of them;
 
"Aegean Bunkering Guarantee" means the corporate guarantee executed or (as the context may require) to be executed by the Aegean Bunkering Guarantor in favour of the Bank in the form set out in schedule 7;
 
"Aegean Bunkering Guarantor" means Aegean Bunkering Services Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Island MH96960 and includes its successors in title;
 
"AMPNI Guarantee" means the corporate guarantee executed or (as the context may require) to be executed by the AMPNI Guarantor in favour of the Bank in the form set out in schedule 6;
 
"AMPNI Guarantor" means Aegean Marine Petroleum Network Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Island MH96960 and includes its successors in title;
 
"Applicable Accounting Principles" means the most recent and up-to-date US GAAP at any relevant time;
 
"Assignee" has the meaning ascribed thereto in clause 15.3;
 
"Available Amount" means, at any relevant time, the Facility Amount minus the Overdraft at that time;
 
"Bank" means Piraeus Bank A.E. whose registered office is at 4 Amerikis, 105 64 Athens, Greece acting for the purposes of this Agreement through its branch at 47-49 Akti Miaouli, Piraeus 185 36, Greece (or of such other address as may last have been notified to the Borrowers pursuant to clause 15.6) and includes its successors in title, Assignees and/or Transferees;
 
 
1

 
"Banking Day" means a day on which dealings in deposits in Dollars are carried on in the London Interbank Eurocurrency Market and (other than Saturday or Sunday) on which banks are open for business in London, Piraeus and New York City (or any other relevant place of payment under clause 6);
 
"Borrowed Money" means Indebtedness incurred in respect of (i) money borrowed or raised 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) 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 raising of money or of any of (ii) to (vii) above and (ix) guarantees in respect of Indebtedness of any person falling within any of (i) to (vii) above;
 
"Borrower" means:
 
 
(a)
in relation to Hope, the Hope Borrower;
 
 
(b)
in relation to Sara, the Sara Borrower; or
 
 
(c)
in relation to Vera, the Vera Borrower,
 
and "Borrowers" means any or all of them;
 
"Borrowers' Security Documents" means, at any relevant time, such of the Security Documents as shall have been executed by the Borrowers or any of them at such time;
 
"Classification" means, in relation to a Ship, the highest classification for a vessel of the same type as the relevant Ship with the relevant Classification Society or such other classification as the Bank shall, at the request of a Borrower, have agreed in writing shall be treated as the Classification in relation to such Borrower's Ship for the purposes of the Security Documents;
 
"Classification Society" means, in relation to each Ship, such classification society (being a member of the International Association of Classification Societies (IACS)) which the Bank shall, at the request of a Borrower, have agreed in writing shall be treated as the Classification Society in relation to such Borrower's Ship for the purposes of the Security Documents;
 
"Code" means the International Management Code for the Safe Operation of Ships and for Pollution Prevention constituted pursuant to Resolution A.741(18) of the International Maritime Organization and incorporated into the International Convention for the Safety of Life at Sea 1974 (as amended) and includes any amendments or extensions thereto and any regulation issued pursuant thereto;
 
"Compulsory Acquisition" means requisition for title or other compulsory acquisition, requisition, appropriation, expropriation, deprivation, forfeiture or confiscation for any reason of a Ship by any Government Entity or other competent authority, whether de jure or de facto, but shall exclude requisition for use or hire not involving requisition of title;
 
"Corporate Guarantees" means, the AMPNI Guarantee and the Aegean Bunkering Guarantee and "Corporate Guarantee" means either of them;
 
"Corporate Guarantors" means, together, the Aegean Bunkering Guarantor and the AMPNI Guarantor and "Corporate Guarantor" means either of them;
 
 
2

 
"Deed of Covenant" means the first priority deed of covenant collateral to the Sara Mortgage executed or (as the context may require) to be executed by the Sara Borrower in favour of the Bank in the form set out in schedule 3;
 
"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;
 
"DOC" means a document of compliance issued to an Operator in accordance with rule 13 of the Code;
 
"Dollars" and "$" mean the lawful currency of the United States of America and in respect of all payments to be made under any of the Security Documents mean funds which are for same day settlement in the New York Clearing House Interbank Payments System (or such other U.S. dollar funds as may at the relevant time be customary for the settlement of international banking transactions denominated in U.S. dollars);
 
"Drawdown Dates" means the dates upon which drawings in respect of the Overdraft are actually advanced to the Borrowers hereunder and "Drawdown Date" means any of them;
 
"Encumbrance" means any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, trust arrangement or security interest or other encumbrance of any kind securing any obligation of any person or any type of preferential arrangement (including without limitation title transfer and/or retention arrangements having a similar effect);
 
"Environmental Affiliate" means any agent or employee of any Borrower or any other Relevant Party or any person having a contractual relationship with any Borrower or any other Relevant Party in connection with any Relevant Ship or its operation or the carriage of cargo and/or passengers thereon and/or the provision of goods and/or services on or from any Relevant Ship;
 
"Environmental Approval" means any consent, authorisation, licence or approval of any governmental or public body or authorities or courts applicable to any Relevant Ship or its operation or the carriage of cargo and/or passengers thereon and/or the provision of goods and/or services on or from any Relevant Ship required under any Environmental Law;
 
"Environmental Claim" means any and all enforcement, clean-up, removal or other governmental or regulatory actions or orders instituted or completed pursuant to any Environmental Law or any Environmental Approval together with claims made by any third party relating to damage, contribution, loss or injury, resulting from any actual or threatened emission, spill, release or discharge of a Material of Environmental Concern from any Relevant Ship;
 
"Environmental Laws" means all national, international and state laws, rules, regulations, treaties and conventions applicable to any Relevant Ship pertaining to the pollution or protection of human health or the environment including, without limitation, the carriage of Materials of Environmental Concern and actual or threatened emissions, spills, releases or discharges of Materials of Environmental Concern;
 
"Event of Default" means any of the events or circumstances described in clause 10.1;
 
"Facility" means the revolving overdraft facility made available by the Bank to the Borrowers pursuant to this Agreement;
 
"Facility Amount" means an amount of up to Twenty million Dollars ($20,000,000) or such other lower amount as the Bank may in its sole discretion determine and notify to the Borrowers in accordance with clause 2.6;
 
"Flag State" means:
 
 
(a)
in relation to Sara, the Republic of Malta; or
 
 
3

 
 
(b)
in relation to each of Hope and Vera, the Republic of Liberia,
 
or, in each such case, such other state or territory designated in writing by the Bank, at the request of a Borrower, as being the Flag State of such Borrower's Ship for the purposes of the Security Documents;
 
"General Assignment" means:
 
 
(a)
in relation to Hope, the Hope General Assignment; or
 
 
(b)
in relation to Vera, the Vera General Assignment,
 
and "General Assignments" means either or both of them;
 
"Government Entity" means and includes (whether having a distinct legal personality or not) any national or local government authority, board, commission, department, division, organ, instrumentality, court or agency and any association, organisation or institution of which any of the foregoing is a member or to whose jurisdiction any of the foregoing is subject or in whose activities any of the foregoing is a participant;
 
"Group" means, together, the AMPNI Guarantor and its Subsidiaries from time to time (including, for the avoidance of doubt, the Aegean Bunkering Guarantor and each Borrower) and "member of the Group" shall be construed accordingly;
 
"Hope" means the motor vessel Hope, a 1980-built, (approximately) 11,910 dwt motor oil tanker registered under the name and in the ownership of the Hope Borrower under the laws and flag of the relevant Flag State with IMO Number 8014186;
 
"Hope Borrower" means Milos I Maritime Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island P.O. Box 1405, Majuro, Marshall Islands and includes its successors in title;
 
"Hope General Assignment" means the first priority general assignment collateral to the Hope Mortgage executed or (as the context may require) to be executed by the Hope Borrower in favour of the Bank in the form set out in schedule 5;
 
"Hope Management Agreement" means the management agreement dated 24 August 2007 made between the Hope Borrower and the Manager or any other agreement previously approved in writing by the Bank between the Hope Borrower and the Manager, providing for the Manager to manage Hope;
 
"Hope Manager's Undertaking" means the undertaking and assignment in respect of Hope executed or (as the context may require) to be executed by the Manager in favour of the Bank in the form set out in schedule 8;
 
"Hope Mortgage" means the first preferred Liberian mortgage over Hope executed or (as the context may require) to be executed by the Hope Borrower in favour of the Bank in the form set out in schedule 4;
 
"Hope Operating Account" means the interest bearing Dollar account of the Hope Borrower opened by the Hope Borrower with the Bank with account number 5104-035767-582 and includes any sub-accounts thereof and any other account designated in writing by the Bank to be the Hope Operating Account for the purposes of this Agreement;
 
"Hope Operating Account Pledge" means a first priority pledge executed or (as the context may require) to be executed by the Hope Borrower in favour of the Bank in respect of the Hope Operating Account in such form as the Bank may in its sole discretion require;
 
"Indebtedness" means any obligation for the payment or repayment of money, whether as principal or as surety and whether present or future, actual or contingent;
 
 
4

 
"ISPS Code" means the International Ship and Port Facility Security Code constituted pursuant to resolution A.924(22) of the International Maritime Organization now set out in Chapter XI-2 of the International Convention for the Safety of Life at Sea 1974 (as amended) as adopted by a Diplomatic Conference of the International Maritime Organisation on Maritime Security in December 2002 and includes any amendments or extensions thereto and any regulation issued pursuant thereto;
 
"ISSC" means, in relation to any Ship, an International Ship Security Certificate issued in respect of such Ship pursuant to the ISPS Code;
 
"Loan" or "Overdraft" means, from time to time and at any relevant time, the aggregate outstanding debit balances on the Overdraft Account;
 
"Management Agreement" means:
 
 
(a)
in relation to Hope, the Hope Management Agreement;
 
 
(b)
in relation to Sara, the Sara Management Agreement; or
 
 
(c)
in relation to Vera, the Vera Management Agreement,
 
and "Management Agreements" means any or all of them;
 
"Manager" means Aegean Bunkering Services Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 or any other person appointed by a Borrower with the prior written consent of the Bank, as the manager of such Borrower's Ship and includes its successors in title;
 
"Manager's Undertaking" means:
 
 
(a)
in relation to Hope, the Hope Manager's Undertaking;
 
 
(b)
in relation to Sara, the Sara Manager's Undertaking; or
 
 
(c)
in relation to Vera, the Vera Manager's Undertaking,
 
and "Manager's Undertakings" means any or all of them;
 
"Margin" means one point two five per cent (1.25%) per annum;
 
"Material of Environmental Concern" means and includes pollutants, contaminants, toxic substances, oil as defined in the United States Oil Pollution Act of 1990 and all hazardous substances as defined in the United States Comprehensive Environmental Response, Compensation and Liability Act 1980;
 
"Maturity Date" means the date falling three hundred and sixty four (364) days after the date of this Agreement or such later date as the Bank may agree in its absolute discretion and notify to the Borrowers pursuant to clause 4.3;
 
"month" means a period beginning in one calendar month and ending in the next calendar month on the day numerically corresponding to the day of the calendar month on which it started, provided that (i) if the period started on the last Banking Day in a calendar month or if there is no such numerically corresponding day, it shall end on the last Banking Day in such next calendar month and (ii) if such numerically corresponding day is not a Banking Day, the period shall end on the next following Banking Day in the same calendar month but if there is no such Banking Day it shall end on the preceding Banking Day and "months" and "monthly" shall be construed accordingly;
 
 
5

 
"Mortgage" means:
 
 
(a)
in relation to Hope, the Hope Mortgage;
 
