DATED: 1st OCTOBER 2018 EURODRY LTD. (THE “GUARANTOR”) -AND- EUROBANK ERGASIAS S.A. (THE “SECURITY TRUSTEE”)
Exhibit 4.18
DATED: 1st OCTOBER 2018
EURODRY LTD.
(THE “GUARANTOR”)
(THE “GUARANTOR”)
-AND-
EUROBANK ERGASIAS S.A.
(THE “SECURITY TRUSTEE”)
(THE “SECURITY TRUSTEE”)
Alassia Building, 13 Defteras Xxxxxxxxxx Xxxxxx 000 00 Xxxxxxx Xxxxxx, Tel x00 000 0000000, 000 0000000. Fax +30 210 4138809.210 8217869
In cooperation with Kyriakides Xxxxxxxxxxxx Law Firm xxx.xxxxxxxx.xx
INDEX
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CLAUSE
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PAGE
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1.
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INTERPRETATION
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1
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2.
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GUARANTEE
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2
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3.
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LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
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2
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4.
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EXPENSES
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2
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5.
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ADJUSTMENT OF TRANSACTIONS
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3
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6.
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PAYMENTS
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3
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7.
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INTEREST
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3
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8.
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SUBORDINATION
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3
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9.
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ENFORCEMENT
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4
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10.
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REPRESENTATIONS AND WARRANTIES
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4
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11.
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UNDERTAKINGS
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5
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12.
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JUDGMENTS AND CURRENCY INDEMNITY
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7
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13.
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SET-OFF
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7
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14.
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NO SET-OFF OR TAX DEDUCTION
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8
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15.
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SUPPLEMENTAL
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8
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16.
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TRANSFER
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9
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17.
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NOTICES
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9
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18.
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INVALIDITY OF LOAN AGREEMENT
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10
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19.
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GOVERNING LAW AND JURISDICTION
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10
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THIS GUARANTEE is made on 1 October 2018
BETWEEN
| (1) |
EURODRY LTD., being a company incorporated in accordance with the laws of the Republic of the Xxxxxxxx Islands, whose registered office is at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000, Xxxxxxxx xx Xxxxxxxx Xxxxxxx (the “Guarantor”); and
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| (2) |
EUROBANK ERGASIAS S.A., a banking societe anonyme duly incorporated under the laws of Greece, having its registered office at 0, Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx, acting
for the purposes of this Agreement through its office at 00, Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx (the “Security Trustee”, which expression includes its successors and assigns).
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BACKGROUND
| (A) |
By a loan agreement dated 1 October 2018 (hereinafter, as same may from time to time be amended or supplemented, the “Loan Agreement”) and made between (i) Ultra One
Shipping Ltd of Liberia (the “Borrower”), as borrower, (ii) the banks and financial institutions listed in Schedule 1 thereto, which on the date hereof comprised only Eurobank Ergasias S.A., as
lenders (the “Lenders” or “a Lender”) and (iii) Eurobank Ergasias S.A., as agent (the “Agent”), arranger, (the “Arranger”) account bank (the “Account Bank”) and security trustee (the “Security Trustee” and together with the
Lenders, the Agent, the Arranger and the Account Bank, the “Creditor Parties”), it was agreed that the Lenders would make available to the Borrower a secured term loan facility of up to
US$15,000,000 for the purposes and upon the terms and conditions set out therein
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| (B) |
By the Agency and Trust Deed dated 1 October 2018 and entered into pursuant to the Loan Agreement, it was agreed that the Security Trustee would hold the Trust Property on trust for the Lenders.
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| (C) |
The execution and delivery to the Security Trustee of this Guarantee is one of the conditions precedent to the availability of the facility under the said Loan Agreement.
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IT IS AGREED as follows:
| 1 |
INTERPRETATION
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| 1.1 |
Defined expressions. Words and expressions defined in the Loan Agreement shall have the same meanings when used in this Guarantee unless the context otherwise requires.
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| 1.2 |
Construction of certain terms. In this Guarantee:
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“bankruptcy” includes a liquidation, receivership or administration and any form of suspension of payments, arrangement
with creditors or reorganisation under any corporate or insolvency law of any country;
“Loan Agreement” means the loan agreement dated 1 October 2018 referred to in Recital (A) and includes any existing or
future amendments or supplements, whether made with the Guarantor’s consent or otherwise.
| 1.3 |
Application of construction and interpretation provisions of Loan Agreement. Clauses 1.2 to 1.7 of the Loan Agreement apply, with any necessary modifications, to this
Guarantee.
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| 1.4 |
Inconsistency between Loan Agreement provisions and this Guarantee. This Guarantee shall be read together with the other Finance Documents, but in case of any conflict
between the Loan Agreement and this Guarantee, the provisions of the Loan Agreement shall prevail.
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| 2 |
GUARANTEE
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| 2.1 |
Guarantee and indemnity. The Guarantor unconditionally and irrevocably:
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| (a) |
guarantees the due payment of all amounts payable by the Borrower under or in connection with the Loan Agreement and every other Finance Document;
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| (b) |
undertakes to pay to the Security Trustee or any other Creditor Party, on the Security Trustee’s demand, any such amount which is not paid by the Borrower when payable under or in connection with the Loan
Agreement and every other Finance Document ; and
|
| (c) |
as a separate, continuing and primary obligation agrees to fully indemnify the Security Trustee on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or
incurred by the Security Trustee as a result of or in connection with any obligation or liability guaranteed by the Guarantor being or becoming unenforceable, invalid, void or illegal; and the amount recoverable under this indemnity shall
be equal to the amount which the Security Trustee would otherwise have been entitled to recover.
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No limit on number of demands. The Security Trustee may serve more than one demand under Clause 2.1.
| 3 |
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
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| 3.1 |
Principal and independent debtor. The Guarantor shall be liable under this Guarantee as a principal and independent debtor and accordingly it shall not have, as regards
this Guarantee, any of the rights or defences of a surety.
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| 3.2 |
Waiver of rights and defences. Without limiting the generality of Clause 3.1, none of the following shall give rise to the Guarantor being discharged, or its having any
cause of action against any Creditor Party:
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| (a) |
any amendment or supplement being made to the Finance Documents;
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| (b) |
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, the Finance Documents;
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| (c) |
any release or loss (even though negligent) of any right or Security Interest created by the Finance Documents;
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| (d) |
any failure (even though negligent) promptly or properly to exercise or enforce any such right or Security Interest, including a failure to realise for its full market value an asset covered by such a Security
Interest; or
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| (e) |
any other Finance Document or any Security Interest now being or later becoming void, unenforceable, illegal or invalid or otherwise defective for any reason, including a neglect to register it.
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| 4 |
EXPENSES
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| 4.1 |
Costs of preservation of rights, enforcement etc. The Guarantor shall pay to the Security Trustee on its demand the amount of all expenses incurred by the Security
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2
Trustee in connection with any matter arising out of this Guarantee or any Security Interest connected with it, including any advice, claim or proceedings
relating to this Guarantee or such a Security Interest.
| 4.2 |
Fees and expenses payable under Loan Agreement. Clause 4.1 is without prejudice to the Guarantor’s liabilities in respect of the Borrower’s obligations under clause 20 of
the Loan Agreement (fees and expenses) and under similar provisions of the other Finance Documents.
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| 5 |
ADJUSTMENT OF TRANSACTIONS
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| 5.1 |
Reinstatement of obligation to pay. The Guarantor shall pay to the Security Trustee or any other Creditor Party on its demand any amount which the Security Trustee or any
other Creditor Party is required, or agrees, to pay pursuant to any claim by, or settlement with, a trustee in bankruptcy of the Borrower or of another Security Party (or similar person) on the ground that the Loan Agreement, or a payment
by the Borrower or of another Security Party, was invalid or on any similar ground.
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| 6 |
PAYMENTS
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| 6.1 |
Method of payments. Any amount due under this Guarantee shall be paid:
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| (a) |
in immediately available funds;
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| (b) |
to such account as the Security Trustee may from time to time notify to the Guarantor;
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| (c) |
without any form of set-off, cross-claim or condition; and free and clear of any tax deduction except a tax deduction which the Guarantor is required by law to make.
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| 7 |
INTEREST
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| 7.1 |
Accrual of interest. Any amount due under this Guarantee shall carry interest after the date on which the Security Trustee or any other Creditor Party demands payment of
it until it is actually paid, unless interest on that same amount also accrues under the Loan Agreement.