 
(b)
in relation to Sara, the Sara Mortgage; or
 
 
(c)
in relation to Vera, the Vera Mortgage,
 
and "Mortgages" means any or all of them;
 
"Mortgaged Ship" means, at any relevant time, a Ship which is at such time subject to a Mortgage and/or the Earnings, Insurances and Requisition Compensation (each as defined in the relevant Ship Security Documents) of which are subject to an Encumbrance pursuant to the relevant Security Documents and a Ship shall for the purposes of this Agreement be deemed to be a Mortgaged Ship as from whichever shall be the earlier of (a) the first Drawdown Date under this Agreement and (b) the date that the Mortgage of that Ship shall have been executed and registered in accordance with this Agreement until whichever shall be the earlier of (i) the payment in full of the amount required to be paid to the Bank pursuant to clause 4.4 following the sale or Total Loss of such Ship and (ii) the date on which all moneys owing under the Security Documents have been repaid in full;
 
"Operating Account Pledges" means the Hope Operating Account Pledge, the Sara Operating Account Pledge and the Vera Operating Account Pledge and "Operating Account Pledge" means any of them;
 
"Operating Accounts" means, together the Hope Operating Account, the Sara Operating Account and the Vera Operating Account and "Operating Account" means any of them;
 
"Operator" means any person who is from time to time during the Security Period (as defined in the relevant Ship Security Documents) concerned in the operation of a Ship and falls within the definition of "Company" set out in rule 1.1.2 of the Code;
 
"Overdraft Account" means the interest bearing Dollar account of the Borrowers opened jointly with the Bank with account number 5104-035766-845 and includes any sub-accounts thereof and any other account designated in writing by the Bank to be the Overdraft Account for the purposes of this Agreement;
 
"Overdraft" or "Loan" means, from time to time and at any relevant time, the aggregate outstanding debit balances on the Overdraft Account;
 
"Overnight LIBOR" means, on any date, the London interbank offered rate determined by the Bank to be the day to day rate at which Dollars are offered to prime banks in the London interbank market and published by the British Bankers' Association at or about 11.00 a.m. on page LIBOR01 of the Reuters screen.  If the agreed page is replaced or the service ceases to be available, the Bank may specify another page or service displaying the appropriate rate after consultation with the Borrowers;
 
"Permitted Encumbrance" means any Encumbrance in favour of the Bank created pursuant to the Security Documents and Permitted Liens;
 
"Permitted Liens" means, in relation to a Ship, any lien on such Ship for master's, officer's or crew's wages outstanding in the ordinary course of trading, any lien for salvage and any ship repairer's or outfitter's possessory lien for a sum not (except with the prior written consent of the Bank) exceeding the Casualty Amount (as defined in the relevant Ship Security Documents) for such Ship;
 
"Registry" means, in relation to each Ship, such registrar, commissioner or representative of the relevant Flag State who is duly authorised and empowered to register such Ship, the relevant Borrower's title to such Ship and the relevant Mortgage under the laws and flag of the relevant Flag State;
 
 
6

 
"Related Company" of a person means any Subsidiary of such person, any company or other entity of which such person is a Subsidiary and any Subsidiary of any such company or entity;
 
"Relevant Jurisdiction" means any jurisdiction in which or where any Security Party is incorporated, resident, domiciled, has a permanent establishment, carries on, or has a place of business or is otherwise effectively connected;
 
"Relevant Party" means the Borrowers, any other Security Party and every member of the Group;
 
"Relevant Ship" means the Ships and any other vessel from time to time (whether before or after the date of this Agreement) owned, managed or crewed by, or chartered to, any Relevant Party;
 
"Sara" means the motor vessel Sara, a 1990-built, (approximately) 7,389 dwt motor oil tanker registered under the name and in the ownership of the Sara Borrower under the laws and flag of the relevant Flag State with IMO Number 8814861;
 
"Sara Borrower" means Baldwin Management Co. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 and includes its successors in title;
 
"Sara Management Agreement" means the management agreement dated 9 October 2007 made between the Sara Borrower and the Manager or any other agreement previously approved in writing by the Bank between the Sara Borrower and the Manager, providing for the Manager to manage Sara;
 
"Sara Manager's Undertaking" means the undertaking and assignment in respect of Sara executed or (as the context may require) to be executed by the Manager in favour of the Bank in the form set out in schedule 8;
 
"Sara Mortgage" means the first priority statutory Maltese mortgage over Sara executed or (as the context may require) to be executed by the Sara Borrower in favour of the Bank in the form set out in schedule 2;
 
"Sara Operating Account" means the interest bearing Dollar account of the Sara Borrower opened by the Sara Borrower with the Bank with account number 5104-035767-060 and includes any sub-accounts thereof and any other account designated in writing by the Bank to be the Sara Operating Account for the purposes of this Agreement;
 
"Sara Operating Account Pledge" means a first priority pledge executed or (as the context may require) to be executed by the Sara Borrower in favour of the Bank in respect of the Sara Operating Account in such form as the Bank may in its sole discretion require;
 
"Security Documents" means this Agreement, the Mortgages, the Deed of Covenant, the General Assignments, the Corporate Guarantees, the Operating Account Pledges, the Manager's Undertakings and any other documents as may have been or shall from time to time after the date of this Agreement be executed to secure all or any part of the Overdraft, interest thereon and other moneys from time to time owing by the Borrowers or any of them pursuant to this Agreement (whether or not any such document also secures moneys from time to time owing pursuant to any other document or agreement);
 
"Security Party" means each of the Borrowers, the Corporate Guarantors, the Manager or any other person who may at any time be a party to any of the Security Documents (other than the Bank);
 
"Security Requirement" means the amount in Dollars (as certified by the Bank whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrowers and the Bank) which is, at any relevant time, one hundred per cent (100%) of the aggregate of (a) the Overdraft and (b) the Available Amount at such time;
 
 
7

 
"Security Value" means the amount in Dollars (as certified by the Bank whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrowers and the Bank) which is, at any relevant time, the aggregate of (a) the market value of the Mortgaged Ships as most recently determined in accordance with clause 8.3.2 and (b) the market value of any additional security for the time being actually provided to the Bank pursuant to clause 8.3;
 
"Ship" means:
 
 
(a)
in relation to the Hope Borrower, Hope;
 
 
(b)
in relation to the Sara Borrower, Sara; or
 
 
(c)
in relation to the Vera Borrower, Vera,
 
and "Ships" means any or all of them;
 
"Ship Security Documents" means:
 
 
(a)
in relation to Hope, the Hope Mortgage, the Hope General Assignment and the Hope Manager's Undertaking;
 
 
(b)
in relation to Sara, the Sara Mortgage, the Deed of Covenant and the Sara Manager's Undertaking; or
 
 
(c)
in relation to Vera, the Vera Mortgage, the Vera General Assignment and the Vera Manager's Undertaking;
 
"SMC" means, in relation to a Ship, a safety management certificate issued in respect of such Ship in accordance with rule 13 of the Code;
 
"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 of the voting share capital (or equivalent rights of ownership) of such company or entity or the power to direct its policies and management, whether by contract or otherwise;
 
"Taxes" includes all present and future taxes, levies, imposts, duties, fees or charges of whatever nature together with interest thereon and penalties in respect thereof and "Taxation" shall be construed accordingly;
 
"Termination Date" means the earlier of (a) the Maturity Date and (b) the date on which, or with effect from which, the Facility is cancelled pursuant to the terms of this Agreement;
 
"Total Loss" means, in relation to a Ship:
 
 
(a)
actual, constructive, compromised or arranged total loss of such Ship; or
 
 
(b)
the Compulsory Acquisition of such Ship; or
 
 
(c)
the hijacking, theft, condemnation, capture, seizure, arrest, detention or confiscation of such Ship (other than where the same amounts to the Compulsory Acquisition of such Ship) by any Government Entity, or by persons acting or purporting to act on behalf of any Government Entity, unless such Ship be released and restored to the relevant Borrower from such hijacking, theft, condemnation, capture, seizure, arrest, detention or confiscation within sixty (60) days after the occurrence thereof;
 
"Transferee" has the meaning ascribed thereto in clause 15.4;
 
 
8

 
"Vera" means the motor vessel Vera, a 1985-built, (approximately) 3,720 dwt product tanker, registered under the name and in the ownership of the Vera Borrower and under the laws and flag of the relevant Flag State with IMO Number 8302698;
 
"Vera Borrower" means Vera Navigation S.A. of 80 Broad Street, Monrovia, Liberia and includes its successors in title;
 
"Vera General Assignment" means the first priority general assignment collateral to the Vera Mortgage executed or (as the context may require) to be executed by the Vera Borrower in favour of the Bank in the form set out in schedule 5;
 
"Vera Management Agreement" means the management agreement dated 9 October 2007 made between the Vera Borrower and the Manager or any other agreement previously approved in writing by the Bank between the Vera Borrower and the Manager providing for the Manager to manage Vera;
 
"Vera Manager's Undertaking" means the undertaking and assignment in respect of Vera executed or (as the context may require) to be executed by the Manager in favour of the Bank in the form set out in schedule 8;
 
"Vera Mortgage" means the first preferred Liberian mortgage over Vera executed or (as the context may require) to be executed by the Vera Borrower in favour of the Bank in the form set out in schedule 4;
 
"Vera Operating Account" means an interest bearing Dollar account of the Vera Borrower opened by the Vera Borrower with the Bank and with account number 5104-035767-361 and includes any sub-accounts thereof and any other account designated in writing by the Bank to be the Vera Operating Account for the purposes of this Agreement; and
 
"Vera Operating Account Pledge" means a first priority pledge executed or (as the context may require) to be executed by the Vera Borrower in favour of the Bank in respect of the Vera Operating Account in such form as the Bank may in its sole discretion require.
 
1.3
Headings
 
Clause headings and the table of contents are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement.
 
1.4
Construction of certain terms
 
In this Agreement, unless the context otherwise requires:
 
1.4.1
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;
 
1.4.2
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 amended in accordance with terms thereof, or, as the case may be, with the agreement of the relevant parties;
 
1.4.3
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 agency, authority, central bank or government department or any self-regulatory or other national or supra-national authority;
 
1.4.4
words importing the plural shall include the singular and vice versa;
 
1.4.5
references to a time of day are to London time;
 
 
9

 
1.4.6
references to a person shall be construed as references to an individual, firm, company, corporation, unincorporated body of persons or any Government Entity;
 
1.4.7
references to a "guarantee" include references to an indemnity or other assurance against financial loss 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; and
 
1.4.8
references to any enactment shall be deemed to include references to such enactment as re-enacted, amended or extended.
 
2
Overdraft facility
 
2.1
Agreement to make facility available
 
The Bank, relying upon each of the representations and warranties in clause 7, agrees to make available to the Borrowers jointly and severally, upon and subject to the terms of this Agreement, an overdraft facility for the purposes described in clause 1.1 in an amount not exceeding at any one time the applicable Facility Amount.
 
2.2
Authorisations
 
Each drawing under the Facility may be made only upon receipt by the Bank of a written request (either in the form of a cheque or any other written (including electronic) form agreed between the Bank and the Borrowers) by the Borrowers, duly signed by a person authorised by the Borrowers to request drawings under this Agreement.
 
2.3
Drawdown
 
Subject to the terms and conditions of this Agreement, the Bank shall advance each drawing under the Facility to the Borrowers, jointly and severally, on the relevant Drawdown Date by (a) debiting the amount thereof to the Overdraft Account and (b) paying the proceeds thereof in accordance with the Borrowers' written instructions.
 
2.4
Availability
 
Drawings shall only be made on a Banking Day. The Facility shall cease to be available and no drawings may be made hereunder on or after the Termination Date.
 