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| 7.2 |
Calculation of interest. Interest under this Guarantee shall be calculated and accrue in the same way as interest under clause 5 of the Loan Agreement.
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| 7.3 |
Guarantee extends to interest payable under Loan Agreement. For the avoidance of doubt, it is confirmed that this Guarantee covers all interest payable under the Loan
Agreement, including that payable under clause 7 of the Loan Agreement.
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| 8 |
SUBORDINATION
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| 8.1 |
Subordination of rights of Guarantor. All rights which the Guarantor at any time has (whether in respect of this Guarantee or any other transaction) against the Borrower,
any other Security Party or their respective assets shall be fully subordinated to the rights of the Security Trustee or any other Creditor Party under the Finance Documents; and in particular, the Guarantor shall not:
|
3
| (a) |
claim, or in a bankruptcy of the Borrower or any other Security Party prove for, any amount payable to the Guarantor by the Borrower or any other Security Party, whether in respect of this Guarantee or any other
transaction;
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| (b) |
take or enforce any Security Interest for any such amount;
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| (c) |
claim to set-off any such amount against any amount payable by the Guarantor to the Borrower or any other Security Party; or
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| (d) |
claim any subrogation or other right in respect of any Finance Document or any sum received or recovered by a Creditor Party under a Finance Document.
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| 9 |
ENFORCEMENT
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| 9.1 |
No requirement to commence proceedings against the Borrower. Neither the Security Trustee nor any other Creditor Party will not need to commence any proceedings under, or
enforce any Security Interest created by, the Loan Agreement or any other Finance Document before claiming or commencing proceedings under this Guarantee.
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| 9.2 |
Conclusive evidence of certain matters. However, as against the Guarantor:
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| (a) |
any judgment or order of a court in England or the Xxxxxxxx Islands or any other Pertinent Jurisdiction in connection with the Loan Agreement; and
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| (b) |
any written statement or admission of the Borrower (absent any manifest error) in connection with the Loan Agreement, shall be binding and conclusive as to all matters of fact and law to which it relates.
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| 9.3 |
Suspense account. The Security Trustee and any Creditor Party may, for the purpose of claiming or proving in a bankruptcy of the Borrower or any other Security Party,
place any sum received or recovered under or by virtue of this Guarantee or any Security Interest connected with it on a separate suspense or other nominal account without applying it in satisfaction of the Borrower’s obligations under
the Loan Agreement.
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| 10 |
REPRESENTATIONS AND WARRANTIES
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| 10.1 |
General. The Guarantor represents and warrants to the Security Trustee as follows.
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| 10.2 |
Status. The Guarantor is duly incorporated and validly existing and in good standing under the laws of the Republic of the Xxxxxxxx Islands.
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| 10.3 |
Corporate power. The Guarantor has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:
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| (a) |
to execute this Guarantee; and
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| (b) |
to make all the payments contemplated by. and to comply with this Guarantee.
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| 10.4 |
Consents in force. All the consents referred to in Clause 10.3 remain in force and nothing has occurred which makes any of them liable to revocation.
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| 10.5 |
Legal validity. This Guarantee constitutes the Guarantor’s legal, valid and binding obligations enforceable against the Guarantor in accordance with its terms subject to
any relevant insolvency laws affecting creditors’ rights generally.
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4
| 10.6 |
No conflicts. The execution by the Guarantor of this Guarantee and its compliance with this Guarantee will not involve or lead to a contravention of:
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| (a) |
any law or regulation; or
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| (b) |
the constitutional documents of the Guarantor; or
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| (c) |
any contractual or other obligation or restriction which is binding on the Guarantor or any of its assets.
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| 10.7 |
No withholding taxes. All payments which the Guarantor is liable to make under this Guarantee may be made without deduction or withholding for or on account of any tax
payable under any law of any Pertinent Jurisdiction.
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| 10.8 |
No default. To the knowledge of the Guarantor, no Event of Default or Potential Event of Default has occurred and is continuing.