2.5
Application of proceeds
 
Without prejudice to the Borrowers' obligations under clause 8.1.3, the Bank shall have no responsibility for the application of the proceeds of the Overdraft or any part thereof by the Borrowers or any of them.
 
2.6
Facility Amount
 
2.6.1
If the Maturity Date is extended in accordance with clause 4.3.1, the Bank shall notify the Borrower of the Facility Amount that shall be applicable to, and available under, the Facility for the period until the extended Maturity Date which Facility Amount, in any event, shall not exceed the aggregate of the Security Value.
 
2.6.2
Any such notification by the Bank shall be sent to the Borrowers together with the Bank's agreement (if any) to extend the Maturity Date pursuant to clause 4.3.1.
 
 
2.6.3
For the purposes of this clause 2.6, the Bank shall be entitled to obtain any valuations of the Ships in accordance with clause 8.3.2 for the purpose of determining the Security Value and the Facility Amount that will apply until the extended Maturity Date.
 
 
10

 
2.6.4
The amount notified by the Bank to the Borrowers under this clause 2.6 shall be binding on the Borrowers and the Bank and shall constitute the applicable Facility Amount for the purposes of this Agreement from the day the notification is sent to the Borrowers until the extended Maturity Date agreed to by the Bank pursuant to clause 4.3.1 and advised in the same notice to the Borrowers and until any further notification by the Bank under this clause 2.6.
 
2.6.5
If as a result of a notification by the Bank pursuant to this clause 2.6, the applicable Facility Amount is reduced, the Borrowers shall prepay forthwith such part of the Overdraft as shall ensure that the Overdraft does not exceed the reduced Facility Amount notified by the Bank to be applicable.
 
2.6.6
The Facility Amount shall in any event be reduced to zero (0) on the Termination Date.
 
3
Interest and Interest Periods
 
3.1
Normal interest rate
 
The Borrowers shall pay interest in respect of the Overdraft at the rate per annum determined by the Bank to be the aggregate of (a) Margin and (b) Overnight LIBOR applicable to borrowings denominated in Dollars on each day.  Such interest shall be calculated and accrue on a daily basis by reference to the amount of the Overdraft outstanding on a daily basis.
 
3.2
Dates of payment
 
Notwithstanding the accrual of interest on a daily basis the Borrowers shall pay interest in respect of the Overdraft on 30 June and on 31 December of each calendar year up to, and including, the Termination Date.
 
3.3
Method of payment
 
Interest payments due hereunder shall be made by way of debit to the Overdraft Account provided that such debit shall not cause the Overdraft to exceed the applicable Facility Amount.  If interest payments due hereunder are not debited to the Overdraft Account as permitted by the preceding sentence, the Borrowers shall pay the amount thereof to the Bank in cash.
 
3.4
Default interest
 
If the Borrowers fail to pay on its due date any sum due under this Agreement, the Borrowers shall pay interest on such sum to the Bank on demand from and including the due date therefor until the date of actual payment (as well after as before judgment) at the rate specified in clause 3.1, increased by an additional two per cent (2%) per annum.  Any such interest which is not paid shall be compounded monthly from any such due date.
 
3.5
Notification of rates
 
The Bank shall advise the Borrowers of the interest rates applied to the Overdraft by bank account statements in respect of the Overdraft Account, which the Bank shall send to the Borrowers at the times and in the manner specified in the terms and conditions of the Overdraft Account as agreed between the Bank and the Borrowers from time to time.
 
4
Repayment and Bank's option to extend
 
4.1
Repayment
 
The Borrowers shall repay the Overdraft to the Bank in full together with accrued interest thereon and any other amounts owing under this Agreement and the other Security Documents on the Termination Date by placing funds to the credit of the Overdraft Account.
 
 
11

 
4.2
Revolving facility
 
The overdraft facility hereby constituted shall be revolving, so that sums repaid may be re-borrowed provided that the Overdraft shall not exceed the applicable Facility Amount at any time.
 
4.3
Bank's option to extend
 
4.3.1
The Bank shall, in its discretion, have the right to extend the Maturity Date for such period (which shall in any event not exceed three hundred and sixty four (364) days) as the Borrowers may request and the Bank may, in its discretion, agree provided that the Borrowers send to the Bank a request in writing to that effect not later than thirty (30) days prior to the then current Maturity Date.  The Bank shall not unreasonably withhold its agreement to grant such extension.  If  at any time following such request the Bank agrees to extend the then current Maturity Date, it shall notify the Borrowers in writing of the new Maturity Date not later than three (3) days prior to the then current Maturity Date and the Borrowers shall, at their cost and expense, enter into and deliver to the Bank such documentation as the Bank may, in its absolute discretion, require in relation to such extension (including, without limitation, amendments of the Mortgages and documents and evidence of the type referred to in schedule 2 in connection with any such amendments).
 
4.3.2
If and when the Maturity Date is extended in accordance with clause 4.3.1 the Bank shall have the right each time on the expiration of the then current Maturity Date to extend the then current Maturity Date for such period as the Borrowers may request and the Bank may, in its discretion, agree and, in each such case, the provisions of clause 4.3.1 shall apply to each such option to extend mutatis mutandis.
 
4.4
Prepayment on Total Loss or sale
 
4.4.1
Before first drawdown
 
On a Ship becoming a Total Loss (or suffering damage or being involved in an incident which, in the opinion of the Bank, may result in such Ship subsequently being determined to be a Total Loss) or sold, before any drawing is made under this Agreement the Facility Amount shall be reduced by such amount as the Bank may require in its sole discretion.
 
4.4.2
Thereafter
 
If a Mortgaged Ship is sold (with the prior consent of the Bank pursuant to the relevant Ship Security Documents) or becomes a Total Loss after any drawing is made under this Agreement, then, on the Disposal Reduction Date for such Mortgaged Ship (a) the Facility Amount shall be reduced to such amount as determined by the Bank to be equal to the Security Value without taking into account the market value of the relevant Mortgaged Ship sold or lost and (b) the Borrowers shall prepay such part of the Overdraft as shall ensure that, immediately after the relevant reduction of the Facility Amount referred to above, the Overdraft does not exceed the then applicable Facility Amount (taking into account the reduction thereof referred to above).
 
4.4.3
Defined terms
 
For the purposes of this clause 4.3:
 
 
(a)
"Disposal Reduction Date" means:
 
 
(i)
in relation to a Mortgaged Ship which has become a Total Loss, its Total Loss Reduction Date; and
 
 
(ii)
in relation to a Mortgaged Ship which is sold in accordance with the provisions of the relevant Ship Security Documents, the date of completion of such sale (but immediately prior to such completion) by the transfer of title to such Mortgaged Ship to the purchaser in exchange for payment of the relevant purchase price;
 
 
12

 
 
(b)
"Total Loss Reduction Date" means, in relation to a Mortgaged Ship which has become a Total Loss, the date which is the earlier of:
 
 
(i)
the date falling one hundred and twenty (120) days after that on which such Mortgaged Ship became a Total Loss; and
 
 
(ii)
the date upon which the relevant insurance proceeds are or Requisition Compensation (as defined in the relevant Ship Security Documents) is, received by the relevant Borrower (or the Bank as such Borrower's assignee pursuant to the relevant Ship Security Documents).
 
4.4.4
For the purpose of this Agreement, a Total Loss in respect of a Ship shall be deemed to have occurred:
 
 
(a)
in the case of an actual total loss of a Ship, on the actual date and at the time such Ship was lost or, if such date is not known, on the date on which such Ship was last reported;
 
 
(b)
in the case of a constructive total loss of a Ship, upon the date and at the time notice of abandonment of such Ship is given to the insurers of such Ship for the time being;
 
 
(c)
in the case of a compromised or arranged total loss of a Ship, on the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the insurers of such Ship;
 
 
(d)
in the case of Compulsory Acquisition of a Ship, on the date upon which the relevant requisition of title or other compulsory acquisition occurs; and
 
 
(e)
in the case of hijacking, theft, condemnation, capture, seizure, arrest, detention or confiscation of a Ship (other than where the same amounts to Compulsory Acquisition of such Ship) by any Government Entity, or by persons purporting to act on behalf of any Government Entity, which deprives the relevant Borrower of the use of such Ship for more than sixty (60) days, upon the expiry of the period of thirty (30) days after the date upon which the relevant hijacking, theft, condemnation, capture, seizure, arrest, detention or confiscation occurred.
 
4.5
Amounts payable on prepayment
 
Any prepayment of all or part of the Overdraft under clauses 4.4, 8.3.1(a), 10.2 or 12 of this Agreement shall be made together with (a) accrued interest on the amount to be prepaid to the date of such prepayment, (b) any additional amount payable under clauses 6.6 or 12.2 and (c) all other sums payable by the Borrowers to the Bank under this Agreement or any of the other Security Documents including, without limitation, any amounts payable under clause 11.
 
5
Fees and expenses
 
5.1
Fees
 
The Borrowers shall pay to the Bank:
 
on the date of this Agreement an arrangement fee of Thirty five thousand Dollars ($35,000); and
 
on each of the dates falling at three (3) monthly intervals after the date of this Agreement until the last day of the Termination Date, and on such day, commitment commission computed from the date of this Agreement (in the case of the first payment of commission) and from the due date of the preceding payment of commission (in the case of each subsequent payment) at the rate of zero point two five per cent (0.25%) per annum on the daily undrawn amount of the applicable Facility Amount.
 
 
13

 
The fees referred to in this clause 5.1 shall be non-refundable and shall be payable whether or not any drawings are made under this Agreement.
 
5.2
Expenses
 
The Borrowers shall pay to the Bank on a full indemnity basis on demand all expenses (including legal, printing and out-of-pocket expenses incurred by the Bank (whether or not any drawing has been made under this Agreement):
 
5.2.1
in connection with the negotiation, preparation, execution and, where relevant, registration of the Security Documents and of any amendment or extension of or the granting of any waiver or consent under, any of the Security Documents; and
 
5.2.2
in contemplation of, or otherwise in connection with, the enforcement of, or preservation of any rights under, any of the Security Documents or otherwise in respect of the moneys owing under any of the Security Documents,
 
together with interest at the rate referred to in clause 3.4 from the date on which such expenses were incurred to the date of payment (as well after as before judgement).
 
5.3
Value added tax
 
All fees and expenses payable pursuant to this clause 5 shall be paid together 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 Bank under this Agreement shall, 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 Borrowers shall pay all stamp, documentary, registration or other like duties or taxes (including any such duties or taxes payable by the Bank) imposed on or in connection with any of the Security Documents, the Management Agreements or the Facility and shall indemnify the Bank against any liability arising by reason of any delay or omission by the Borrowers to pay such duties or taxes.
 
6
Payments and taxes; accounts and calculations
 
6.1
No set-off or counterclaim
 
The Borrowers acknowledge that in performing its obligations under this Agreement, the Bank will be incurring liabilities to third parties in relation to the funding of amounts to the Borrowers, such liabilities matching the liabilities of the Borrowers to the Bank and that it is reasonable for the Bank to be entitled to receive payments from the Borrowers gross on the due date in order that the Bank is put in a position to perform its matching obligations to the relevant third parties.  Accordingly, all payments to be made by the Borrowers or any of them under any of the Security Documents shall be made in full, without any set-off or counterclaim whatsoever and, subject as provided in clause 6.6, free and clear of any deductions or withholdings, in Dollars on the due date to such account of the Bank at such bank in such place as the Bank may from time to time specify for this purpose. All payments applied by the Bank in reduction of the Overdraft shall be deemed to be credited to the Overdraft Account.
 