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| 10.9 |
Information. All information which has been provided in writing by or on behalf of the Guarantor to the Security Trustee or any other Creditor Party in connection with
any Finance Document satisfied the requirements of Clause 11.2; all audited financial statements which have been so provided satisfied the requirements of Clause 11.4; and there has been no material adverse change in the financial
position or state of affairs of the Guarantor from that disclosed in the latest of those accounts which could (in the reasonable opinion of the Security Trustee or any other Creditor Party) affect the solvency of the Guarantor.
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| 10.10 |
No litigation. No legal or administrative action involving the Guarantor has been commenced or taken or, to the Guarantor’s knowledge, is likely to be commenced or taken
which, in either case, would be likely to have a Material Adverse Effect on the Guarantor’s financial position or profitability.
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| 10.11 |
The Guarantor represents and warrants that:
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| (a) |
the its total debt net of cash will not exceed 75% of the total market value of its assets; and
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| (b) |
the Guarantor’s minimum Net Worth listed in Nasdaq will throughout the Security Period be United States Dollars fifteen million (USD15,000,000).
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| 11 |
UNDERTAKINGS
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| 11.1 |
General. The Guarantor undertakes with the Security Trustee to comply with the following provisions of this Clause 11 at all times during the Security Period, except as
the Security Trustee may otherwise permit.
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| 11.2 |
Information provided to be accurate. All financial and other information which is provided in writing by or on behalf of the Guarantor under or in connection with this
Guarantee will be true and not misleading and will not omit any material fact or consideration.
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| 11.3 |
Provision of financial statements. The Guarantor will send to the Security Trustee:
|
| (a) |
as soon as possible, but in no event later than 180 days after the end of each financial year of the Guarantor, the annual audited consolidated financial statements of the Guarantor and its subsidiaries; and
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5
| (b) |
promptly after each written request by the Security Trustee, such further information about the financial condition, commitments and operations of its managed fleet and of each Security Party, as the Security
Trustee may reasonably require.
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| 11.4 |
Form of financial statements. All audited consolidated financial statements delivered under Clause 11.3 will:
|
| (a) |
be prepared in accordance with all applicable laws and GAAP consistently applied;
|
| (b) |
give a true and fair view of the state of affairs of the Guarantor at the date of those accounts and of the profit for the period to which those accounts relate; and
|
| (c) |
fully disclose or provide for all significant liabilities of the Guarantor.
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| 11.5 |
Shareholder and creditor notices. The Guarantor will send the Security Trustee, at the same time as they are despatched, copies of all communications which are despatched
to the Guarantor’s shareholders and creditors or any class of them.
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| 11.6 |
Consents. The Guarantor will maintain in force and promptly obtain or renew, and will promptly send certified copies to the Security Trustee of, all consents required:
|
| (a) |
for the Guarantor to perform its obligations under this Guarantee;
|
| (b) |
for the validity or enforceability of this Guarantee; and the Guarantor will comply with the terms of all such consents.
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| 11.7 |
Maintenance of Security Interests. The Guarantor will:
|
| (a) |
at its own cost, do all that it reasonably can to ensure that any Finance Document to which it is a party validly creates the obligations and the Security Interests which it purports to create; and
|
| (b) |
without limiting the generality of paragraph (a) above, at its own cost, promptly register, file, record or enrol any Finance Document to which it is a party with any court or authority in all Pertinent
Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document to which it is a party, give any notice or take any other step which may be or become necessary or desirable for
any Finance Document to which it is a party to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
| 11.8 |
Notification of litigation. The Guarantor will provide the Security Trustee with details of any legal or administrative action involving the Guarantor as soon as such
action is instituted or it becomes apparent to the Guarantor that it is likely to be instituted, unless it is clear that the legal or administrative action cannot be considered material in the context of this Guarantee.
|
| 11.9 |
Notification of default. The Guarantor will notify the Security Trustee as soon as the Guarantor becomes aware of:
|
| (a) |
the occurrence of an Event of Default or a Potential Event of Default; or
|
| (b) |
any matter which indicates that an Event of Default or a Potential Event of Default may have occurred;
|
and will thereafter keep the Security Trustee fully up-to-date with all developments.