6.2
Payment by the Bank
 
All sums to be advanced by the Bank to the Borrowers under this Agreement in respect of the Overdraft shall be remitted in Dollars on the relevant Drawdown Date pursuant to clauses 2.2 and 2.3.
 
 
14

 
6.3
Non-Banking Days
 
When any payment under any of the Security 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 unless such Banking Day falls in the next calendar month in which case payment shall be made on the immediately preceding Banking Day.
 
6.4
Calculations
 
All interest and other payments of an annual nature under any of the Security Documents shall accrue from day to day and be calculated on the basis of actual days elapsed and a 360 day year.
 
6.5
Certificates conclusive
 
Any certificate or determination of the Bank as to any rate of interest or any other amount pursuant to and for the purposes of any of the Security Documents shall, in the absence of manifest error, be conclusive and binding on the Borrowers.
 
6.6
Grossing-up for Taxes
 
If at any time the Borrowers are required to make any deduction or withholding in respect of Taxes from any payment due under any of the Security Documents, the sum due from the Borrowers in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Bank 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 required to be made and the Borrowers shall indemnify the Bank against any losses or costs incurred by it by reason of any failure of the Borrowers 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 Borrowers shall promptly deliver to the Bank any receipts, certificates or other proof evidencing the amounts (if any) paid or payable in respect of any deduction or withholding as aforesaid.
 
6.7
Loan account
 
The Bank shall maintain, in accordance with its usual practice, an account or accounts (which, in the case of Sara only, shall be the "Account Current" referred to in the Sara Mortgage and the Deed of Covenant) evidencing the amounts from time to time lent by, owing to and paid to it under the Security Documents.  Such account or accounts shall, in the absence of manifest error, be conclusive as to the amount from time to time owing by the Borrowers under the Security Documents.
 
7
Representations and warranties
 
7.1
Continuing representations and warranties
 
The Borrowers represent and warrant to the Bank that:
 
7.1.1
Due incorporation
 
the Borrowers and each of the other Security Parties are duly incorporated and validly existing in good standing under the laws of their respective countries of incorporation as limited liability companies or (as the case may be) corporations and have power to carry on their respective businesses as they are now being conducted and to own their respective property and other assets;
 
 
15

 
7.1.2
Corporate power
 
each of the Borrowers has power to execute, deliver and perform its obligations under the relevant Management Agreements and the Security Documents to which it is a party and to borrow the Overdraft under this Agreement and each of the other Security Parties has power to execute and deliver and perform its obligations under the Security Documents and the Management Agreements to which it is or is to be a party; all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same and no limitation on the powers of the Borrowers to borrow will be exceeded as a result of borrowing the Overdraft under this Agreement;
 
7.1.3
Binding obligations
 
the Security Documents and the Management Agreements constitute or will, when executed, constitute valid and legally binding obligations of the relevant Security Parties enforceable in accordance with their respective terms;
 
7.1.4
No conflict with other obligations
 
the execution and delivery of, the performance of their respective obligations under, and compliance with the provisions of the relevant Management Agreements and the Security Documents by the relevant Security Parties will not (i) contravene any existing applicable law, statute, rule or regulation or any judgement, decree or permit to which any of the Borrowers or any other Security Party is subject, (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which any of the Borrowers or any other Security Party is a party or is subject or by which it or any of its property is bound, (iii) contravene or conflict with any provision of the memorandum and articles of association/articles of incorporation/by-laws/statutes or other constitutional documents of any of the Borrowers or any other Security Party or (iv) result in the creation or imposition of or oblige any of the Borrowers or any other Security Party or any other member of the Group to create any Encumbrance (other than a Permitted Encumbrance) on the undertakings, assets, rights or revenues of any of the Borrowers or any other Security Party or any other member of the Group;
 
7.1.5
No litigation
 
no litigation, arbitration or administrative proceeding is taking place, pending or, to the knowledge of the officers of any of the Borrowers, threatened against any of the Borrowers or any other Security Party or any other member of the Group which could have a material adverse effect on the business, assets or financial condition of such Borrower or any other Security Party or any other member of the Group or the Group as a whole;
 
7.1.6
No filings required
 
save for the registration of the Mortgages with the relevant Registry, it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of the Management Agreements or any of the Security Documents that they or any other instrument be notarised, filed, recorded, registered or enrolled in any court, public office or elsewhere in any Relevant Jurisdiction or that any stamp, registration or similar tax or charge be paid in any Relevant Jurisdiction on or in relation to the Management Agreements or the Security Documents and the Management Agreements and each of the Security Documents is in proper form for its enforcement in the courts of each Relevant Jurisdiction;
 
7.1.7
Choice of law
 
the choice of English law to govern the Management Agreements and the Security Documents (other than the Mortgages and the Operating Account Pledges), the choice of Maltese law to govern the Sara Mortgage, the choice of Liberian law to govern the Hope Mortgage and the Vera Mortgage and the choice of Greek law to govern the Operating Account Pledges, and the submissions by the Security Parties in the Security Documents to the non-exclusive jurisdiction of the English courts, are valid and binding;
 
 
16

 
7.1.8
No immunity
 
none of the Borrowers nor any other Security Party nor any of their respective assets is entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgement, execution or other enforcement);
 
7.1.9
Consents obtained
 
every consent, authorisation, licence or approval of, or registration with or declaration to, governmental or public bodies or authorities or courts required by any Security Party to authorise, or required by any Security Party in connection with, the execution, delivery, validity, enforceability or admissibility in evidence of each of the Management Agreements and each of the Security Documents or the performance by each Security Party of its obligations under the Management Agreements and the Security Documents to which it is a party has been obtained or made and is in full force and effect and there has been no default in the observance of any of the conditions or restrictions (if any) imposed in, or in connection with, any of the same;
 
7.1.10
Shareholdings
 
 
(a)
each of the Borrower, the Aegean Bunkering Guarantor and the Manager are wholly-owned direct or indirect Subsidiaries of the AMPNI Guarantor; and
 
 
(b)
no less than 20% of the total issued voting share capital of the AMPNI Guarantor is ultimately beneficially owned by Mr Dimitrios Melissanidis;
 
7.1.11
Financial statements correct and complete
 
the unaudited consolidated financial statements of the Group in respect of the financial half-year ended on 30 June 2007 as delivered to the Bank have been prepared in accordance with the Applicable Accounting Principles and present fairly and accurately the consolidated financial position of the Group as at such date and the consolidated results of the operations of the Group for the financial year ended on such date and, as at such date neither the AMPNI Guarantor nor any member of the Group had any significant 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; and
 
7.1.12
No material adverse change
 
there has been no material adverse change in the financial position or the operations of the Borrowers or the Corporate Guarantors or the Manager or any other member of the Group or the Group as a whole, from that described by the Borrowers or any other Security Party to the Bank in the negotiation of this Agreement.
 
7.2
Initial representations and warranties
 
The Borrowers further represent and warrant to the Bank that:
 
7.2.1
Pari passu
 
the obligations of the Borrowers under this Agreement are direct, general and unconditional obligations of the Borrowers and rank at least pari passu with all other present and future unsecured and unsubordinated Indebtedness of the Borrowers except for obligations which are mandatorily preferred by law and not by contract;
 
 
17

 
7.2.2
No default under other Indebtedness
 
none of the Borrowers nor any of their Related Companies nor any other Security Party is (nor would with the giving of notice or lapse of time or the satisfaction of any other condition or combination thereof be) in breach of or in default under any agreement relating to Indebtedness to which it is a party or by which it may be bound;
 
7.2.3
Information
 
the information, exhibits and reports furnished by any Security Party to the Bank in connection with the negotiation and preparation of each of the Security Documents are true and accurate in all material respects and not misleading, do not omit material facts and all reasonable enquiries have been made to verify the facts and statements contained therein; there are no other facts the omission of which would make any fact or statement therein misleading;
 
7.2.4
No withholding Taxes
 
no Taxes are imposed by withholding or otherwise on any payment to be made by any Security Party under the Management Agreements or the Security Documents or are imposed on or by virtue of the execution or delivery by the Security Parties of the Management Agreements or the Security Documents or any other document or instrument to be executed or delivered under any of the Security Documents;
 
7.2.5
No Default
 
no Default has occurred and is continuing;
 
7.2.6
The Ships
 
each Ship is and will, on the Drawdown Date of the first drawing to be made under this Agreement , be:
 
 
(a)
in the absolute ownership of the relevant Borrower who will, on and after such Drawdown Date, be the sole, legal and beneficial owner of such Ship;
 
 
(b)
registered in the name of the relevant Borrower through the offices of the relevant Registry as a ship under the laws and flag of the relevant Flag State;
 
 
(c)
operationally seaworthy and in every way fit for service; and
 
 
(d)
classed with the relevant Classification free of all conditions, requirements or recommendations of the relevant Classification Society;
 
7.2.7
Ships' employment
 
(save as otherwise disclosed by the Borrowers and accepted by the Bank) none of the Ships is nor will, on or before the Drawdown Date of the first drawing to be made under this Agreement, be subject to any charter or contract or to any agreement to enter into any charter or contract which, if entered into after the date of the relevant Ship Security Documents would have required the consent of the Bank and, on or before such Drawdown Date, there will not be any agreement or arrangement whereby the Earnings of such Ship (as defined in the relevant Ship Security Documents) may be shared with any other person;
 
Freedom from Encumbrances
 
none of the Ships, nor her Earnings, Insurances or Requisition Compensation (each as defined in the relevant Ship Security Documents) nor any of the Accounts nor any other properties or rights relating to such Ship which are, or are to be, the subject of any of the Security Documents nor any part thereof will be, on the Drawdown Date of the first drawing to be made under this Agreement, subject to any Encumbrance;
 
 
18

 
7.2.9
Compliance with Environmental Laws and Approvals
 
except as may already have been disclosed by the Borrowers in writing to, and acknowledged in writing by, the Bank:
 
 
(a)
the Borrowers and the other Relevant Parties and, to the best of the Borrowers' knowledge and belief (having made due enquiry), their respective Environmental Affiliates have complied with the provisions of all Environmental Laws;
 
 
(b)
the Borrowers and the other Relevant Parties and, to the best of the Borrowers' knowledge and belief (having made due enquiry), their respective Environmental Affiliates have obtained all Environmental Approvals and are in compliance with all such Environmental Approvals; and
 
 
(c)
none of the Borrowers nor any other Relevant Party nor, to the best of the Borrowers' knowledge and belief (having made due enquiry), any of their respective Environmental Affiliates has received notice of any Environmental Claim that any of the Borrowers or any other Relevant Party or any such Environmental Affiliate is not in compliance with any Environmental Law or any Environmental Approval;
 
7.2.10
No Environmental Claims
 
except as may already have been disclosed by the Borrowers in writing to, and acknowledged in writing by, the Bank, there is no Environmental Claim pending or, to the best of the Borrowers' knowledge and belief, threatened against any Borrower or any Ship or any other Relevant Party or any other Relevant Ship or to the best of the Borrowers' knowledge and belief (having made due enquiry) any of their respective Environmental Affiliates;
 
7.2.11
No potential Environmental Claims
 
except as may already have been disclosed by the Borrowers in writing to, and acknowledged in writing by, the Bank, there has been no emission, spill, release or discharge of a Material of Environmental Concern from the Ship or any other Relevant Ship owned by, managed or crewed by or chartered to the Borrowers nor, (having made due enquiry) to the best of the Borrowers' knowledge and belief, from any Relevant Ship owned by, managed or crewed by or chartered to any other Relevant Party which could give rise to an Environmental Claim;
 
7.2.12
ISM Code and ISPS Code
 
on the first Drawdown Date under this Agreement, each Borrower shall have a valid and current ISSC and SMC in respect of its Ship and each such Ship shall be in compliance with the Code and the ISPS Code; and
 
7.2.13
Copies true and complete
 
the copies of the Management Agreements delivered or to be delivered to the Bank pursuant to clause 9.1 are, or will when delivered be, true and complete copies of such documents; such documents constitute valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and there will have been no amendments or variations thereof or defaults thereunder.
 
7.3
Repetition of representations and warranties
 
On and as of the date of this Agreement and so long as monies are owing (actually or contingently) by the Borrowers under this Agreement or while the Facility is available and (except in relation to the representations and warranties in clause 7.2) the
 
 
19

 
 
Borrowers shall (a) be deemed to repeat the representations and warranties in clauses 7.1 and 7.2 as if made with reference to the facts and circumstances existing on such day and (b) be deemed to further represent and warrant to the Bank that the then latest audited consolidated financial statements of the Group delivered to the Bank (if any) have been prepared in accordance with the Applicable Accounting Principles which have been consistently applied and present fairly and accurately the consolidated financial position of Group as at the end of the financial period to which the same relate and the consolidated results of the operations of the Group for the financial period to which the same relate and, as at the end of such financial period, neither the AMPNI Guarantor nor any other member of the Group had any significant 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.
 
 
8
Undertakings
 
8.1
General
 
The Borrowers hereby jointly and severally undertake with the Bank that, from the date of this Agreement and so long as any moneys are owing under any of the Security Documents, whether actually or contingently, and while the Facility remains available, each Borrower will:
 
8.1.1
Notice of Default
 
promptly inform the Bank of any occurrence of which it becomes aware which might adversely affect the ability of any Security Party to perform its obligations under any of the Security Documents or the Management Agreements and, without limiting the generality of the foregoing, will inform the Bank of any Default forthwith upon becoming aware thereof and will from time to time, if so requested by the Bank, confirm to the Bank in writing that, save as otherwise stated in such confirmation, no Default has occurred and is continuing;
 
8.1.2
Consents and licences
 
without prejudice to clauses 7.1 and 9, obtain or cause to be obtained, maintain in full force and effect and comply in all material respects with the conditions and restrictions (if any) imposed in, or in connection with, every consent, authorisation, licence or approval of governmental or public bodies or authorities or courts and do, or cause to be done, all other acts and things which may from time to time be necessary or desirable under applicable law for the continued due performance of all the obligations of the Security Parties under each of the Security Documents and the Management Agreements;
 
Use of proceeds
 
use the Facility exclusively for the purposes specified in clause 1.1;
 
8.1.4
Pari passu
 
ensure that its obligations under this Agreement shall, without prejudice to clause 8.2 and the security intended to be created by the Security Documents, at all times rank at least pari passu with all its other present and future unsecured and unsubordinated Indebtedness with the exception of any obligations which are mandatorily preferred by law and not by contract;
 
Financial statements
 
prepare or cause to be prepared audited consolidated financial statements of the Group in accordance with the Applicable Accounting Principles consistently applied in respect of each financial year and cause the same to be reported on by the Group's auditors and prepare or cause to be prepared unaudited consolidated financial statements of the Group in respect of each financial half-year on the same basis as the annual financial statements, and deliver to the Bank as many copies of the same as the Bank may reasonably require as soon as practicable but not later than one hundred and eighty (180) days (in the case of audited financial statements) or sixty (60) days (in the case of unaudited financial statements) after the end of the financial period to which they relate;
 
 
20

 
8.1.6
Delivery of reports
 
deliver to the Bank as many copies as the Bank may reasonably require at the time of issue thereof of every report, circular, notice or like document issued by it to its creditors or shareholders in general;
 
Provision of further information
 
provide the Bank with such financial and other information concerning the Group, the Borrowers, the other Security Parties, the other members of the Group and their respective affairs as the Bank may from time to time reasonably require;
 
8.1.8
Obligations under Security Documents
 
duly and punctually perform each of the obligations expressed to be assumed by it under the Security Documents;
 
8.1.9
Compliance with Code
 
and will procure that any Operator will, comply with and ensure that each Ship and any Operator comply with the requirements of the Code, including (but not limited to) the maintenance and renewal of valid certificates pursuant thereto throughout the Security Period (as defined in the relevant Ship Security Documents for such Ship);
 
8.1.10
Withdrawal of DOC and SMC
 
and will procure that any Operator will, immediately inform the Bank if there is any threatened or actual withdrawal of its Operator's DOC or the SMC in respect of any Ship;
 
8.1.11
Issuance of DOC and SMC
 
and will procure that any Operator will, promptly inform the Bank upon the issue to any Borrower or any Operator of a DOC and to each Ship of an SMC or the receipt by any Borrower or any Operator of notification that its application for the same has been refused; and
 
8.1.12
ISPS Code compliance
 
and will procure that the Manager or any Operator will, following the first Drawdown Date under this Agreement:
 
 
(a)
maintain at all times a valid and current ISSC for each Ship;
 
 
(b)
immediately notify the Bank in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC for each Ship; and
 
 
(c)
procure that each Ship will comply at all times with the ISPS Code.
 
8.2
Negative undertakings
 
The Borrowers hereby jointly and severally undertake with the Bank that, from the date of this Agreement and so long as any moneys are owing under the Security Documents, whether actually or contingently, and while all or any part of the Facility remains available, none of the Borrowers will, without the prior written consent of the Bank:
 
 
21

 
8.2.1
Negative pledge
 
permit any Encumbrance (other than a Permitted Encumbrance) by it to subsist, arise or be created or extended over all or any part of its present or future undertaking, assets, rights or revenues to secure or prefer any present or future Indebtedness of any Security Party or any other person;
 
8.2.2
No merger
 
merge or consolidate with any other person or enter into any demerger, amalgamation, corporate reconstruction or corporate redomiciliation of any type;
 
8.2.3
Disposals
 
sell, transfer, abandon lend or otherwise dispose of or cease to exercise direct control over any part (being either alone or, when aggregated with all other disposals falling to be taken into account pursuant to this clause 8.2.3, material in the opinion of the Bank in relation to the undertaking, assets, rights and revenues of such Borrower taken as a whole) of its present or future undertaking, assets, rights or revenues (otherwise than by transfers, sales or disposals for full consideration in the ordinary course of trading, but excluding in any event its Ship or any other rights or assets which are subject to security created by the Security Documents) whether by one or a series of transactions related or not;
 
8.2.4
Other business
 
undertake any business other than the ownership and operation of its Ship and the chartering of such Ship to third parties and will procure that no other Security Party undertakes, without the prior written consent of the Bank, any business other than that conducted by such Security Party on the date of this Agreement;
 
8.2.5
Acquisitions
 
acquire any further assets other than its Ship and rights arising under contracts entered into by or on behalf of such Borrower in the ordinary course of its business of owning, operating and chartering such Ship;
 
8.2.6
Other obligations
 
incur any obligations except for obligations arising under the Management Agreements or the Security Documents to which it is a party or contracts entered into in the ordinary course of its business of owning, operating and chartering its Ship;
 
8.2.7
No borrowing
 
incur any Borrowed Money except for Borrowed Money pursuant to the Security Documents;
 
8.2.8
Repayment of borrowings
 
repay the principal of, or pay interest on, or any other sum in connection with, any of its Borrowed Money except for Borrowed Money pursuant to the Security Documents;
 
8.2.9
Guarantees
 
issue any guarantees or indemnities or otherwise become directly or contingently liable for the obligations of any person, firm, or corporation except pursuant to the Security Documents (except for guarantees or indemnities from time to time required in the ordinary course by any protection and indemnity or war risks association with which its Ship is entered, guarantees required to procure the release of its Ship from any arrest, detention, attachment or levy or guarantees or undertakings required for the salvage of its Ship);
 
 
22

 
8.2.10
Loans
 
make any loans or grant any credit (save for normal trade credit in the ordinary course of business) to any person or agree to do so;
 
8.2.11
Sureties
 
permit any of its Indebtedness to be guaranteed or otherwise assured against financial loss by any person (save for guarantees or indemnities from time to time required in the ordinary course by any protection and indemnity or war risks association with which such Borrower's Ship is entered, guarantees required to procure the release of such Ship from any arrest, detention, attachment or levy or guarantees or undertakings required for the salvage of such Ship);
 
8.2.12
Share capital and distribution
 
 
(a)
purchase or otherwise acquire for value any shares of its capital or distribute any of its present or future assets, undertakings, rights or revenues to any of its shareholders; or
 
 
(b)
declare or pay any dividends to any of its shareholders if an Event of Default has occurred or will or, in the opinion of the Bank, is likely to occur as a result of, or following, the declaration or payment of dividends;
 
8.2.13
Subsidiaries
 
form or acquire any Subsidiaries;
 
8.2.14
Shareholdings
 
 
(a)
change, cause or permit any change in, the legal and/or ultimate beneficial ownership of any of the shares in the AMPNI Guarantor which would result in Mr Dimitrios Melissanidis being at any time the ultimate beneficial owner of less than 20% of the total issued voting share capital of the AMPNI Guarantor; or
 
 
(b)
change, cause or permit any change in, the legal and/or beneficial ownership of any of the shares in any Borrower or the Aegean Bunkering Guarantor or the Manager which would result in any such Security Party ceasing to be a wholly-owned direct or indirect Subsidiary of the AMPNI Guarantor; or
 
8.2.15
Constitutional documents
 
permit, cause or agree to any material amendments or variation of its constitutional documents or any change of its corporate name.
 
8.3
Security value maintenance
 
Security shortfall
 
 
 
prepay within a period of fourteen (14) days of the date of receipt by the Borrowers of the Bank's said notice such sum in Dollars as will result in the Security Requirement after such prepayment being equal to the Security Value; or
 
 
within fourteen (14) days of the date of receipt by the Borrowers of the Bank's said notice constitute to the satisfaction of the Bank such further security for the Overdraft as shall be acceptable to the Bank having a value for security purposes (as determined by the Bank in its absolute discretion) at the date upon which such further security shall be constituted which, when added to the Security Value, shall not be less than the Security Requirement as at such date.
 
 
23

 
The provisions of clause 4.5 shall apply to prepayments made under clause 8.3.1(a).
 
8.3.2
Valuation of Mortgaged Ships
 
Each of the Mortgaged Ships shall, for the purposes of this clause 8.3, be valued as and when the Bank shall in its absolute discretion require, by an independent firm of shipbrokers nominated by the Borrowers and approved by the Bank in its sole discretion or, failing such nomination or approval, appointed by the Bank in its sole discretion.  Each such valuation shall be made without, unless required by the Bank, physical inspection and on the basis of a sale for prompt delivery, for cash at arm's length, on normal commercial terms as between a willing buyer and a willing seller, without taking into account the benefit of any charterparty or other engagement concerning such Mortgaged Ship.
 
The value of each Mortgaged Ship determined in accordance with the provisions of this clause 8.3 shall be binding upon the parties hereto until such time as any further such valuations shall be obtained for such Mortgaged Ship.
 
8.3.3
Information
 
The Borrowers undertake to the Bank to supply to the Bank and to any such shipbrokers such information concerning the Mortgaged Ships and their condition as such shipbrokers may reasonably require for the purpose of making any such valuations.
 
8.3.4
Costs
 
All costs in connection with the Bank obtaining any valuation of the Mortgaged Ships referred to in clause 8.3.2 and in schedule 2, and any valuation either of any additional security for the purposes of ascertaining the Security Value at any time or necessitated by the Borrowers electing to constitute additional security pursuant to clause 8.3.1(b), shall be borne by the Borrowers.
 
8.3.5
Valuation of additional security
 
For the purpose of this clause 8.3, the market value of any additional security provided or to be provided to the Bank shall be determined by the Bank in its absolute discretion without any necessity for the Bank assigning any reason thereto.
 