6
| 11.10 |
Maintenance of status. The Guarantor will maintain its separate corporate existence and remain in good standing under the laws of the Republic of the Xxxxxxxx Islands.
|
| 11.11 |
Negative pledge. The Guarantor shall not, and shall procure that the Borrower will not, create or permit to arise any Security Interest over any asset present or future
except Security Interests created or permitted by the Finance Documents and except for Permitted Security Interests.
|
| 11.12 |
No disposal of assets, change of business. The Guarantor will not, and shall procure that the Borrower will not:
|
| (a) |
transfer, lease or otherwise dispose of all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or not except in the usual course of its trading
operations; or
|
| (b) |
make any substantial change to the nature of its business from that existing at the date of this Guarantee.
|
| 11.13 |
No merger etc. The Guarantor shall procure that the Borrower will not, enter into any form of merger, sub-division, amalgamation or other reorganisation, and shall ensure
that throughout the Security Period, no change shall be made to the legal or beneficial ownership of the shares in the Guarantor without the prior written consent of the Lenders, which shall not be unreasonably withheld. For the avoidance
of doubt the Lenders consent and agree to any changes relating to the Guarantor’s trading shares in the normal course of business and confirm that such changes do not violate the terms of this Guarantee.
|
| 11.14 |
Maintenance of ownership of Borrower. The Guarantor shall remain the beneficial owner of the entire issued and allotted share capital of the Borrower, free from any
Security Interest, and shall ensure that throughout the Security Period, no change shall be made to the legal ownership of the shares in the Borrower. For the avoidance of doubt the last sentence of Clause 11.13 above applies to this
Clause 11.14.
|
| 11.15 |
Sanctions.
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The Guarantor confirms and undertakes that it shall (and shall procure that the Borrower shall) comply with all Sanctions applicable to it or the Borrower, in
accordance with the Loan Agreement.
| 12 |
JUDGMENTS AND CURRENCY INDEMNITY
|
| 12.1 |
Judgments relating to Loan Agreement. This Guarantee shall cover any amount payable by the Borrower under or in connection with any judgment relating to the Loan
Agreement.
|
| 12.2 |
Currency indemnity. In addition, clause 21.5 (currency indemnity) of the Loan Agreement shall apply, with any necessary adaptations, in relation to this Guarantee.
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| 13 |
SET-OFF
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| 13.1 |
Application of credit balances. The Security Trustee may at any time after the occurrence of an Event of Default which is continuing without prior notice:
|
| (a) |
apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of the Guarantor at any office in any country of the Security
|
7
Trustee or any other Creditor Party in or towards satisfaction of any sum then due from the Guarantor to the Security Trustee under this Guarantee; and
| (b) |
for that purpose:
|
| (i) |
break, or alter the maturity of, all or any part of a deposit of the Guarantor;
|
| (ii) |
convert or translate all or any part of a deposit or other credit balance into Dollars;
|
| (iii) |
enter into any other transaction or make any entry with regard to the credit balance which the Security Trustee considers appropriate.
|
| 13.2 |
Existing rights unaffected. The Security Trustee shall not be obliged to exercise any of its rights under Clause 13.1; and those rights shall be without prejudice and in
addition to any right of set-off, combination of accounts, charge, lien or other right or remedy to which the Security Trustee or any other Creditor Party is entitled (whether under the general law or any document).
|
| 14 |
NO SET-OFF OR TAX DEDUCTION
|
| 14.1 |
No deductions. All amounts due from the Guarantor under this Guarantee shall be paid:
|
| (a) |
without any form of set-off, cross-claim or condition; and
|
| (b) |
free and clear of any tax deduction except a tax deduction which the Guarantor is required by law to make.
|
| 14.2 |
Grossing-up for taxes. If the Guarantor is required by law to make a tax deduction from any payment:
|
| (a) |
the Guarantor shall notify the Security Trustee as soon as it becomes aware of the requirement;
|
| (b) |
the Guarantor shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises;
|
| (c) |
the amount due in respect of the payment shall be increased by the amount necessary to ensure that the Security Trustee or any other Creditor Party receives and retains (free from any liability relating to the
tax deduction) a net amount which, after the tax deduction, is equal to the full amount which it would otherwise have received.
|
| 14.3 |
Evidence of payment of taxes. Within 1 month after making any tax deduction, the Guarantor shall deliver to the Security Trustee documentary evidence satisfactory to the
Lender that the tax had been paid to the appropriate taxation authority.