8.3.6
Documents and evidence
 
In connection with any additional security provided in accordance with this clause 8.3, the Bank shall be entitled to receive such evidence and documents of the kind referred to in schedule 2 as may in the Bank's opinion be appropriate and such favourable legal opinions as the Bank shall in its absolute discretion require.
 
9
Conditions
 
9.1
Documents and evidence
 
The obligation of the Bank to make the Facility available shall be subject to the condition that the Bank, or its duly authorised representatives, shall have received, on or prior to the first drawing under this Agreement, the documents and evidence specified in schedule 1, in form and substance satisfactory to the Bank.
 
 
24

 
9.2
General conditions precedent
 
The obligation of the Bank to make any drawing available under this Agreement shall be subject to the further conditions that, at the time of the giving of a drawing request and at the time of making a drawing:
 
9.2.1
the representations and warranties contained in clauses 7.1, 7.2 and 7.3(b) and clause 4 of each Corporate Guarantee, are true and correct on and as of each such time as if each was made with respect to the facts and circumstances existing at such time; and
 
9.2.2
no Default shall have occurred and be continuing or would result from the making of the relevant drawing.
 
9.3
Waiver of conditions precedent
 
The conditions specified in this clause 9 are inserted solely for the benefit of the Bank and may be waived by the Bank in whole or in part and with or without conditions.
 
9.4
Further conditions precedent
 
Not later than five (5) Banking Days prior to each Drawdown Date, the Bank may request and the Borrowers shall, not later than two (2) Banking Days prior to such date, deliver to the Bank on such request further favourable certificates and/or opinions as to any or all of the matters which are the subject of clauses 7, 8, 9 and 10 of this Agreement and clauses 4 and 5 of the Corporate Guarantees.
 
10
Events of Default
 
10.1
Events
 
There shall be an Event of Default if:
 
10.1.1
Non-payment: any of the Borrowers or any other Security Party fails to pay any sum payable by it under any of the Security Documents at the time, in the currency and in the manner stipulated in the Security Documents (and so that, for this purpose, sums payable on demand shall be treated as having been paid at the stipulated time if paid within three (3) Banking Days of demand); or
 
Breach of insurance obligations and certain other obligations: any of the Borrowers or the Manager or any other person fails to obtain and/or maintain the Insurances (as defined in, and in accordance with the requirements of, the Ship Security Documents) for any of the Mortgaged Ships or if any insurer in respect of such Insurances cancels such Insurances or disclaims liability by reason, in either case, of mis-statement in any proposal for such Insurances or for any other failure or default on the part of the Borrowers or any of them or any other person or the Borrowers or any of them commits any breach of or omits to observe any of the obligations or undertakings expressed to be assumed by it under clauses 8.2 or 8.3 of this Agreement or either Corporate Guarantor commits any breach or omits or fails to observe any of the undertakings expressed to be assumed by it under clause 5.2 or clause 5.3 of the Corporate Guarantee to which it is a party; or
 
Breach of other obligations: any of the Borrowers or any other 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 Security Documents (other than those referred to in clauses 10.1.1 and 10.1.2 above) and, in respect of any such breach or omission which in the opinion of the Bank is capable of remedy, such action as the Bank may require shall not have been taken within fourteen (14) days of the Bank notifying the relevant Security Party of such default and of such required action; or
 
10.1.4
Misrepresentation: any representation or warranty made or deemed to be made or repeated by or in respect of the Borrowers or any other Security Party in or pursuant to any of the Security Documents or in any notice, certificate or statement referred to in or delivered under any of the Security Documents is or proves to have been incorrect or misleading in any material respect; or
 
 
25

 
10.1.5
Cross-default: any Indebtedness of any Security Party or any other Relevant Party is not paid when due or any Indebtedness of any Security Party or any other Relevant Party 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 relevant Security Party or, as the case may be, Relevant Party of a voluntary right of prepayment), or any creditor of any Security Party or any other Relevant Party becomes entitled to declare any such Indebtedness due and payable or any facility or commitment available to any Security Party or any other Relevant Party relating to Indebtedness is withdrawn, suspended or cancelled by reason of any default (however described) of the person concerned unless the relevant Security Party or, as the case may be, Relevant Party shall have satisfied the Bank that such withdrawal, suspension or cancellation will not affect or prejudice in any way the relevant Security Party's or Relevant Party's ability to pay its debts as they fall due and fund its commitments, or any guarantee given by any Security Party or any other Relevant Party in respect of Indebtedness is not honoured when due and called upon; or
 
10.1.6
Legal process: any judgement or order made against any Security Party or any other Relevant Party is not stayed or complied with within seven (7) 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 any Security Party or any other Relevant Party and is not discharged within seven (7) days; or
 
10.1.7
Insolvency: any Security Party or any other Relevant Party is unable or admits inability to pay its debts as they fall due; suspends making payments on any of its debts or announces an intention to do so; becomes insolvent; has assets the value of which is less than the value of its liabilities (taking into account contingent and prospective liabilities); or suffers the declaration of a moratorium in respect of any of its Indebtedness; or
 
10.1.8
Reduction or loss of capital: a meeting is convened by any Security Party or any other Relevant Party for the purpose of passing any resolution to purchase, reduce or redeem any of its share capital; or
 
10.1.9
Winding up: any corporate action, legal proceedings or other procedure or step is taken for the purpose of winding up any Security Party or any other Relevant Party or an order is made or resolution passed for the winding up of any Security Party or any other Relevant Party or a notice is issued convening a meeting for the purpose of passing any such resolution; or
 
10.1.10
Administration: any petition is presented, notice given or other step is taken for the purpose of the appointment of an administrator of any Security Party or any other Relevant Party or the Bank believes that any such petition or other step is imminent or an administration order is made in relation to any Security Party or any other Relevant Party; or
 
10.1.11
Appointment of receivers and managers: any administrative or other receiver is appointed of any Security Party or any other Relevant 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 any other Relevant Party; or
 
10.1.12
Compositions: any corporate action, legal proceedings or other procedures or steps are taken, or negotiations commenced, by any Security Party or any other Relevant Party or by any of its creditors with a view to the general readjustment or rescheduling of all or part of its indebtedness or to proposing any kind of composition, compromise or arrangement involving such company and any of its creditors; or
 
10.1.13
Analogous proceedings: there occurs, in relation to any Security Party or any other Relevant Party, in any country or territory in which any of them carries on business or to the jurisdiction of whose courts any part of their assets is subject, any event which, in the opinion of the Bank, 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 10.1.12 (inclusive) or any Security Party or any other Relevant Party otherwise becomes subject, in any such country or territory, to the operation of any law relating to insolvency, bankruptcy or liquidation; or
 
 
26

 
10.1.14
Cessation of business: any Security Party or any other Relevant Party suspends or ceases or threatens to suspend or cease to carry on its business; or
 
10.1.15
Invalidity: any of the Security Documents shall at any time and for any reason become invalid or unenforceable or otherwise cease to remain in full force and effect, or if the validity or enforceability of any of the Security 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
 
10.1.16
Seizure: all or a material part of the undertakings, assets, rights or revenues of, or shares or other ownership interests in, any Security Party or any other Relevant Party are seized, nationalised, expropriated or compulsorily acquired by or under the authority of any Government Entity; or
 
10.1.17
Unlawfulness: it becomes impossible or unlawful at any time for any Security Party, to fulfil any of the covenants and obligations expressed to be assumed by it in any of the Security Documents or for the Bank to exercise the rights or any of them vested in it under any of the Security Documents or otherwise; or
 
10.1.18
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
 
10.1.19
Encumbrances enforceable: any Encumbrance in respect of any of the property (or part thereof) which is the subject of any of the Security Documents becomes enforceable; or
 
10.1.20
Material adverse change: there occurs, in the opinion of the Bank, a material adverse change in the financial condition or the operations of any of the Borrowers or any other Security Party or any other member of the Group or the Group as a whole, in each case by reference to their respective financial position and operations as described by the Borrowers or any other Security Party to the Bank in the negotiation of this Agreement; or
 
10.1.21
Flag State: the Flag State of a Ship becomes involved in hostilities or civil war or there is a seizure of civil power in the Flag State of a Ship by unconstitutional means if, in any such case such event could in the opinion of the Bank reasonably be expected to have a material adverse effect on the security constituted by any of the Security Documents; or
 
10.1.22
Environmental Claim: any of the Borrowers and/or any other Relevant Party and/or any of their respective Environmental Affiliates fails to comply with any Environmental Law or any Environmental Approval or any Ship or any other Relevant Ship is involved in any incident which gives rise or which may give rise to an Environmental Claim, if in any such case, such non compliance or incident or the consequences thereof could (in the opinion of the Bank) reasonably be expected to have a material adverse effect on the business, assets, operations, property or financial condition of any of the Borrowers or any other Security Party or on the security created by any of the Security Documents; or
 
10.1.23
P&I: any of the Borrowers, the Manager or any other person fails or omits to comply with any requirements of the protection and indemnity association or other insurer with which any Ship is entered for insurance or insured against protection and indemnity risks (including oil pollution risks) to the effect that any cover (including, without limitation, liability for Environmental Claims arising in jurisdictions where the relevant Ship operates or trades) is or may be liable to cancellation, qualification or exclusion at any time; or
 
10.1.24
Arrest: any Ship is arrested, confiscated, seized, taken in execution, impounded, forfeited, detained in the exercise or purported exercise of any possessory lien or other claim or otherwise taken from the possession of the relevant Borrower and such Borrower shall fail to procure the release of its Ship within a period of seven (7) days; or
 
 
27

 
10.1.25
Registration: the registration of any Ship under the laws and flag of the relevant Flag State is cancelled or terminated; or
 
10.1.26
Shareholdings:
 
 
(a)
there is any change in the legal and/or ultimate beneficial ownership of any of the shares in the AMPNI Guarantor which results in Mr Dimitrios Melissanidis being at any time the ultimate beneficial owner of less than 20% of the total issued voting share capital of the AMPNI Guarantor; or
 
 
(b)
there is any change in the legal and/or ultimate beneficial ownership of any of the shares in the AMPNI Guarantor which results in any person or persons acting in concert (other than Mr Dimitrios Melissanidis) becoming at any time the ultimate beneficial owners of more than 50% of the total issued voting share capital of the AMPNI Guarantor or having the control of the AMPNI Guarantor or of its board of directors (and "control" shall have the meaning given to it in the definition of "Subsidiary" in clause 1.2) and the Bank has notified the Borrowers in writing of any changes of the terms of this Agreement and the other Security Documents which the Bank in its discretion wishes to effect, and the Borrowers fail within ten (10) Banking Days following such notification, to agree to such changes and to execute and deliver to the Bank such documents as the Bank may then require in order to effect such changes; or
 
 
(c)
in the legal and/or beneficial ownership of any of the shares in any of the Borrowers or the Manager or the Aegean Bunkering Guarantor which results in any such Security Party ceasing to be a wholly-owned direct or indirect Subsidiary of the AMPNI Guarantor; or
 
10.1.27
Accounts: any moneys are withdrawn from any Account other than in accordance with clause 14; or
 
10.1.28
Listing:  the shares of the AMPNI Guarantor are de-listed or suspended from, or cease to trade (whether temporarily or permanently) on, the New York Stock Exchange; or
 
10.1.29
Consents and authorisations:  any consent, authorisation, licence or approval of, or registration with or declaration to, governmental or public bodies or authorities or courts required by any of the Borrowers or any other Security Party to authorise, or required by any of the Borrowers or any other Security Party in connection with, the execution, delivery, validity, enforceability or admissibility in evidence of any of the Security Documents or the performance by any of the Borrowers or any such Security Party of its obligations under any of the Security Documents is modified in a manner unacceptable to the Bank or is not granted or is revoked or terminated or expires and is not renewed or otherwise ceases to be in full force and effect; or
 
10.1.30
Material events: any other event occurs or circumstance arises which, in the opinion of the Bank, is likely materially and adversely to affect either (i) the ability of any Security Party to perform all or any of their respective obligations under or otherwise to comply with the terms of any of the Security Documents or (ii) the security created by any of the Security Documents.
 
10.2
Acceleration
 
The Bank may, without prejudice to any other rights of the Bank, at any time after the happening of an Event of Default by notice to the Borrowers declare that:
 
10.2.1
the obligation of the Bank to make the Facility available shall be terminated, whereupon the Facility shall be reduced to zero forthwith; and/or
 
 
28

 
the Overdraft and all interest accrued and all other sums payable under the Security Documents have become due and payable, whereupon the same shall, immediately or in accordance with the terms of such notice, become due and payable.
 
10.3
Demand basis
 
If, pursuant to clause 10.2.2, the Bank declares the Overdraft to be due and payable on demand, the Bank may by written notice to the Borrowers (a) call for repayment of the Overdraft on such date as may be specified, whereupon the Overdraft shall become due and payable on the date so specified together with all interest accrued and all other sums payable under this Agreement or (b) withdraw such declaration with effect from the date specified in such notice.
 
11
Indemnities
 
11.1
Miscellaneous indemnities
 
The Borrowers shall on demand indemnify the Bank, without prejudice to any of the Bank's other rights under any of the Security Documents against any loss (including loss of Margin) or expense which the Bank shall certify as sustained or incurred by it as a consequence of:
 
11.1.1
any default in payment by the Borrowers of any sum under any of the Security Documents when due; or
 
11.1.2
the occurrence of any other Event of Default,
 
including, in any such case, but not limited to, any loss or expense sustained or incurred in maintaining or funding the Overdraft or any part thereof or in liquidating or re-employing deposits from third parties acquired to effect or maintain the Overdraft or any part thereof.
 
11.2
Currency indemnity
 
If any sum due from the Borrowers or any of them under any of the Security Documents or any order or judgement given or made in relation thereto has to be converted from the currency (the "first currency") in which the same is payable under the relevant Security Document or under such order or judgement into another currency (the "second currency") for the purpose of (a) making or filing a claim or proof against the Borrowers or any of them, (b) obtaining an order or judgement in any court or other tribunal or (c) enforcing any order or judgement given or made in relation to any of the Security Documents, the Borrowers shall indemnify and hold harmless the Bank from and against any loss suffered as a result of any difference between (i) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (ii) the rate or rates of exchange at which the Bank may in the ordinary course of business purchase the first currency with the second currency upon receipt of a sum paid to it in satisfaction, in whole or in part, of any such order, judgement, claim or proof.  Any amount due from the Borrowers or any of them under this clause 11.2 shall be due as a separate debt and shall not be affected by judgement being obtained for any other sums due under or in respect of any of the Security 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.
 
11.3
Environmental indemnity
 
The Borrowers shall indemnify the Bank on demand and hold the Bank harmless from and against all costs, expenses, payments, charges, losses, demands, liabilities, actions, proceedings (whether civil or criminal), penalties, fines, damages, judgements, orders, sanctions or other outgoings of whatever nature which may be suffered, incurred or paid by, or made or asserted against the Bank at any time, whether before or after the repayment in full of principal and interest under this Agreement, relating to, or arising directly or indirectly in any manner or for any cause or reason whatsoever out of an Environmental Claim made or asserted against the Bank if such Environmental Claim would not have been, or been capable of being, made or asserted against the Bank if it had not entered into any of the Security Documents and/or exercised any of its rights, powers and discretions thereby conferred and/or performed any of its obligations thereunder and/or been involved in any of the transactions contemplated by the Security Documents.
 
 
29

 
11.4
Central Bank or European Central Bank reserve requirements indemnity
 
The Borrowers shall on demand promptly indemnify the Bank against any cost incurred or loss suffered by it as a result of its complying with the minimum reserve requirements of the European Central Bank and/or with respect to maintaining required reserves with the relevant national Central Bank to the extent that such compliance relates to the Facility or the Overdraft or deposits obtained by it to fund or maintain the whole or part of the Overdraft and such cost or loss is not recoverable by the Bank under clause 12.2.
 
12
Unlawfulness and increased costs
 
12.1
Unlawfulness
 
If it is or becomes contrary to any law or regulation for the Bank to make the Facility available or to maintain the Facility or fund the Overdraft or any part thereof, the Bank shall promptly give notice to the Borrowers whereupon (a) the Facility Amount shall be reduced to zero, (b) the obligation of the Bank to make the Facility available shall be terminated and (c) the Borrowers shall be obliged to prepay the Overdraft either (i) forthwith or (ii) on a future specified date not being earlier than the latest date permitted by the relevant law or regulation together with interest accrued to the date of prepayment and all other sums payable by the Borrowers under this Agreement.
 
12.2
Increased costs
 
If the result of any change in, or in the interpretation or application of, or the introduction of, any law or any regulation, request or requirement (whether or not having the force of law, but, if not having the force of law, with which the Bank or, as the case may be, its holding company habitually complies), including (without limitation) those relating to Taxation, capital adequacy, liquidity, reserve assets, cash ratio deposits and special deposits, is to:
 
12.2.1
subject the Bank to Taxes or change the basis of Taxation of the Bank with respect to any payment under any of the Security Documents (other than Taxes or Taxation on the overall net income, profits or gains of the Bank 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 Bank or its holding company in making or continuing to make the Facility available or maintaining or funding all or part of the Overdraft; and/or
 
12.2.3
reduce the amount payable or the effective return to the Bank under any of the Security Documents; and/or
 
12.2.4
reduce the Bank's or its holding company's rate of return on its overall capital by reason of a change in the manner in which it is required to allocate capital resources to the Bank's obligations under any of the Security Documents; and/or
 
12.2.5
require the Bank or its holding company to make a payment or forego a return on or calculated by reference to any amount received or receivable by the Bank under any of the Security Documents; and/or
 
12.2.6
require any Bank or its holding company to incur or sustain a loss (including a loss of future potential profits) by reason of being obliged to deduct all or part of the Facility Amount or the Overdraft from its capital for regulatory purposes;
 
 
30

 
then and in each such case:
 
 
(a)
the Bank shall notify the Borrowers in writing of such event promptly upon its becoming aware of the same; and
 
 
(b)
the Borrowers shall on demand pay to the Bank the amount which the Bank specifies (in a certificate setting forth the basis of the computation of such amount but not including any matters which the Bank or its holding company regards as confidential) is required to compensate the Bank and/or (as the case may be) its holding company for such liability to Taxes, cost, reduction, payment, foregone return or loss.
 
For the purposes of this clause 12.2 (a) the Bank may in good faith allocate or spread costs and/or losses among its assets and liabilities (or any class thereof) on such basis as it considers appropriate and (b) "holding company" means the company or entity (if any) which the consolidated supervision of which a Bank is included.
 
12.3
Exception
 
Nothing in clause 12.2 shall entitle the Bank to receive any amount in respect of compensation for any such liability to Taxes, increased or additional cost, reduction, payment, foregone return or loss to the extent that the same is the subject of an additional payment under clause 6.6.
 
13
Security and set-off
 
13.1
Application of moneys
 
All moneys received by the Bank under or pursuant to any of the Security Documents and expressed to be applicable in accordance with the provisions of this clause 13.1 shall be applied by the Bank in the following manner:
 
13.1.1
first in or toward payment of all unpaid costs, fees, commissions and expenses which may be owing to the Bank under any of the Security Documents;
 
13.1.2
secondly in or towards payment of any arrears of interest owing in respect of the Overdraft or any part thereof;
 
13.1.3
thirdly in or towards repayment of the Overdraft (whether the same is due and payable or not);
 
13.1.4
fourthly in or towards payment to the Bank of any other sums owing to it under any of the Security Documents; and
 
13.1.5
fifthly the surplus (if any) shall be paid to the Borrowers or to whomsoever else may be entitled to receive such surplus.
 
13.2
Set-off
 
Each Borrower authorises the Bank (without prejudice to any of the Bank's rights at law, in equity or otherwise), at any time and without notice to the Borrowers, to apply any credit balance to which such Borrower is then entitled standing upon any account of that Borrower with any branch of the Bank in or towards satisfaction of any sum due and payable from the Borrowers or any of them to the Bank under any of the Security Documents.  For this purpose, the Bank is authorised to purchase with the moneys standing to the credit of such account such other currencies as may be necessary to effect such application.  The Bank shall not be obliged to exercise any right given to it by this clause 13.2.  The Bank shall notify the Borrowers forthwith upon the exercise or purported exercise of any right of set-off giving full details in relation thereto.  Nothing in this clause 13.2 shall be effective to create a charge or other Encumbrance.
 
 
31

 
13.3
Further assurance
 
The Borrowers undertake that the Security Documents shall both at the date of execution and delivery thereof and so long as any moneys are owing under any of the Security Documents be valid and binding obligations of the respective parties thereto and rights of the Bank enforceable in accordance with their respective terms and that they will, at their 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 Bank may be necessary or desirable for perfecting the security contemplated or constituted by the Security Documents.
 
13.4
Conflicts
 
In the event of any conflict between this Agreement and any of the other Borrowers' Security Documents, the provisions of this Agreement shall prevail.
 
14
Accounts
 
14.1
General
 
The Borrowers jointly and severally undertake with the Bank that they will:
 
14.1.1
on or before the first Drawdown Date, open each of the Operating Accounts and the Overdraft Account; and
 
14.1.2
procure that all moneys payable to a Borrower in respect of the Earnings of its Ship (as defined in the relevant Ship Security Documents) shall, unless and until the Bank directs to the contrary pursuant to the relevant Ship Security Documents, be paid to the Operating Account relating to such Ship Provided however that if any of the moneys paid to any of the Accounts are payable in a currency other than Dollars, the Bank shall convert such moneys into Dollars at the Bank's spot rate of exchange at the relevant time for the purchase of Dollars with such currency and the term "spot rate of exchange" shall include any premium and costs of exchange payable in connection with the purchase of Dollars with such currency.
 
14.2
Operating Accounts: withdrawals
 
Unless the Bank otherwise agrees in writing, none of the Borrowers shall be entitled to withdraw any moneys from its Operating Account at any time from the date of this Agreement and so long as any moneys are owing under the Security Documents save that, unless and until a Default shall occur and the Bank shall direct to the contrary, each Borrower may withdraw moneys from its Operating Account for the following purposes:
 
14.2.1
to pay any amount to the Bank in or towards payments of any instalments of interest or the instalment of principal or any other amounts then payable pursuant to the Security Documents;
 
14.2.2
to pay the proper and reasonable expenses of its Ship;
 
14.2.3
to pay the proper and reasonable expenses of administering its affairs; and
 
14.2.4
to make any payment of dividends if not prohibited by clause 8.2.12.
 
14.3
Overdraft Account: withdrawals
 
Unless an Event of Default shall occur and the Bank shall direct to the contrary, the Borrowers may withdraw moneys from the Overdraft Account (but, in the case of moneys so withdrawn under the Facility made available hereunder, subject to the applicable Facility Amount and the other provisions of this Agreement) at any time for the purposes specified in clause 1.1.
 
 
32

 
14.4
Application of Accounts
 
At any time after the occurrence of an Event of Default, the Bank may, without notice to the Borrowers, apply all moneys then standing to the credit of any Account (together with interest from time to time accruing or accrued thereon) in or towards satisfaction of any sums due to the Bank under the Security Documents in the manner specified in clause 13.1.
 