|
| 14.4 |
Exclusion of tax on overall net income. In this Clause 14 “tax deduction” means any deduction or withholding for or on account
of any present or future tax except tax on any Creditor Party’s overall net income.
|
| 15 |
SUPPLEMENTAL
|
| 15.1 |
Continuing guarantee. This Guarantee shall remain in force as a continuing security at all times during the Security Period.
|
8
| 15.2 |
Rights cumulative, non-exclusive. The Security Trustee’s rights under and in connection with this Guarantee are cumulative, may be exercised as often as appears expedient
and shall not be taken to exclude or limit any right or remedy conferred by law.
|
| 15.3 |
No impairment of rights under Guarantee. If the Security Trustee omits to exercise, delays in exercising or invalidly exercises any of its rights under this Guarantee,
that shall not impair that or any other right of the Security Trustee under this Guarantee.
|
| 15.4 |
Severability of provisions. If any provision of this Guarantee is or subsequently becomes void, illegal, unenforceable or otherwise invalid, that shall not affect the
validity, legality or enforceability of its other provisions.
|
| 15.5 |
Guarantee not affected by other security. This Guarantee shall not impair, nor be impaired by, any other guarantee, any Security Interest or any right of set-off or
netting or to combine accounts which any Creditor Party may now or later hold in connection with the Loan Agreement.
|
| 15.6 |
Guarantor bound by Loan Agreement. The Guarantor agrees with the Security Trustee to be bound by all provisions of the Loan Agreement which are applicable to the Security
Parties in the same way as if those provisions had been set out (with any necessary modifications) in this Guarantee.
|
| 15.7 |
Applicability of provisions of Guarantee to other Security Interests. Any Security Interest which the Guarantor creates (whether at the time at which it signs this
Guarantee or at any later time) to secure any liability under this Guarantee shall be a principal and independent security, and Clauses 3 and 18 shall, with any necessary modifications, apply to it, notwithstanding that the document
creating the Security Interest neither describes it as a principal or independent security nor includes provisions similar to Clauses 3 and 18.
|
| 15.8 |
Applicability of provisions of Guarantee to other rights. Clauses 3 and 18 shall also apply to any right of set-off or netting or to combine accounts which the Guarantor
creates by an agreement entered into at the time of this Guarantee or at any later time (notwithstanding that the agreement does not include provisions similar to Clauses 3 and 18), being an agreement referring to this Guarantee.
|
| 15.9 |
Third party rights. A person who is not a party to this Guarantee has no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the benefit
of any term of this Guarantee.
|
| 16 |
TRANSFER
|
| 16.1 |
Transfer by Security Trustee. The Security Trustee may transfer its rights under and in connection with this Guarantee to the same extent as it may transfer its rights
under the Loan Agreement.
|
| 17 |
NOTICES
|
| 17.1 |
Notices to Guarantor. Any notice or demand to the Guarantor under or in connection with this Guarantee shall be given by letter or fax at:
|
9
Fax No: x00 0000 000000
Attn: Xxxxxx Xxxxxxx/Xxxxxx Xxxxxxx
Attn: Xxxxxx Xxxxxxx/Xxxxxx Xxxxxxx
or to such other address which the Guarantor may notify to the Security Trustee.
| 17.2 |
Application of certain provisions of Loan Agreement. Clauses 28.3, 28.4 and 28.5 of the Loan Agreement apply to any notice or demand under or in connection with this
Guarantee.
|
| 17.3 |
Validity of demands. A demand under this Guarantee shall be valid notwithstanding that it is served:
|
| (a) |
on the date on which the amount to which it relates is payable by the Borrower under the Loan Agreement;
|
| (b) |
at the same time as the service of a notice under clause 19.2 (events of default) of the Loan Agreement;
|
and a demand under this Guarantee may refer to all amounts payable under or in connection with the Loan Agreement without specifying a particular sum or aggregate sum.
| 17.4 |
Notices to Security Trustee. Any notice to the Security Trustee under or in connection with this Guarantee shall be sent to the same address and in the same manner as
notices to the Security Trustee under the Loan Agreement.