14.5
Deductions
 
The Bank shall be entitled (but not obliged) at any time to deduct from the balance for the time being standing to the credit of any Account all other moneys which may fall due to be paid to the Bank under the terms of this Agreement and/or the other Security Documents or otherwise howsoever in connection with the Overdraft.
 
14.6
Pledging of Operating Accounts
 
The Operating Accounts and all amounts from time to time standing to the credit thereof shall be subject to the security constituted, and the rights conferred by, the Operating Account Pledges.
 
15
Assignment, transfer and lending office
 
15.1
Benefit and burden
 
This Agreement shall be binding upon, and shall enure for the benefit of, the Bank and the Borrowers and their respective successors in title.
 
15.2
No assignment by Borrowers
 
The Borrowers may not assign or transfer any of their respective rights or obligations under this Agreement.
 
15.3
Assignment by Bank
 
The Bank may assign all or any part of its rights under this Agreement or under any of the other Security Documents to any other bank or financial institution (an "Assignee") without the prior consent of the Borrowers (the Borrowers consenting to any such assignment by their execution of this Agreement).
 
15.4
Transfer
 
The Bank may transfer all or any part of its rights, benefits and/or obligations under this Agreement and/or any of the other Security Documents to any one or more banks or other financial institutions (a "Transferee") without the prior consent of the Borrowers (the Borrowers consenting to any such transfer by their execution of this Agreement), if the Transferee, by delivery of such undertaking as the Bank may approve, becomes bound by the terms of this Agreement and agrees to perform all or, as the case may be, part of the Bank's obligations under this Agreement.
 
15.5
Documenting assignments and transfers
 
If the Bank assigns all or any part of its rights or transfers all or any part of its rights, benefits and/or obligations as provided in clause 15.3 or 15.4, the Borrowers undertake, immediately on being requested to do so by the Bank and at the cost of the Bank, to enter into, and procure that the other Security Parties shall enter into, such documents as may be necessary or desirable to transfer to the Assignee or Transferee all or the relevant part of the Bank's interest in the Security Documents and all relevant references in this Agreement to the Bank shall thereafter be construed as a reference to the Bank and/or its Assignee or Transferee (as the case may be) to the extent of their respective interests.
 
 
33

 
15.6
Lending office
 
The Bank shall lend through its office at the address specified in the definition of "Bank" in clause 1.2 or through any other office of the Bank selected from time to time by it through which the Bank wishes to lend for the purposes of this Agreement.  If the office through which the Bank is lending is changed pursuant to this clause 15.6, the Bank shall notify the Borrowers promptly of such change.
 
15.7
Disclosure of information
 
The Bank may disclose to a prospective assignee, transferee or to any other person who may propose entering into contractual relations with the Bank in relation to this Agreement such information about the Borrowers as the Bank shall consider appropriate.
 
16
Notices and other matters
 
16.1
Notices
 
Every notice, request, demand or other communication under this Agreement or (unless otherwise provided therein) under any of the other Security Documents shall:
 
16.1.1
be in writing delivered personally or by first-class prepaid letter (airmail if available) or facsimile transmission or other means of telecommunication in permanent written form;
 
16.1.2
be deemed to have been received, subject as otherwise provided in the relevant Security Document, in the case of a letter, when delivered personally or three (3) days after it has been put in the post and, in the case of a facsimile transmission or other means of telecommunication in permanent written form, at the time of despatch (provided that if the date of despatch is not a business day in the country of the addressee or if the time of despatch is after the close of business in the country of the addressee it shall be deemed to have been received at the opening of business on the next such business day); and
 
16.1.3
be sent:
 
 
(a)
if to the Borrowers or any of them at:
 
c/o Aegean Bunkering Services Inc.
42 Hatzikiriakou Street
185 38 Piraeus
Greece
 
Fax no:             +30 210 458 6243
Attention:          Mrs Theodora Papadogianni
 
 
(b)
if to the Bank at:
 
Piraeus Bank A.E.
47-49 Akti Miaouli
Piraeus 185 36
Greece
 
Fax No:             +30 210 429 2601
Attention:           Relationship Manager
 
or to such other address and/or numbers as is notified by one party to the other party under this Agreement.
 
 
34

 
16.2
No implied waivers, remedies cumulative
 
No failure or delay on the part of the Bank to exercise any power, right or remedy under any of the Security Documents shall operate as a waiver thereof, nor shall any single or partial exercise by the Bank 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 Security Documents are cumulative and are not exclusive of any remedies provided by law.
 
16.3
English language
 
All certificates, instruments and other documents to be delivered under or supplied in connection with any of the Security Documents shall be in the English language or shall be accompanied by a certified English translation upon which the Bank shall be entitled to rely.
 
16.4
Borrowers' obligations
 
16.4.1
Joint and several
 
Notwithstanding anything to the contrary contained in any of the Security Documents, the agreements, obligations and liabilities of the Borrowers herein contained are joint and several and shall be construed accordingly.  Each of the Borrowers agrees and consents to be bound by the Security Documents to which it is, or is to be, a party notwithstanding that any of the other Borrowers which is intended to sign or to be bound may not do so or may not be effectually bound and notwithstanding that any of the Security Documents may be invalid or unenforceable against any of the other Borrowers, whether or not the deficiency is known to the Bank.
 
16.4.2
Borrowers as principal debtors
 
Each Borrower acknowledges and confirms that it is a principal and original debtor in respect of all amounts which may become payable by the Borrowers in accordance with the terms of this Agreement or any of the other Security Documents and agrees that the Bank may also continue to treat it as such, whether or not the Bank is or becomes aware that such Borrower is or has become a surety for any of the other Borrowers.
 
16.4.3
Indemnity
 
The Borrowers hereby agree jointly and severally to keep the Bank fully indemnified on demand against all damages, losses, costs and expenses arising from any failure of any Borrower to perform or discharge any purported obligation or liability of a Borrower which would have been the subject of this Agreement had it been valid and enforceable and which is not or ceases to be valid and enforceable against a Borrower on any ground whatsoever, whether or not known to the Bank (including, without limitation, any irregular exercise or absence of any corporate power or lack of authority of, or breach of duty by, any person purporting to act on behalf of a Borrower (or any legal or other limitation, whether under the Limitation Acts or otherwise or any disability or death, bankruptcy, unsoundness of mind, insolvency, liquidation, dissolution, winding up, administration, receivership, amalgamation, reconstruction or any other incapacity of any person whatsoever (including, in the case of a partnership, a termination or change in the composition of the partnership) or any change of name or style or constitution of any Security Party)).
 
16.4.4
Liability unconditional
 
None of the obligations or liabilities of the Borrowers under this Agreement or any other Security Document shall be discharged or reduced by reason of:
 
 
(a)
the death, bankruptcy, unsoundness of mind, insolvency, liquidation, dissolution, winding-up, administration, receivership, amalgamation, reconstruction or other incapacity of any person whatsoever (including, in the case of a partnership, a termination or change in the composition of the partnership) or any change of name or style or constitution of a Borrower or any other person liable; or
 
 
35

 
 
(b)
the Bank granting any time, indulgence or concession to, or compounding with, discharging, releasing or varying the liability of, a Borrower or any other person liable or renewing, determining, varying or increasing any accommodation, facility or transaction or otherwise dealing with the same in any manner whatsoever or concurring in, accepting, varying any compromise, arrangement or settlement or omitting to claim or enforce payment from a Borrower or any other person liable; or
 
 
(c)
anything done or omitted which but for this provision might operate to exonerate the Borrowers or any of them.
 
16.4.5
Recourse to other security
 
The Bank shall not be obliged to make any claim or demand or to resort to any Security Document or other means of payment now or hereafter held by or available to it for enforcing this Agreement or any of the other Security Documents against a Borrower or any other person liable and no action taken or omitted by the Bank in connection with any such Security Document or other means of payment will discharge, reduce, prejudice or affect the liability of the Borrowers under this Agreement and the other Security Documents to which any of them is, or is to be, a party.
 
16.4.6
Waiver of Borrowers' rights
 
Each Borrower agrees with the Bank that, from the date of this Agreement and so long as any moneys are owing under any of the Security Documents and while the Facility is available, it will not, without the prior written consent of the Bank:
 
 
(a)
exercise any right of subrogation, reimbursement and indemnity against any of the other Borrowers or any other person liable; or
 
 
(b)
demand or accept repayment in whole or in part of any Indebtedness now or hereafter due to such Borrower from any of the other Borrowers or from any other person liable or demand or accept any guarantee, indemnity or other assurance against financial loss or any document or instrument created or evidencing an Encumbrance in respect of the same or dispose of the same; or
 
 
(c)
take any steps to enforce any right against any of the other Borrowers or any other person liable in respect of any such moneys; or
 
 
(d)
claim any set-off or counterclaim against any of the other Borrowers or any other person liable or claiming or proving in competition with the Bank in the liquidation of any of the other Borrowers or any other person liable or have the benefit of, or share in, any payment from or composition with, any of the other Borrowers or any other person liable or any other Security Document now or hereafter held by the Bank for any moneys owing under any of the Security Documents or for the obligations or liabilities of any other person liable but so that, if so directed by the Bank, it will prove for the whole or any part of its claim in the liquidation of any of the other Borrowers or other person liable on terms that the benefit of such proof and all money received by it in respect thereof shall be held on trust for the Bank and applied in or towards discharge of any moneys owing under any of the Security Documents in such manner as the Bank shall deem appropriate.
 
17
Governing law and jurisdiction
 
17.1
Law
 
This Agreement is governed by, and shall be construed in accordance with, English law.
 
 
36

 
17.2
Submission to jurisdiction
 
The Borrowers agree, for the benefit of the Bank, that any legal action or proceedings arising out of or in connection with this Agreement against the Borrowers or any of them or any of their assets may be brought in the English courts.  Each of the Borrowers irrevocably and unconditionally submits to the jurisdiction of such courts and irrevocably designates, appoints and empowers Riches Consulting presently of Old Jarretts Farmhouse, Brantridge Lane, Balcombe, West Sussex RH17 6JR, England to receive for it and on its behalf, service of process issued out of the English courts in any such legal action or proceedings.  The submission to such jurisdiction shall not (and shall not be construed so as to) limit the right of the Bank to take proceedings against the Borrowers or any of them in the courts of any other competent jurisdiction nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.  The parties further agree that only the Courts of England and not those of any other State shall have jurisdiction to determine any claim which the Borrowers or any of them may have against the Bank arising out of or in connection with this Agreement.
 
17.3
Contracts (Rights of Third Parties) Act 1999
 
No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
 
IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed on the date first above written.
 
 
37

 

 
SIGNED by Y. KOUMBIADOU
for and on behalf of
MILOS I MARITIME INC.
 
)
)
)
 
 
/s/ Y. KOUMBIADOU
Attorney-in-Fact
 
     
SIGNED by Y. KOUMBIADOU
for and on behalf of
BALDWIN MANAGEMENT CO.
 
)
)
)
 
 
/s/ Y. KOUMBIADOU
Attorney-in-fact
     
SIGNED by Y. KOUMBIADOU
for and on behalf of
VERA NAVIGATION S.A.
 
)
)
)
 
 
/s/ Y. KOUMBIADOU
Attorney-in-fact
     
SIGNED by M. YOURYI
and by J. DALLAS
for and on behalf of
PIRAEUS BANK A.E.
 
)
)
)
)
)
 
/s/ M. YOURYI
Authorised Signatory
 
/s/ J. DALLAS
Authorised Signatory
 




 
38