|
| 18 |
INVALIDITY OF LOAN AGREEMENT
|
| 18.1 |
Invalidity of Loan Agreement. In the event of:
|
| (a) |
the Loan Agreement now being or later becoming, with immediate or retrospective effect, void, illegal, unenforceable or otherwise invalid for any other reason whatsoever, whether of a similar kind or not; or
|
| (b) |
without limiting the scope of paragraph (a), a bankruptcy of the Borrower, the introduction of any law or any other matter resulting in the Borrower being discharged from liability under the Loan Agreement, or
the Loan Agreement ceasing to operate (for example, by interest ceasing to accrue),
|
this Guarantee shall cover any amount which would have been or become payable under or in connection with the Loan Agreement if the Loan Agreement had been and
remained entirely valid, legal and enforceable, or the Borrower had not suffered bankruptcy, or any combination of such events or circumstances, as the case may be, and the Borrower had remained fully liable under it for liabilities whether invalidly
incurred or validly incurred but subsequently retrospectively invalidated; and references in this Guarantee to amounts payable by the Borrower under or in connection with the Loan Agreement shall include references to any amount which would have so
been or become payable as aforesaid.
| 18.2 |
Invalidity of Finance Documents. Clause 18.1 also applies to each of the Finance Documents to which the Borrower is a party.
|
| 19 |
GOVERNING LAW AND JURISDICTION
|
| 19.1 |
English law. This Guarantee (and any non contractual obligations connected with it) shall be governed by, and construed in accordance with, English law.
|
10
| 19.2 |
Exclusive English jurisdiction. Subject to Clause 19.3, the courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in
connection with this Guarantee (and any non contractual obligations connected with it).
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| 19.3 |
Choice of forum for the exclusive benefit of the Security Trustee. Clause 19.2 is for the exclusive benefit of the Security Trustee, which reserves the rights:
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| (a) |
to commence proceedings in relation to any matter which arises out of or in connection with this Guarantee in the courts of any country other than England and which have or claim jurisdiction to that matter; and
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| (b) |
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
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The Guarantor shall not commence any proceedings in any country other than England in relation to a matter which arises out of or in connection with this
Guarantee.
| 19.4 |
Process agent. The Guarantor irrevocably appoints Hill Xxxxxxxxx Services (London) Ltd at their office for the time being, presently at The Xxxxxxxxx Xxxxx, 00 Xxxxxxxx
Xxxxxx, Xxxxxx, XX0X 0XX, Xxxxxxx, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with this Guarantee.
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| 19.5 |
Creditor Parties’ rights unaffected. Nothing in this Clause 19 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
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| 19.6 |
Meaning of “proceedings”. In this Clause 19, “proceedings” means proceedings of any kind, including an application for a
provisional or protective measure.
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THIS GUARANTEE has been entered into on the date stated at the beginning of this Guarantee.
11
EXECUTION PAGE
THE GUARANTOR
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Signed by
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)
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XXXXXXXX XXXXXXX
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)
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/s/ XXXXXXXX XXXXXXX |
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for and on behalf of
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)
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)
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||
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of the Xxxxxxxx Islands
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)
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in the presence of
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Witness:
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/s/ KATERINA A. AVRAMIDOU | |
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Name:
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KATERINA A. AVRAMIDOU
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Address:
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DANIOLOS LAW FIRM
13, DEFTERAS XXXXXXXXXX XXX. 000 00 XXXXXXX XXXXXX
TEL.x00 000 0000 000 - FAX x00 000 0000 000
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Occupation:
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Attorney at law
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THE SECURITY TRUSTEE
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Signed by
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)
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XXXXXXX XXXXX
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)
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/s/ XXXXXXX XXXXX |
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and XXXXXXXXX XXXXXXXXXXX
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)
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/s/ XXXXXXXXX XXXXXXXXXXX |
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for and on behalf of
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)
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EUROBANK ERGASIAS S.A.
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)
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in the presence of
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Witness:
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/s/ KATERINA A. AVRAMIDOU | |
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Name:
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KATERINA A. AVRAMIDOU
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Address:
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DANIOLOS LAW FIRM
13, DEFTERAS XXXXXXXXXX XXX. 000 00 XXXXXXX XXXXXX TEL.x00 000 0000 000 - FAX x00 000 0000 000 |
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Occupation:
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Attorney at law
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12
